Cross-examination of Dr Maiocchi
72 Dr Maiocchi was cross-examined at some length by Ms Horvath, who appeared for Dr Wilson. Dr Maiocchi acknowledged that some of her previous supervisors had recommended in her College mid-term and end-of-term rotation reports that she needed further to develop her English communication skills. She added, however, that none of them told her that lack of further improvement would stop her from achieving College Fellowship. Upon closer questioning, Dr Maiocchi then acknowledged that her first supervisor had told her that her level of English was not appropriate for a psychiatrist.
73 Dr Maiocchi further acknowledged under cross-examination that her supervisor at Wyong Hospital had noted in Dr Maiocchi's rotation report dated 15 January 2008 that one of the areas needing development was her knowledge of basic sciences and psychopharmacology. Her supervisor (Dr Furst) also noted:
This trainee is performing below my expectations of a third year registrar & will require improved communication skills & knowledge base in order to practice in a safe manner without a higher level of supervision.
74 Dr Maiocchi further acknowledged that another of her supervisors, Dr Robyn Bradley, commented that her accent impaired her effective communication.
75 Another mid-term rotation report dated 22 October 2009 by Dr Robert Russell was also drawn to Dr Maiocchi's attention and, in particular, the following comments in it:
1. Stress management - dealing with some colleagues who don't share her values & attitudes.
2. Understandable ESL arises in some situations.
Dr Maiocchi acknowledged that Dr Russell was her supervisor in the term immediately prior to her term at Northside Clinic. Dr Maiocchi commented that this was a mid-term evaluation and that she was preparing for her exams and was "really stressed because of my level of demand at work and study" (sic). She said that she regarded Dr Russell's comments as supportive, unlike Dr Wilson's mid-term evaluation, which she regarded as threatening her progress.
76 Dr Maiocchi rejected the proposition that the purpose of the 2010 remediation plan was to help her pass the term at Northside Clinic. She said it was based "in negative evaluation that it did not represent what I felt about myself" and that she was told that she was "the worst registrar ever".
77 Dr Maiocchi explained that when she said that the College had objectively assessed her proficiency in English in 2009, she was referring to the fact that she had passed her two written case histories. She confirmed that one of the reasons why she wanted to go to the Northside Clinic was to work on her presentation skills, which is what she said Northside was known for.
78 Dr Maiocchi said that prior to joining Northside Clinic, in her previous rotations, she had attended mock presentations organised for the registrars which were supervised by a professor. On some of those occasions she was the presenter. She said that she practised making presentations in telephone conversations with her consultant while she was on call. Dr Maiocchi described her contact with consultants while she was working in the public system and said that generally such consultants were part-time and came in two and a half days a week. She said that she did not find the Northside Clinic to be different to the public health system. She added that even though the consultants were not present at Northside as often as was the case in the public system, she found that the telephone and emails were good ways to communicate. Ultimately, however, Dr Maiocchi accepted that, because the consultants at Northside often saw their patients early or late in the day, she did not see them as often as she saw consultants in the public system. I accept that evidence.
79 Although Dr Maiocchi said that she could not recollect Dr Wilson telling her at a supervision that she had misunderstood an exam question and had therefore done a poor answer, she recalled him suggesting how she might approach an exam question in a different fashion. She denied, however, saying to Dr Wilson that she knew what she was doing and did not require any further help from him.
80 After acknowledging that her study leave in February-March 2010 was an exhausting time, Dr Maiocchi confirmed that, on return to the Clinic on 8 March 2010, she participated in a supervision with Dr Wilson the following day. She reaffirmed her claim that it was in this supervision that Dr Wilson threatened her professional career and training. She explained that this was because he said then that she was "the most terrible registrar" and that he was organising or thinking about a remediation plan. When she was closely cross-examined on the latter point, Dr Maiocchi said that she had not kept a note of that supervision nor had she ever noted that Dr Wilson told her on 9 March 2010 that he was going to put her up for a remediation plan. Dr Maiocchi denied that she was confused between events which occurred on 9 and 23 March 2010, when she was given her mid-term assessment which contained the reference to the remediation plan. Dr Maiocchi also said she had no recollection of Dr Wilson telling her in the 9 March 2010 supervision that he was trying to help her improve her performance.
81 Dr Maiocchi recalled that the first time she made a note of Dr Wilson's statement that she was the worst registrar that they had ever had at the Clinic was in her letter of complaint dated 8 August 2010 to the College, in which she complained of harassment. Dr Maiocchi rejected the suggestion that her memory of what Dr Wilson was saying was faulty. She said that it "was a great blow to me" and she could not forget it. The following exchange then occurred:
And is it possible that the - as you haven't made a - note or a written record of the conversation, that your memory may be faulty?---It may be faulty in the actual words, but it's not faulty in how I felt because that afternoon I left Northside Clinic and I was not - I - I had lunch before I left, and I drive my car and I had an accident. I had all the medical tests to see what happen (sic) and I have not been charged by the police because the people from ambulance, they describe to the police since that day, she did nothing.
82 This is the first of many examples of Dr Maiocchi's tendency to reconstruct actual events based on her subjective emotional state, rather than give an objective and dispassionate recollection of the relevant event to the best of her recollection. Dr Maiocchi's evidence was frequently given in a manner which reflected her subjective perception of what occurred and its effect upon her emotions and without particular attention to the details of her observations of what actually occurred.
83 Dr Maiocchi confirmed that her car accident occurred on 9 March 2010, and that she went to work on 10 March 2010 and was told to see a GP and get a medical certificate. She returned to work on 15 March 2010. Dr Maiocchi said that when she returned to work, she "was very stressed" (as she had been since 9 March 2010) and that was because the environment was no longer a place in which she felt comfortable or could succeed - she described it as "a toxic environment". Dr Maiocchi confirmed, however, that she did not tell anyone at the time that she thought she was working in a toxic environment.
84 Dr Maiocchi was cross-examined on the pathology results for Dr Harper's patient, SM. Dr Maiocchi accepted that she had made an error in reviewing the pathology results and confused the haemoglobin and sodium readings. She said this was because they appeared on the form in different places to what she had come to expect. Dr Maiocchi said that she had told Dr Harper about the error and that the readings were the opposite to what she first thought, namely SM's sodium was normal but his haemoglobin was abnormal. Dr Maiocchi later clarified that her evidence was that she told Dr Harper on the phone that she had found a sodium level of 122 mmol/L, that they subsequently discussed it and found that Dr Maiocchi had made an error. The following day Dr Maiocchi wrote in SM's medical records that the patient was well and a sodium level of 139 mmol/L was recorded.
85 In relation to the supervision on 16 March 2010 with Dr Wilson, after Dr Maiocchi's return to work following her car accident, Dr Maiocchi said that she was "reasonably annoyed" with Dr Wilson's questions about her health. She acknowledged that she did not make any note of her claim that Dr Wilson said that he was going to report her to the Medical Board if she had any disability. She ultimately accepted that Dr Wilson never did in fact report her to the Medical Board. There was then the following exchange (emphasis added):
Do you accept that your memory of that event may well be flawed and that Dr Wilson, in fact, didn't say he was going to report you to the medical board?---Still I remember the situation because I was really - and I think justified - feeling that I was threatened. I felt intimidated for the fact that he was telling me that he was looking for a reason to send me to the medical board---It just ---?--- or that was my interpretation.
86 This provides a further example of Dr Maiocchi's tendency to reconstruct events to accord with her personal emotional state and perceptions, rather than give an objective and dispassionate factual account.
87 Dr Maiocchi denied that she ever told Dr Wilson that she could make a list of his mistakes because he also made mistakes. She denied saying to Dr Wilson that the only consultant on the ward whom she thought was any good was Dr Meagher. She accepted, however, that she probably said to Dr Wilson that although she thought he had been a good consultant at the start of her rotation, she no longer thought that.
88 Dr Maiocchi was then cross-examined about patient KS. When asked to explain the difference between anorexia nervosa and anorexia in relation to KS, Dr Maiocchi said (errors in original):
She had been, the days before - I wasn't in Northside Clinic so I just knew through the medical records - that she had deteriorated her depression and because of her deterioration of her depression, she was not wanting to eat much and that symptom is called anorexia. But doesn't mean that that patient is anorexic. And she was just needed to be looked after to check that she was drinking enough, that she was eating enough.
89 It appeared that Dr Maiocchi agreed in cross-examination that KS was anorexic, but then she later seemed to retreat from this position.
90 Dr Maiocchi denied Dr Wilson's recollection that KS had a look of "abject horror" after Dr Maiocchi described her as "chubby". She confirmed, however, that she was stressed and upset during the interview with KS, which followed immediately after the supervision session with Dr Wilson. Dr Maiocchi explained the incident with KS as follows (errors in original):
Shortly after you described KS as "chubby", do you recall that Dr Wilson terminated the interview?---How can I say that I did not describe her as chubby? First of all, because I was not referring - as I said before, that I was not referring to the physical. I said it many, many times. I was so stressed that - I was composed and I talk properly and everything, but I had a lapse. I wanted to describe - I will say it another time, if you allow me. Someone when is depressed, have downcasted face. And she was - when I saw her the first time that impacted me to see in a young person that expression. But impacted me when I was back that she was smiling. The first time she didn't smile to me in any point. She was really depressed. When I came back, even when she had been obviously very bad, the - at the moment I saw her, she was smiley, she was relaxed, she looked good to me. But I was not referring to weight in any point of - or manner, and it was not that I told her "chubby". In - in - in - in the list of wrapping up the assessment, I'm telling her all the things that I thought she had been achieving in my absence, and how I saw her getting better waiting for going down. It was just - I can't understand how, for five years, I have been repeating this and I have been asked for this. So for five years I said exactly the same.
HIS HONOUR: Your evidence - and you correct me if I'm wrong, but your evidence is that you accept that you used the word "chubby"?---I used the word, but not in the - with the intention that is presented, and the reaction of the patient - I wouldn't miss it, because if you allow me, I am - I have - we all have some sort of talent. I am a very well - very good observer, that is why I am good - or I like to do psychodynamic therapy. I am a good observer, and I wouldn't miss her face.
91 Dr Maiocchi then said that, in her discussion with Dr Wilson after the interview with KS, she recalled him using the word "flabbergasted" because it was a new word for her but that otherwise she could not reproduce their conversation word for word. She said, however, that she recalled being "treated as a different person because I was culturally different, and I could not understand a patient because I was culturally different". Dr Maiocchi said that Dr Wilson was "telling me that culturally I was different and that that was his understanding of why I was using the word 'chubby'".
92 When it was put to Dr Maiocchi that Dr Wilson did not accuse her of being different, but said that perhaps it was a cultural difficulty to call someone chubby, Dr Maiocchi said that she did not remember that but when asked whether it was possible that this was what Dr Wilson precisely said, she answered "I don't think so. Or maybe, yes, I don't know". She said that she could not recall one way or the other.
93 Dr Maiocchi confirmed that, in her written statement to the NSLHD in March 2011, she had stated that the word "chubby" was not a disparaging word.
94 At this point in her cross-examination, Dr Maiocchi disputed that she had said earlier in her cross-examination that KS was anorexic. As noted above, she appeared to back away from her earlier evidence on this issue and asserted that KS was anorexic, however, Dr Maiocchi was at pains to say that this required closer analysis in order to understand the implications of her saying to KS that she was "chubby". There was the following exchange (errors in original):
Dr Maiocchi, I think everyone can accept that there are shades of grey, but you agree, don't you, that it is accurate to describe KS in March 2010 as anorexic, don't you?--- I agree with you because it's the - it's the only way I can answer your question, but if you remove the anorexia word from the context, so the anorexia word grows in - in importance and become an issue, that is not the case. One thing, and everyone would agree, that is what ..... how it have been said all the time, Dr Maiocchi said, chubby, to an anorexic patient, what is the image that comes in that, a patient that is about to die, so thin that you wouldn't say chubby to that person, and I would be really very - in very bad shape if I would do that, but that was not the case. It was a girl with a normal weight that just had had a depression deepen - a depression that had become worse for a - for a few days or for a week, that I wasn't in there, and in during that week she manifest that she was not hungry and she stop eating as a regular as she used - used to do, and there was a concern that maybe she was not drinking enough either.
95 Dr Maiocchi said that she had no recollection of Dr Wilson asking her to transcribe KS's blood tests onto the electroconvulsive therapy (ECT) paperwork.
96 Dr Maiocchi was asked whether she thought that by providing her with the duty statement on 23 March 2010, Dr Wilson was singling her out because she was a migrant. She responded: "At the time I was just wondering why, but I had no elements to think about that".
97 Dr Maiocchi said she viewed the duty statement as an act of intimidation and another step taken by Dr Wilson to put her into a remediation. She denied that the document would help her do her job. Although Dr Maiocchi accepted that the purpose of a mid-term report was to help a trainee focus on areas of weakness before the end-of-term evaluation, she said she did not see Dr Wilson's mid-term evaluation in that way because she could not find that it helped her and it was "just unacceptable" and "so negative".
98 It was then put to Dr Maiocchi that even if she failed the basic training term at Northside Clinic she had accumulated 45 months of basic training in any event and the requirement to progress to advanced training was only 36 months. Dr Maiocchi responded by saying that if she failed the term at Northside Clinic "maybe is (sic) not just the right time to ask to be considered for the advanced training with the term failed". She agreed, however, that even if she had failed the term at Northside, she would not have needed to repeat that term at Northside, but would have had to do another term elsewhere because she said she needed to keep working and training in order to reach her Fellowship.
99 On numerous occasions, the Court reminded Dr Maiocchi of the need to provide responsive answers to questions. As noted above she displayed a tendency at times to describe events to reflect her subjective impressions or feelings at the time, rather than give an objective and non-judgmental account of the facts. Dr Maiocchi reconstructed some important events to advance her case, as is evident from the extracts set out above and below.
100 Dr Maiocchi was cross-examined in relation to her complaints dated 8 August 2010 and 2 November 2010 to the College, and 4 January 2011 to the Commission. She confirmed that during the interview she had with the NSLHD on 31 March 2011 she made no claim that Dr Wilson had told her on 9 March 2010 that she was going to have a remediation. When Dr Maiocchi was pressed that Dr Wilson did not in fact say that to her on 9 March, she responded by saying that her "truthful answer of what I can emotionally recall is that something on the lines that I was - my career was on threaten (sic) was said" and that this "can be translated into, you are going to be in a remedial". This is a strong example of the way in which Dr Maiocchi's recollection of some key events was highly subjective and driven by her personal emotions.
101 Dr Maiocchi was cross-examined in relation to the medication chart for patient LB, who was administered Seroquel immediate-release rather than the slow-release version. Dr Maiocchi accepted that she had mischarted the product. However, she disputed Dr Wilson's description of the patient as being presyncopal.
102 Dr Maiocchi was then cross-examined about KG and the entries she had made in the mental state examination section of this patient's medical records. She said she had no recollection of Dr Wilson telling her the day after she admitted KG that he was surprised that she had found KG to be relatively stable on admission because he had found her to be quite different the following day and did not think that her condition would have changed so greatly overnight. Dr Maiocchi was cross-examined about the interview she gave to the NSLHD in March 2011, where she stated that she should have included more in the mental state examination part of the record in respect of KG.
103 Dr Maiocchi confirmed that from 13 April until 10 May 2010 she continued to have weekly supervision sessions with Dr Wilson. She accepted that she had no complaints about Dr Wilson during that period. She acknowledged that Dr Wilson sent her a text over the weekend of 8-9 May 2010 inquiring about her exam results and also sent her a congratulatory text. She said that she was surprised "because weekends are very precious when you worked so hard the whole - the whole week".
104 Dr Maiocchi acknowledged that on 10 May 2010 Dr Wilson sent her an email with some feedback and that she was relieved that it was positive feedback. The email also made reference to Dr Harper having said that it was difficult to give Dr Maiocchi feedback, a comment which was directed to a problem in relation to Dr Harper's patient, LG, for whom Dr Maiocchi had prescribed the drug Bactrim. Dr Harper made a note in the medical records that Dr Maiocchi should not order medication without prescribing the dose. Dr Maiocchi then gave some rather confusing evidence about the dosage for Bactrim.
105 Dr Maiocchi was then cross-examined about BM. She rejected the proposition that Dr Wilson's notes of his examination of BM on the morning of 7 May 2010 indicated that BM had delirium. She said that the matters listed by Dr Wilson were inconsistent with that diagnosis because delirium was graver than the matters listed by Dr Wilson. She added that if Dr Wilson considered that BM was delirious, he should have had the patient transferred to a clinical setting.
106 Dr Maiocchi was adamant that Dr Wilson had written in the communication book that nothing else needed to be done in respect of BM. She also denied that Dr Wilson's reason for requesting an MRI was because he was concerned that BM had delirium.
107 Dr Maiocchi described the exchange with Dr Wilson when she saw him in the corridor outside BM's room. She confirmed that he told her that he would talk to BM. She also acknowledged that she did not make an entry in BM's medical notes to the effect that she had told Dr Wilson about the sodium result of 120 mmol/L, nor did she record anything in the notes about telling BM about the fluid restriction. She explained that she did not need to make such a note because she would tell the nurses verbally about the diuretic medication and to restrict BM's fluids. Dr Maiocchi also accepted that she did not note the amount of the fluid restriction in BM's medical notes.
108 Dr Maiocchi sought to explain why she had identified the amount of fluid restriction in respect of SM and not BM by reference to the fact that she had just started work at the Clinic when she saw SM. I found her explanation of the difference unpersuasive.
109 When Dr Maiocchi was asked in cross-examination whether she recalled saying to Dr Wilson at the supervision on 11 May 2010 that sodium of 120 mmol/L was "just the limit for a consult", she said she had no such recollection. This is inconsistent with her oral evidence in chief on this matter in which she explicitly denied saying those words.
110 Dr Maiocchi was cross-examined about her complaint dated 3 January 2011 to the Commission. She complained that Dr Wilson had told her that she said "yes, yes, yes" and she explained this aspect of her complaint to the Commission. When it was put to Dr Maiocchi that Dr Wilson had never said anything to her about her race, Dr Maiocchi said "Yes, he did". Significantly, when Dr Maiocchi was asked whether she could refer to any statement by Dr Wilson at any time in which he made any reference to her race or migrant status other than his statement that her description of KS as "chubby" might be due to a cultural difference, Dr Maiocchi said "no". She then quickly added that she was concerned that the reason why Dr Wilson considered that she said "chubby" was racist.
111 It is revealing that Dr Maiocchi pointed to no other statement of Dr Wilson as grounding her complaint of racial discrimination other than his proposition that her use of the word "chubby" might indicate a cultural difference. Dr Maiocchi's evidence on this topic during her cross-examination provides another example of her tendency to allow her subjective and emotional perceptions to dominate her recollection of events.
112 At the end of her cross-examination by Ms Horvath and, in effect, in re-examination, Dr Maiocchi expanded upon some of her earlier answers. In respect of patient LB and the allegation that Dr Maiocchi did not know the difference between immediate and slow-release Seroquel, Dr Maiocchi said that while she accepted that she made an error, it was wrong to say that she did not know the difference. She also added that even though she made an error there was no incident because the patient's condition did not change.
113 Dr Maiocchi then expanded on her evidence in respect of the drug Bactrim and Dr Harper's claim that Dr Maiocchi had given the patient LG a double dose. Dr Maiocchi's evidence on this topic was still rather confusing, as is reflected in the following extract (errors in original):
My point is that also is not ideal to put Bactrim only. The fact that I didn't put DS, the DS is not double the dose and I never put it on the other way but anyway, by putting Bactrim, the only Bactrim that the pharmacy could provide to the unit was Bactrim DS.
114 Dr Maiocchi was then cross-examined by Mr McLeod, who appeared for Dr Jurd and the State of New South Wales - NSLHD.
115 Dr Maiocchi confirmed that she sat the written exam for a third time in March 2010 and she obtained her results in early May 2010. She confirmed that Dr Jurd sent her a text message on about 7 May 2010 enquiring about her exam results. She said that it was a "terrible surprise" to receive his text because it was uncharacteristic for him to contact her in this way and at this time, given their relationship since 2007, and "uncharacteristic for the situation I was having in Northside Clinic".
116 Dr Maiocchi confirmed that Dr Lyndon, the unit director at the Clinic, was familiar with her work as a psychiatrist trainee. She confirmed that she respected Dr Lyndon in the first half of 2010.
117 Dr Maiocchi was then cross-examined at some length regarding the meeting she had with Dr Jurd on 13 April 2010 concerning the remediation plan. She confirmed that Dr Jurd said that he had heard many concerns from Dr Wilson about her progress and that he had considered the mid-rotation report dated 23 March 2010. She also confirmed that Dr Jurd told her at the meeting that he had concerns about her use of the word "chubby" to KS and that he told her that "you don't say 'fatso'" to a patient. Dr Maiocchi stated that she was not happy that she had used that word, but that her use of the word did not "mean anything related with my culture or that in my culture we consider and go through with movements of how good is to be chubby or whatever else that have been said (sic)". She said that she told Dr Jurd she used the word "chubby" with her own children when they were little and that it was not insulting.
118 On the issue of Dr Jurd's use of the term "pugnacious", Dr Maiocchi said:
We got caught into the "fatso" situation. I was very upset with the "fatso" situation, and then he began with "pugnacious", so I said, "I don't know that word", and he said, "What is this in your language?". I said, "(foreign language spoken)". He said, "Well, there you are. The people from your country are pugnacious, (foreign language spoken)". That was what I got. That is why later on I got someone to go with me, because all that was too much for me.
119 That account of their exchange broadly accords with Dr Jurd's own evidence (which is set out further below).
120 However, when it was put to Dr Maiocchi that Dr Jurd had indicated that he found it difficult giving her feedback because he thought she was pugnacious, Dr Maiocchi disagreed. She also rejected the proposition that she had held up her fist when he explained what he meant by pugnacious.
121 Dr Maiocchi initially agreed with the proposition that Dr Jurd had told her one way to describe KS would have been to say that she was looking healthier, but she then added that she did not think that he had in fact said that. I found Dr Maiocchi's evidence on this matter to be rather confused.
122 The following exchange then occurred:
…And all I want you to do is focus on this question. I want to be very clear on it, at no point in that meeting did Dr Jurd refer to people of South American ethnicity generally as being pugnacious people, did he?--- Phrase it like that, no.
123 This is a further example of Dr Maiocchi modifying her evidence in order to differentiate between her subjective and emotional perception of events and their objective reality.
124 Dr Maiocchi rejected various other propositions which were put to her regarding what was discussed at the meeting on 13 April 2010. She stated that they did not discuss the contents of the remediation plan but she was asked to sign one copy and retain another. She said that she had no other option but to sign the plan even though she did not accept it. She rejected the proposition that she told Dr Jurd that she did not need the remediation plan. She also rejected that Dr Jurd indicated to her that he was trying to help her progress and complete her rotation. She added that she wanted to finish the term and she still had hope that in some ways "my things were going to work out". Dr Maiocchi then added that when she signed the remediation plan using a lengthier version of her normal signature it was intended as a gesture of rebellion on her part because she thought the plan was being imposed on her.
125 Dr Maiocchi accepted that Dr Jurd had recommended to her at some time, not at the 13 April 2010 meeting, that she read lowbrow magazines and that she told him that she was too busy at the time because she was studying for her exams. But she told him she would listen to cassettes while she was driving. She then added that she told Dr Jurd that she was listening at the time to Ulysses by James Joyce.
126 When asked whether she believed that Dr Jurd was trying to help her when he recommended that she be conscious of and moderate her accent, Dr Maiocchi said that it took time to moderate her accent and she was studying for her next exam. She then added that "it was a bad time to remember to help me". Dr Maiocchi said that she considered that the requirements for the remediation plan were:
over what it was needed for my level of training at the time where I was about to go through the next stage was only hindering my progress (sic).
127 Dr Maiocchi stated that she retained Dr Wajnryb in order to comply with the remediation plan and that she wanted Dr Wajnryb to help improve her spoken English. Dr Maiocchi was adamant that Dr Wajnryb accompanied her to the meeting on 11 May 2010, not as her English coach, but as a support person.
128 Dr Maiocchi was cross-examined on the contents of the clinical examination which she expected to sit. She confirmed that it had an observed clinical interview component which would involve her interviewing a real patient for about 50 minutes while being observed by two examiners in the room and that, upon completion, she would meet with the examiners and present the case to them. Dr Maiocchi confirmed that it was quite a demanding exam. She acknowledged that the second component of the clinical exam at that time was the observed structural clinical examination, which involved the trainee going to ten different stations where there was an actor playing the role of a patient and she would be scored on the quality of the approach she took to the patient. She confirmed that it was exclusively an oral exam which was demanding, and that she still had to pass both those components before she finished her basic training.
129 Dr Maiocchi was cross-examined in respect of the details of the meeting on 11 May 2010 at Dr Jurd's office at Macquarie Hospital when she was told that her clinical privileges at the Clinic were withdrawn. She denied that Dr Wajnryb indicated at that meeting that part of the reason for her being there was to identify how she could assist Dr Maiocchi with communication skills and aid her progress. Dr Maiocchi said that the only reason why she was there was to be her support person. Dr Maiocchi accepted, however, that her English skills and particularly her oral communications skills were a significant topic at the 11 May 2010 meeting, notwithstanding that earlier in her evidence she had denied that her English was discussed at the meeting. She further explained that Dr Jurd had raised points about her English and that Dr Wajnryb "was responsive to his comments, but it was not an evaluation or direct evaluation or assessment of my English". This is an example of the many occasions on which Dr Maiocchi misunderstood a question.
130 Dr Maiocchi was adamant that the use of the word "chubby" was never raised at the meeting on 11 May 2010 but then shortly thereafter she corrected that evidence and said that it was discussed but that was in relation to Dr Jurd correcting himself about the use of the word "fatso".
131 There then followed the following exchange:
Do you agree that at the 11 May 2010 meeting, you acknowledged that in the context of your cultural background, you question in a different way. Your mode of questioning is different to some other people?---Yes. I said so, and also I said that through the training I had changed and at the moment I was having the right questioning. I was trying to demonstrate to Dr Jurd how I was improving from one point to another, and that he shouldn't worry about what he was saying that he was worried about. I have been always too good trying to get a good outcome, trying to comply, try to - trying to go through.
132 Dr Maiocchi firmly rejected the proposition that, as at the meeting on 11 May 2010, she accepted that, for the purpose of communication in psychiatry, her oral communication skills needed improvement. She said that she always disagreed with the remediation plan. She confirmed however that Dr Wajnryb had been engaged by her to help her work on her oral communication skills and that was because she had the remediation plan and because "I cannot deny that I always can improve". This answer is inconsistent with Dr Maiocchi's earlier absolute rejection of this proposition. It is an example of a propensity by Dr Maiocchi to give inconsistent answers on some important matters. Dr Maiocchi confirmed that she knew as at 11 May 2010 that Dr Wajnryb could help her improve her oral communication skills because that was her job.
133 Dr Maiocchi was cross-examined on matters surrounding the risk assessment prepared by Dr Jurd on 19 May 2010. Dr Maiocchi said that she received a phone call from Dr Jurd and she told him how distressed she was and that he may have mentioned the risk assessment in that conversation.
134 Dr Maiocchi was cross-examined on aspects of her complaints to the Commission. Her attention was drawn to her claim that she had been offered no justification for what she claimed to be discrimination as manifested in various written documents. She responded by saying that it was an accurate claim in relation to the mid-term evaluation report and the remediation plan. She reluctantly acknowledged that Dr Jurd had given her some reasons for the remediation plan but she said that they were "based in very unfair opinions".
135 It was then put to Dr Maiocchi that Dr Jurd never told her that he believed that South Americans usually avoid hard work, to which Dr Maiocchi responded:
He didn't say it, but stereotyping me in the remedial in that way. Seems like I was not working, seems that I was calling names, seems that I was threatening.
136 When it was squarely put to Dr Maiocchi that she was talking about her impression of Dr Jurd, she said that she was talking about how the remediation represented her as a stereotype. This is a further example of Dr Maiocchi's evidence being influenced by her subjective interpretation and personal sensitivities, rather than providing an objective account of what actually happened.
137 When it was then put to Dr Maiocchi that Dr Jurd never suggested that South Americans are too proud to withstand feedback, she responded by saying (errors in original):
Not in that words, but if you describe a person that you consider… pugnacious, and their pugnacious comes from that background and you describe that person - portrayed person like, "Lacy needs to be supervised for the… calling names," that was not me. And I don't know - in five years, I could not get out of me. That is stereotype that portrayed me as a person that I am not.
138 Dr Maiocchi's attention was drawn to an email dated 12 May 2010 from Dr Wajrnyb to her in which Dr Wajrnyb wrote:
However, my professional opinion is that at root this is mainly a cultural-linguistic problem that should have been dealt with much earlier; and perhaps would have been if you'd been given steady and considerate and appropriate feedback.
139 Finally, Dr Maiocchi agreed in cross-examination that in November 2011 she declined to attend a professional performance assessment in respect of her professional clinical performance notwithstanding that she was given warnings about the serious consequences if she failed to attend. She confirmed that the assessment was being conducted by the Medical Council of NSW. She explained that she decided not to attend the performance assessment and that she wrote a letter to the Medical Council of NSW explaining her reasons. It was put to Dr Maiocchi that the performance assessment constituted a chance for her to satisfy her assessors that she was an appropriate person to resume her training as a psychiatrist. Dr Maiocchi did not provide a direct response to that question but indicated that she was frustrated with all the events that had occurred and that she had asked for time to respond to the complaints against her.
140 As is apparent from many of the extracts from the transcript and my comments above I did not find Dr Maiocchi to be a reliable witness. I do not doubt her honesty and the sincerity of her subjective beliefs but I consider that her oral evidence needs to be approached with considerable caution because:
(a) her recollection of many important matters was coloured by her emotional interpretation of what had occurred;
(b) when pressed Dr Maiocchi frequently had to modify her evidence in chief;
(c) Dr Maiocchi's evidence frequently involved her reconstruction of events so as to advance her case; and
(d) Dr Maiocchi had difficulty grasping the distinction between making a submission and giving objective and responsive evidence.
141 In the light of these problems with Dr Maiocchi's evidence, I am unwilling to accept her version of disputed relevant events unless her evidence is supported by independent documentary or testimonial evidence. Moreover, I can indicate that, where Dr Maiocchi's evidence of particular relevant events is different from that of Dr Wilson or Dr Jurd I have no hesitation in preferring their evidence to hers.