Fergusson v State of Queensland

Positive Performance Management (Directive 15/20)

Public Sector Act 2022 (Qld) s 91(5)(a), s 130, s 133

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16

Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97

McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7

Schubert v State of Queensland (Queensland Health) [2024] QIRC 128

• [1] Mr Andrew Fergusson is a registered nurse in the Department of Emergency at the Bundaberg Hospital ('Hospital'). On 13 March 2024, Mr Fergusson was involved in an incident with a patient in the Medical Imaging Department at the Hospital. The Hospital is part of the Wide Bay Hospital and Health Service ('Service'). On 22 July 2024, after Mr Fergusson responded to two show cause letters, Ms Debbie Carroll, Chief Executive of the Service, issued a decision which is the subject of this appeal ('Decision').

(a) substantiated the allegation that, on Wednesday, 13 March 2024, while in the Medical Imaging Department of the Hospital, Mr Fergusson placed his own safety and that of a relevant patient at an unacceptable risk by:

(i) using inappropriate physical restraint techniques in an attempt to de-escalate and restrain the patient;

(ii) making threatening and inflammatory comments to the patient; and

(iii) refusing repeated requests from other staff to call security for assistance;

(b) found it was not capable of substantiation that, on Tuesday, 23 April 2024, during a conversation with another staff member of the Hospital, Mr Fergusson failed to comply with the direction to keep confidential the details of the relevant disciplinary process, naming an internal witness who was part of that process; and

(c) found it was not capable of substantiation that, on Tuesday, 23 April 2024 during a conversation in a private capacity with a staff member, Mr Fergusson made comments that were inappropriate and/or threatening towards staff.

• [3] The first allegation ('Allegation One'), being the only one substantiated, is naturally the focus of this appeal. The particulars of Allegation One are that, in rough chronological order:

(a) the radiographer completing the CT scan for the patient advised Mr Fergusson that the scan could not be taken on a number of occasions and that the patient should be returned to Emergency;

(b) Mr Fergusson pushed the patient from a sitting position to a supine position on the CT table, and at the same time, Mr Fergusson is alleged to have said words the effect of "I'm bigger and stronger than you" and "You need to listen here";

(c) Mr Fergusson used his right arm and the full weight of his body to push against the left side of the patient's head forcing the patient's head and neck to bend towards the patient's right shoulder and causing the patient to verbally protest;

(d) Mr Fergusson held the patient with two fingers on the patient's maxilla region and held the patient's head in a forced hyperextension position hanging off the edge of the CT table;

(e) Mr Fergusson placed his hands at the base of both sides of the patient's throat, applying downward pressure to either side of the neck with his fingers in a choking manner, causing the patient to yell out about being "choked" and that he "couldn't breathe";

(f) a staff member told Mr Fergusson to let go of the patient's neck, to which Mr Fergusson replied with words to the effect of "that is a trap squeeze" and continued to hold his hands around the patient's throat and neck area;

(g) throughout the above-mentioned exchanges and actions by Mr Fergusson, the Operational Service Officer asked Mr Fergusson on at least three occasions if security officers should be called, to which Mr Fergusson's alleged response was "no". On the third time that the officer asked whether a call should be made to the security officers, the doctor who was present intervened, replying "yes" to the officer's request, and a radiographer subsequently called security for assistance;

(h) upon the security officer entering the room, Mr Fergusson removed his hands from the base of the patient's throat and neck area and the patient told the security officer that Mr Fergusson had kept grabbing and pushing the patient; and

(i) Mr Fergusson responded that he was not choking the patient, but was only applying pressure to pressure points and simply had the fingers on the side of throat, referring to the technique as a "trap squeeze". Mr Fergusson said that if the patient was a normal person, it would have made him stay still.

• [4] The above-mentioned particulars were drawn from the statements of seven witnesses who either were present at the interaction with the patient, or who attended as security officers. These statements were attached to a show cause notice issued to Mr Fergusson on 2 April 2024. These witnesses were anonymised and referred to as "Person 1" through to "Person 7". The statements were in the form of either "file notes" entered into the Service's records, or entries by those employees into the Service's "Riskman" reporting system. I will refer to them generally as "statements" in these reasons.

• [5] In the Decision, Ms Carroll referred to several of the witness statements. Ms Carroll also referred to Mr Fergusson's response to the show cause and noted that Mr Fergusson did not deny any aspects of Allegation One in his response.

• [6] I have reviewed Mr Fergusson's response to the first show cause notice. There is no express denial of any of the accounts put forward by the witnesses in the statements. Mr Fergusson did put forward his own account of the incident, which I summarise as follows:

(a) Mr Fergusson assisted the patient into the scanning area and then moved off to one side in the control room to observe;

(b) one of the radiographers remained with the patient at the scanner and attempted to adjust the patient's position. Mr Fergusson observed that this upset the patient;

(c) Mr Fergusson observed that the patient was attempting to get off the CT scanner when it was ready for the scan, swearing and fighting the restraints. Mr Fergusson observed that the patient also pulled out his intravenous cannula ('IV'), resulting in uncontrolled bleeding;

(d) Mr Fergusson went back into the scanning room as he was concerned for the patient's safety because the patient was delirious, aggressive and unpredictable, with uncontrolled bleeding;

(e) Mr Fergusson says that he "attempted to de-escalate the patient. When attempts to de-escalate the patient were unsuccessful, [Mr Fergusson] restrained the patient until security arrived, as the patient continued to make threats, and swing his arms";

(f) Mr Fergusson says that the patient would have injured himself or kicked or punched someone, or further exposed others to the active bleeding from his dislodged IV;

(g) Mr Fergusson acknowledged "...that the patient could have been dealt with in a different way"; and

(h) Mr Fergusson stated that he was responding to a situation to protect his own well-being in the absence of any other options.

• [7] Ms Carroll also observed that it was at the point where the patient was becoming upset, agitated and delirious, and was pulling his IV out and trying to get off the scanner, that Mr Fergusson said that he believed it was necessary to restrain the patient in order to prevent injury to the patient and staff.

• [8] Ms Carroll observed that Mr Fergusson did not, in his response, describe the way in which he restrained the patient. Ms Carroll relied on four witness statements that she found to be consistent in respect of Mr Fergusson's alleged actions. Ms Carroll came to the conclusion that those accounts should be accepted, noting the lack of denial of those accounts from Mr Fergusson and the absence of any clear description by Mr Fergusson as to how he restrained the patient.

• [9] Ms Carroll addressed Mr Fergusson's assertions about a "trap squeeze", as opposed to "choking". Ms Carroll considered that the term "trap squeeze" was a "trapezius squeeze" and observed that if performed correctly, a trapezius squeeze would not result in placing one's hands around the patient's neck or throat. Ms Carroll also observed that a trapezius squeeze would have been painful to the patient, because that type of squeeze is used to cause pain to a patient to check their level of consciousness. Ms Carroll therefore reasoned that in this instance a trapezius squeeze would have made the patient's behaviour worse because it would be painful and would not be, as Mr Fergusson suggests, harmless.

• [10] Ms Carroll concluded that, even though the situation was complex and difficult, Mr Fergusson acted in a way that was inappropriate because it heightened the patient's agitation, and it was particularly inappropriate where alternative de-escalation techniques should have been used. Ms Carroll accordingly concluded that Mr Fergusson by his conduct placed himself and colleagues at significant risk.

• [11] Ms Carroll also observed that Mr Fergusson did not specifically respond to the allegation in the witness statements that he made the comments. Ms Carroll referred to one witness in particular, Person 4. Ms Carroll relied on that witness account and concluded that Mr Fergusson had said the things alleged because Mr Fergusson had not denied saying them.

• [12] Finally, Ms Carroll addressed the allegation about refusing requests from staff to call security for assistance. Ms Carroll again observed that in his response, Mr Fergusson did not deny these allegations. Again, Ms Carroll relied on the witness statements referring to those of Person 3 and Person 4. It was on the strength of that uncontested evidence that Ms Carroll concluded that Mr Fergusson had rejected suggestions to call security on at least three occasions while the situation was continuing to escalate.

• [13] Having made those findings of fact in relation to Allegation One, Ms Carroll went on to find that Mr Fergusson's conduct was significant and serious in that Ms Carroll deemed it necessary for Mr Fergusson to consider the risk to the safety of patients and staff. Ms Carroll acknowledged that the patient may have been aggressive, non-compliant, unpredictable and difficult to deal with. However, having regard to the above-mentioned findings of fact, Ms Carroll went on to conclude that none of those things negated Mr Fergusson's responsibility to treat the patient with courtesy and respect in accordance with clause 1.5 of the Code of Conduct for the Queensland Public Service ('Code of Conduct'). Ms Carroll also observed that Mr Fergusson was a senior nurse in terms of the length of experience and concluded that his actions were contrary to expected standards. It was on that basis, as well as the above-mentioned findings of fact, that Ms Carroll went on to form the view that Mr Fergusson was guilty of misconduct; that is, inappropriate or improper conduct in an official capacity within the meaning of s 91(5)(a) of the Public Sector Act 2022 (Qld) ('PS Act').

• [14] The legal test I have applied in deciding this appeal is whether it was 'fair and reasonable' in the circumstances for Ms Carroll to have reached the conclusions she did.[1] I must decide that question having regard to the evidence available to Ms Carroll when she made the Decision unless additional relevant information comes to light. The ordinary or plain meaning of the phrase 'fair and reasonable' is the key. The task is confined to reviewing the decision, which can include the process of decision making, and determining whether the decision-maker drew conclusions that were fairly and reasonably open to be drawn.[2]

• [15] Where the Commission finds that the decision-maker's conclusions were not reasonably open to be drawn, the decision is prone to being set aside as not being fair and reasonable.[3] However, it is not the Commission's role to interfere with decisions that were reasonably open to the decision-maker to come to, even if the Commission might have come to a different position.[4]

• [16] The key focus to Mr Fergusson's first ground of appeal was the Service's decision to not interview any relevant witnesses. I construe this to be an argument that there was a failure to establish the true facts as to what occurred because the Service relied on the written reports filed by each of the relevant witnesses, as opposed to interviewing each witness. Mr Fergusson argues that this meant that the Workplace Investigations (Directive 01/24) ('Investigations Directive') had not been complied with.

• [17] I have reviewed the Investigations Directive. There is no requirement in it that an investigator interview all relevant witnesses, or any witnesses. What is required is that the investigator ensure procedural fairness by giving participants in an investigation a reasonable opportunity to put their case forward, whether in writing or at an interview. The investigator must also consider submissions from parties. Pursuant to the Investigations Directive, an investigation may involve interviews but interviews are not mandatory.

• [18] Ms Carroll relied on the written statements of witnesses. I see no breach of the Investigation Directive in her doing so. A more comprehensive interview-based investigation process could have been carried out by interviewing all witnesses. However, Mr Fergusson does not point to any facts or concessions that conducting interviews would have revealed and which would have, or even could have, made a material difference to the outcome.

• [19] I accept that Mr Fergusson did not expressly deny the alleged facts stated in the relevant witness statements. I find that there was no need for the investigation to be taken further in circumstances where the witness statements were put to Mr Fergusson and not denied. I therefore find that it was fair and reasonable for Ms Carroll to rely on the witness statements when Mr Fergusson responded to them and did not deny any of the factual allegations within them.

• [20] Mr Fergusson argued that Ms Carroll should have sought the opinion of an expert employee about the incident. Such an expert employee would have been, for example, a medical officer or a senior nurse with experience in aggressive patient behaviour and occupational violence. In reply, the Service submits that Ms Carroll possesses a professional nursing background and that the Executive Director of Nursing and Midwifery was consulted as part of the decision-making process. I accept that submission. It is therefore clear that the opinions of expert employees were considered in the process. I therefore reject Mr Fergusson's argument here.

• [21] Mr Fergusson also argued that it was a failure to not interview witnesses having "regard to set terms of reference that would illuminate the course of events and facts for comparative or corroborative benefit". This point is not developed in Mr Fergusson's submissions. However, I do not see that the method by which Ms Carroll investigated the incident to have been unfair or unreasonable. The witness statements were put to Mr Fergusson and he did not deny them. It is also unclear how the lack of a set of terms of reference is said to have made the process unfair and unreasonable. The approach taken by Ms Carroll appears to me to have been appropriate in the circumstances. I therefore do not accept Mr Fergusson's argument on this point.

• [22] Mr Fergusson also argued that the Service failed to comply with the Investigations Directive because it failed to objectively manage the incident on 13 March 2024 or the investigation of it. In his submissions Mr Fergusson says that "the way this case has been managed" leads him to have "no doubt that [he has] been treated as 'guilty' right from the start". Mr Fergusson appears to argue that an investigation where everyone is interviewed against a structured case theory is better than the process that was carried out in this case, and so the outcome of the investigation was not fair and reasonable for that reason. I do not accept that argument because the test is not whether the Service carried out the investigation in the optimal way. It is whether the Service carried out the investigation in a fair and reasonable way. The investigation drawing on the written statements of the witnesses, and Mr Fergusson's response to them, was a fair and reasonable way to conduct the process.

• [23] Mr Fergusson also describes being 'ambushed' by the decision to suspend his employment pending the investigation into the incident. He says that "the grey areas in which we sometimes have to operate in that patient[s] are aggressive and are covered in blood" were not appreciated. I have found above that those involved in the Decision held a significant amount of relevant experience. As the Service submits, Mr Fergusson was represented by his union at two meetings. I do not accept the submission that any "ambush" occurred. I do not therefore accept Mr Fergusson's arguments on this point.

• [24] For the foregoing reasons, this ground of appeal fails.

• [25] Mr Fergusson's second ground of appeal was that Ms Carroll was said to have denied Mr Fergusson procedural fairness by not giving him an opportunity to respond to the relevant witness evidence. This ground of appeal is obviously misconceived. Mr Fergusson was provided with the witness statements when he was asked to show cause on 2 April 2024. This point is not advanced by Mr Fergusson in his submissions. Nor could it be. It is patently clear on the material before me that he was in fact provided with ample opportunity to read, consider and respond to each one of the factual accounts given by the witnesses which Ms Carroll ultimately relied upon in drawing conclusions. This ground of appeal cannot be maintained in my opinion and it must fail accordingly.

• [26] The third ground of appeal concerned alleged irrelevant considerations by Ms Carroll. Mr Fergusson alleges that there were several irrelevant considerations. The first of these was said to be a finding that Mr Fergusson actively prevented staff from calling security where Mr Fergusson argues that Ms Carroll had no evidence that would support such a finding. In his show cause response, Mr Fergusson did not deny the multitude of witness accounts, which are discussed below, that said Mr Fergusson rejected suggestions to call security. In his submissions, Mr Fergusson argued that he did not ignore the suggestion that security be called and did not say "no" when asked to call security.

• [27] Person 4 gave a quite detailed account. In the circumstances where that was provided to Mr Fergusson for a response and he did not deny it, I see no reason for Ms Carroll to consider it less than reliable. It is worthwhile setting out the relevant part of Person 4's statement:

I had stepped back from the situation & along with my fellow Radiographer we were ringing security & another male wardie. The female wardie asked on 2 occasions if [Mr Fergusson] wanted us to call security to which [Mr Fergusson] replied, no. The decision was made after the third question to call security anyway. The male wardie arrived before security & attempted to de-escalate (sic) the situation. Once security arrived, they took over physically restraining the patient, breaking up the patient & [Mr Fergusson], & assisted with getting him back on his bed.

[The patient] became very agitated and began to be verbally abusive. Again, I attempted to verbally de-escalate the situation and offered to call security. [Mr Fergusson] declined security. Patient slid off the CT bed in the ordeal causing his head and neck to be off the CT bed. [Mr Fergusson] placed his full forearm across the [patient's] neck and face. I held the [patient's] right wrist to protect myself and [Mr Fergusson] in case he started to punch. I offered again to call security and [Mr Fergusson] declined again. Patient began (sic) increasingly more agitated and more abusive. began kicking and attempting to punch. I asked [redacted] to call security immediately as I felt the situation was getting out of hand.

• [29] It is apparent that Person 2 and Person 5 were security officers. They obviously gave no evidence as to discussions about whether they should be called to assist.

• [30] Person 6 gave a relatively sparse account and did not mention any discussions that occurred.

• [31] Person 7 focused their attention on the physical interactions between Mr Fergusson and the patient and did not give evidence on what was said by those present.

• [32] Person 1 did mention security. However, it is unclear as to whether he or she was in the room during the early requests for security to attend that other witnesses spoke of. Person 1's statement relevantly says:

All staff were trying to calm the patient down however it was not helping [and] the patient continued to swing his legs and swear at the staff. [Redacted] then went into the room to ask if they wanted security. [Redacted] said yes and [redacted] called security from control room to ask them to attend as soon as possible.

• [33] Person 3 and Person 4 were the only witnesses to give detailed accounts of the verbal exchanges regarding whether security should be called. Persons 2 and 5 were not there at the time and it is unclear whether the others were in the room or nearby in the control room at relevant times. Person 3 and Person 4 appear to me to have given a consistent account in that the request to call security was made several times and that Mr Fergusson said "no" on at least two occasions.

• [34] In his submissions, Mr Fergusson says that he was unable to recall whether other people had asked for security to be called. That was, Mr Fergusson submits, because he "was extremely focused on what [he] was doing at the time." That submission is at odds with the argument on appeal. On the one hand, Mr Fergusson submits that he did not ignore requests for security to be called. On the other hand, he is unable to even recall whether anyone asked.

• [35] Considering the evidence from Person 3 and Person 4 in particular on this point, which Mr Fergusson did not deny in his response, I find that it was open to Ms Carroll to accept the witness statements and conclude that Mr Fergusson resisted staff suggestions to call security.

• [36] Mr Fergusson also argued in support of this third ground of appeal that the "extraneous" finding that he breached the patient's human rights was an irrelevant consideration. That submission appears to be misconceived. There is no finding within the Decision that Mr Fergusson breached the patient's human rights. There was a finding that Mr Fergusson breached the Code of Conduct in failing to treat the patient with courtesy and respect. But even if that finding impliedly also found a breach of the patient's human rights, the task at hand for Ms Carroll was to decide whether disciplinary findings should be made against Mr Fergusson. That involved making findings of fact and also what the gravity of those facts was in relation to whether Mr Fergusson was exposed to being disciplined under the PS Act. In my opinion, it was not an irrelevant consideration to conclude how Mr Fergusson's conduct impacted upon the patient. That is because the patient being treated with courtesy and respect was a key consideration in measuring Mr Fergusson's conduct against an objective standard contained within the Code of Conduct. It was an appropriate consideration in my opinion. The finding of a risk to patient safety was also an appropriate consideration for the same reason.

• [37] Still under this third appeal ground, Mr Fergusson argues that Ms Carroll's finding that he did not de-escalate the patient was an irrelevant consideration. This submission must be rejected. It was relevant to consider whether Mr Fergusson was assisting by way of de-escalation because one of the primary objects of Mr Fergusson's involvement in the process was to assist. The patient was uncooperative and agitated. The patient had refused to stay in the position required to carry out the CT scan. It was at about that point where Mr Fergusson chose to intervene by applying force to the patient. That was, I agree with Ms Carroll's finding, a relevant point in time where the opportunity to de-escalate was missed. I do not therefore accept the submission that this was an irrelevant consideration. In any case, it is clear that Ms Carroll put much less emphasis on this finding than the finding that Mr Fergusson's conduct escalated the situation, breaching the Code of Conduct in the process.

• [38] Finally, under this third ground of appeal, Mr Fergusson argues that Ms Carroll gave preference to evidence of witnesses, which is alleged to have not been put to Mr Fergusson, without providing any adequate basis for preferring the witness evidence. This ground of appeal is also misconceived. As to the allegation that the evidence relied on was not put to Mr Fergusson, that is plainly wrong. The show cause letter to Mr Fergusson on 2 April 2024 had all of the witness statements attached, along with all relevant policies and procedures. Accordingly, I find that there is no basis to this argument and it must be rejected.

Were there unreasonable or weak inferences drawn in the Decision?

• [39] Mr Fergusson's fourth ground of appeal alleged that Ms Carroll made and considered unreasonable or weak inferences in the absence of other evidence. The relevant inferences are said to be:

(c) Mr Fergusson's lack of explicit denial of aspects of the allegation;

(d) Mr Fergusson's motives and subsequent portrayal of his actions;

(e) Mr Fergusson not explicitly stating his position or technique;

(f) relying on witness accounts which are described in the Decision as consistent; and

(g) finding Mr Fergusson inflamed the situation by his remarks without referring to evidence.

• [40] Mr Fergusson does not elaborate in his submissions on this fourth ground of appeal. Regarding the first alleged inference as to Mr Fergusson's state of mind, there appear to me to be two such inferences in the Decision. The first is where Ms Carroll infers that Mr Fergusson was aware the patient was in distress and causing harm to himself but thought it appropriate to intervene physically as described above. The second is where Ms Carroll states "I am satisfied that you are cognisant of your obligations in this regard [the responsibility to treat the patient with courtesy and respect] and the manner of your engagement with the patient may have impacted on patient care". These do not appear to me to be either weak or unreasonable inferences to have drawn. On Mr Fergusson's response, it was clear he understood the patient was in distress and harming himself before Mr Fergusson decided to physically intervene. That left it open to Ms Carroll to infer that Mr Fergusson knew at the time he intervened that the patient was in distress and was harming himself. It was also open to Ms Carroll to infer that Mr Fergusson, at the relevant time, knew of his obligations, even in trying circumstances, to treat the patient with courtesy and respect. Ms Carroll's reasoning for that inference included Mr Fergusson's considerable experience in the field of nursing. I do not consider that to be an unreasonable inference, nor do I consider it to be a weak one. Accordingly, I do not accept this argument.

• [41] As to the inference about the patient's state of mind, this argument is also not developed in submissions. It seems to me to be a reference to Ms Carroll's having inferred that the patient was distressed before and during the altercation with Mr Fergusson. She drew that inference from Mr Fergusson's own response and the relevant witness statements. Mr Fergusson's response included a statement that the patient was "delirious, aggressive, unpredictable, with uncontrolled bleeding." The statement of Person 3 was relevantly that the patient "became very agitated and began to be verbally abusive." Person 5 described the patient at this point in time as "escalated and verbally aggressive". There is no basis to Mr Fergusson's assertion that Ms Carroll's inference that the patient was agitated was unreasonable or weak. On the evidence, it was open to Ms Carroll to draw that inference. This argument is therefore rejected.

• [42] Mr Fergusson's reference in this fourth ground of appeal to his assertions and motives and subsequent portrayal of his actions in the Decision are also not developed in the submissions. There is no part of the Decision wherein Ms Carroll has inferred a motive to Mr Fergusson. To the extent she may have, it could only be that Mr Fergusson, even if well-meaning in his actions, was exercising poor judgement. I find no unfairness or unreasonableness in the portrayal of Mr Fergusson's actions by Ms Carroll in the Decision either. It was a factual account excerpting from the accounts of relevant witnesses. I therefore reject this argument.

• [43] The balance of the points of argument under this fourth ground of appeal are a restatement of others and have been dealt with above. To reiterate, I find that it was open to Ms Carroll to draw an inference from Mr Fergusson's failure to explicitly deny the particular allegations of fact in each witness account. Mr Fergusson had those statements when he prepared and submitted his response. In my opinion, it was fair and reasonable for Ms Carroll to observe that Mr Fergusson did not deny the allegations of fact made by the witnesses. I also find that it was fair and reasonable for Ms Carroll to place weight on the fact that Mr Fergusson did not give any kind of detailed account of his actions in the form of, for example, where he said he placed his hands and how he claims to have moved the patient.

• [44] Also under this fourth ground of appeal, there is the challenge to Ms Carroll's finding that there was consistency between the witness statements regarding the application of force by Mr Fergusson to the patient. The Service's submission, which I accept for the reasons set out below, is that the account given by Person 1, Person 3, Person 4 and Person 7 are all generally consistent in their description of how Mr Fergusson applied force to the patient. What each witness relevantly said was:

(a) Person 1 describes Mr Fergusson as having "had one hand on patients (sic) throat and was repetitively asking the patient to calm down."

(b) Person 2 was not present at the relevant time and gave no evidence of the application of force by Mr Fergusson to the patient.

(c) Person 3 stated that Mr Fergusson forcibly pushed the patient onto his back and that the patient began to slide off the CT bed causing his head and neck to be off the CT bed. Person 3 also stated that Mr Fergusson placed his full forearm across the patient's neck and face and began squeezing the patient's neck in a choking manner whereupon the patient stated that he could not breathe on a number of occasions;

(d) Person 4 stated that Mr Fergusson placed two fingers on the patient's maxilla region and held the Patient's head in a forced hyperextension position hanging off the edge of the CT table. Person 4 also stated that Mr Fergusson had his hand over the patient's throat applying downward pressure to either side of the neck with the fingers and that in response to the Patient's comments, claimed he was not choking the patient, just applying pressure to pressure points. Person 4 stated that the patient was yelling about being choked and not being able to breathe during this time;

(e) Person 5 was not present at the relevant time and gave no evidence as to the application of force by Mr Fergusson to the patient;

(f) Person 6 stated very little in the way of detail, referring instead to the simple statement "We were trying to hold him to prevent him falling off the table, [Mr Fergusson] was near the head end of the patient and the patient was verbally abusive to [Mr Fergusson]".

(g) Person 7 said "Things escalated quite quickly and [Mr Fergusson] proceeded to ram his (R) arm to the (L) side of the patient's head and has bent his head and neck to his (R) shoulder, the patient then went off at [Mr Fergusson] and [Mr Fergusson] has then proceeded to strangle the patient with both hands and I've said to [Mr Fergusson] "what are you doing?""

• [45] Any inconsistencies between those statements is, on my assessment, well within what might be described as "tolerance" for inconsistency amongst accounts from witnesses to the same event based on different perspectives, vocabulary and the level of detail each chose to go to when drafting their statement. Mr Fergusson does not point to any inconsistencies, however. The challenge is made in the appeal grounds that Ms Carroll's inference that the statements were consistent in this regard was unreasonable or weak. But little is said to develop or support that assertion.

• [46] On my assessment, each witness gave their own account in their own words. For example, whilst some may have recalled the patient's comments as to not being able to breathe, others, such as Person 7, simply stated that the patient "went off". These inconsistencies do not suggest any degree of unreliability in my opinion. Again, Mr Fergusson does not point to anything specific either.

...techniques to try to use a pressure point at the base of the neck but I was unable to come from the back of his neck so I had to come from the front to use this pressure point. The patient did say 'I can't breathe' to which I replied 'you are talking, yes you can'.

• [48] Mr Fergusson also says that he released pressure on the patient on three separate occasions but on each occasion the patient would "immediately start swinging his arms around". This submission carries an admission that Mr Fergusson escalated the situation by deciding to apply force to the patient who was clearly agitated and non-compliant to start with. Mr Fergusson also admits that he felt he had "no option but to escalate [his] response and restrain [the patient] against the CT table until help could arrive." That too is an admission that Mr Fergusson did escalate the situation by intervening physically. In my view, this account does not cast any doubt over those of the abovementioned witnesses that Ms Carroll relied upon and inferred were consistent, rightly in my opinion.

• [49] It was open to Ms Carroll to accept the witness statements as generally consistent and reliable accounts as to what Mr Fergusson said and what he did, as well as how the patient responded during the incident. I therefore do not accept Mr Fergusson 's argument on this consistency finding.

• [50] Mr Fergusson's final argument under this fourth ground of appeal was that it was an unreasonable or weak inference that Mr Fergusson's comments to the patient inflamed the situation without referring to supporting evidence. The finding was that Mr Fergusson said to the patient words to the effect of "I'm bigger and stronger than you" and "You need to listen here". Person 4 gave a detailed account, including quotes of those remarks. Ms Carroll, stated in the Decision that Mr Fergusson's comments to the patient were likely to have escalated the patient and were inappropriate and unprofessional. Ms Carroll stated that she relied on Person 4's account when coming to this inference. It is therefore misconceived to argue, as Mr Fergusson has attempted to do, that the inference was drawn without referring to supporting evidence. That submission is plainly wrong.

• [51] The arguments under this fourth ground of appeal are either misconceived or rejected. This fourth ground of appeal therefore fails.

Was there "clinical judgement inflexibility" in the Decision?

• [52] Mr Fergusson's fifth ground of appeal argues that Ms Carroll applied clinical judgement inflexibly through three alleged failures. The first is said to have been a failure to identify the source of clinical judgement that Ms Carroll relied upon by qualification or experience to conceive Mr Fergusson's actions as a nurse. Mr Fergusson does not advance this argument in his submissions. It is clear in the Decision that Ms Carroll referred specifically to clause 1.5 of the Code of Conduct for the Queensland Public Service in respect of Mr Fergusson's obligation to conduct himself in accordance with expected standards. As well, Ms Carroll specifically referred to Mr Fergusson's obligations with respect to the Australian Health Practitioner Regulation Agency and the Nursing and Midwifery Board, Code of Conduct and Standards for Practice. In doing so, Ms Carroll observed that Mr Fergusson's actions were a significant deviation from acceptable standards of practice. This ground of appeal is unsustainable in light of the clear benchmarks against which Ms Carroll assessed Mr Fergusson's conduct.

• [53] The second argument forming the basis of this fifth ground of appeal alleged that Ms Carroll disregarded aspects of Mr Fergusson's response and/or found against him. That is said to have constituted Ms Carroll forming an "implicit view that the force used could never be authorised under the [Service's] MAYBO[5] training program". As well, it was asserted in Mr Fergusson's grounds of appeal that Ms Carroll construed that the failure to complete the MAYBO training meant that Mr Fergusson's actions could only be characterised by using terms such as "forcing" or "choking" that were not consistent with the evidence presented or able to be validated through investigation.

• [54] Based on my earlier findings, it was open to Ms Carroll to conclude from the witnesses statements the manner in which Mr Fergusson applied pressure with his forearm and pressure with both his hands to the patient constituted, on the plain meaning of the word, "forcing" the patient into a particular position. It was also open to Ms Carroll to accept from the relevant witness statements, Person 4 in particular, that the application of force by Mr Fergusson by both his hands to the base of the patient's neck while standing over the prone patient constituted a form of "choking" within the plain meaning of that word as it was used by the witnesses in their statements. That is particularly so in relation to the account given by witnesses, not denied by Mr Fergusson, that the patient complained of not being able to breathe. Again this argument is not advanced in the submissions. Even if the argument has not been abandoned, it must be rejected.

• [55] The third argument advanced in support of this fifth ground of appeal is that Ms Carroll disregarded aspects of Mr Fergusson's response and/or found against him because, Mr Fergusson argues, Ms Carroll formed the view that the incident was better handled by security officers without evidence or justification for forming that view. Once again, this ground of appeal is not advanced in the submissions. On my review of the Decision, Ms Carroll makes no finding about the incident being better handled by security officers. This argument is misconceived and must be rejected.

Was there an unreasonable standard of expectation applied in the Decision?

• [56] Mr Fergusson's sixth ground of appeal argued that Ms Carroll applied an unreasonable standard or expectation in relation to Mr Fergusson's management of the physical restraint by failing to take into account the sudden nature of the incident. This sixth ground of appeal is not developed in submissions. It appears to be an argument that Ms Carroll should have found Mr Fergusson's conduct appropriate because of the sudden nature of the incident. That is, the patient attempting to get up off the screening "table" which was up high at the time and in the process pulling out his IV.

• [57] Ms Carroll set out the relevant sequence of events described in Mr Fergusson's response, including Mr Fergusson's stated belief at the time that if the patient had not been restrained he would have injured himself or staff. Ms Carroll observed that she would have expected Mr Fergusson to have responded at that point in time by lowering the "table" to reduce the risk of the patient harming himself, allowing other staff to call security, and if appropriate, attempting to de-escalate safely. Ms Carroll found that what Mr Fergusson did instead had an escalating effect and was conduct that was well outside of expected standards.

• [58] Ms Carroll described the sequence of relevant events. Although she did not explicitly say that things escalated very quickly, it is obvious to me on my reading of the Decision that the speed at which the patient decided to move was something that Ms Carroll had turned her mind to. That is because she described the events, in sequence as set out in Mr Fergusson's show cause response. Ms Carroll's conclusion was that Mr Fergusson should have intervened in a different way to that which he decided to. This element of the Decision was also fair and reasonable in my opinion because it was open to Ms Carroll to reach that conclusion based on the material before her. Accordingly, this ground of appeal fails.

Should the Positive Performance Management Directive have been used?

• [59] Mr Fergusson's seventh ground of appeal argues that the Service had not complied with the requirements of the directive titled Positive Performance Management (Directive 15/20) in managing Mr Fergusson's performance in relation to this allegation. However, nothing of this ground of appeal was mentioned in the submissions, and it appears Mr Fergusson abandoned this ground of appeal. That may be because that directive on performance management referred to is not relevant to alleged assaults of patients by Hospital staff. Instances of alleged misconduct are not dealt with by way of performance improvement plans ('PIP'). PIPs are plainly aimed at performance, not conduct. This argument is misconceived because there is no logical or legal basis to it. This ground of appeal therefore fails.

Did the Service fail to appropriately apply the test in Briginshaw?

• [60] The eighth ground of appeal is that Ms Carroll failed to appropriately apply the test found in Briginshaw v Briginshaw ('Briginshaw') when weighing up the evidence in reaching a decision about Mr Fergusson's conduct.[6] Mr Fergusson says nothing about Briginshaw in his submissions, though.

• [61] This ground of appeal therefore appears to have been abandoned. If I am wrong about that, I accept that the civil standard of proof referred to in Briginshaw applied to Ms Carroll's findings in the Decision. The principle has been summarised as, "... the civil standard of proof varies according to the gravity of the allegation, its inherent probability (or improbability) and the consequences of an affirmative finding".[7] I find that this was a serious allegation which had potentially severe consequences for Mr Fergusson. In reaching her conclusions, Ms Carroll needed to be positively persuaded by the evidence that Mr Fergusson acted in the way alleged before she could safely conclude that Allegation One was substantiated.

• [62] In the Decision, Ms Carroll stated clearly that she relied on the evidence in the witness statements. Ms Carroll found the statements credible and consistent in relevant parts, as discussed above. Ms Carroll also found that Mr Fergusson's response to that material, which did not deny any of the statements as to fact, was persuasive. On my assessment of the Decision, it was clear that Ms Carroll was positively persuaded to find the facts that she did. I see no error in her doing so in the Briginshaw sense suggested in this eighth appeal ground. This ground of appeal therefore fails.

Submissions not obviously linked to a ground of appeal

• [63] Mr Fergusson makes several submissions which appear not to be obviously linked to any of the grounds of appeal. For example, Mr Fergusson submits that there was no acknowledgement of the risk that this particular patient presented and that none of the witnesses have noted the level of delirium or aggression which the patient was displaying. That is not the case, however. Ms Carroll did acknowledge that the situation was one that presented a serious risk to the safety of patients and staff. The submission that none of the witnesses noted the level of delirium is wrong too. Person 3 stated that the patient "was still confused due to being in post-ictal phase" and that the patient was "obviously confused throughout the whole movement". Person 4 stated that "the patient appeared confused about what was happening re the scan".

• [64] Mr Fergusson also argues that there is no statement from the patient or family regarding the matter of the complaint. This appears to be an argument that the investigation could have been more far reaching and was not fair and reasonable because it did not go to those lengths. As I have found above, there was no breach of procedural fairness by Ms Carroll in the process that resulted in the Decision. The fact that one can conceive of a more perfect or thorough form of investigation than that which was carried out does not automatically mean the investigation was not fair and reasonable. Ample evidence existed in the form of written statements from witnesses who had good capacity to observe the incident. That evidence was put to Mr Fergusson and he did not deny it. In those circumstances the investigation could not reasonably be criticised for going no further. Ms Carroll was at liberty to accept that this amounted to an admission by Mr Fergusson of the facts those witnesses stated.

• [65] The submission that no statement was taken from the doctor present at the incident is also not correct. As the Service points out in its submissions, that statement was contained in the material provided to Mr Fergusson when his response was sought.

• [66] Mr Fergusson's submission that the Service's Department of Human Resources failed to take his allegations about a breach of confidentiality seriously does not have any bearing on the appeal. In any case, I accept the Service's submissions in reply to this point. It says that Mr Fergusson was informed that the Service takes concerns of this nature very seriously. He was asked to provide further details so that the concerns could be investigated.

• [67] Mr Fergusson also claims that the timing of the disciplinary process was elongated. This is more of a complaint rather than a submission that the process took so long that by virtue of that fact, it rendered the Decision, or process giving rise to it, unfair and unreasonable. To the extent that this submission may constitute an argument that the process was not fair and reasonable because it took so long, I accept the Service's submissions in this regard. There were several substantial delays in the process that were requested by Mr Fergusson's union on behalf of Mr Fergusson. Beyond those, I do not see that any delay that arose due to the Service's conduct was so lengthy that it rendered the process, or Decision, less than fair and reasonable.

• [68] Upon reviewing the Decision, I find that each of the conclusions reached within it were open to Ms Carroll based on the material she had before her. I do not accept any of the grounds of appeal advanced by Mr Fergusson. The appeal has therefore failed to establish that the Decision was not fair and reasonable. Accordingly, I dismiss the appeal and confirm the Decision.

[1] Industrial Relations Act 2016 (Qld), s 562B(3) ('IR Act'); Public Sector Act 2022 (Qld), ss 130, 133.

[2] Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16, [25].

[3] Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97, [155].

[4] Schubert v State of Queensland (Queensland Health) [2024] QIRC 128, [8].

[5] MAYBO training is a reference to conflict management and physical intervention training courses provided by a company bearing that name and which specialises in that kind of training.

[6] [1938] HCA 34; (1938) 60 CLR 336.

[7] McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7, [25].