T12787
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TASMANIAN INDUSTRIAL COMMISSION Industrial Relations Act 1984 Richard Charles Palmer and Minister Administering the State Service Act 2000
Industrial dispute - termination of employment - misappropriation of drug of dependence for self-use - drug dependency issues - decision to terminate found to be within the range of sanctions reasonably available to the employer - decision not disturbed - other considerations including peer support - recommendation REASONS FOR DECISION [1] On 7 September 2006, Richard Palmer (the applicant) applied to the President, pursuant to Section 29(1A) of the Industrial Relations Act 1984, for a hearing before a Commissioner in respect of an industrial dispute with the Minister Administering the State Service Act 2000 arising out of the termination of his employment from the Department of Health and Human Services. [2] This matter was listed for a hearing (conciliation conference) on 18 September 2006, and for hearing on 16 and 17 October 2006. Ms C Saint, with Ms M Davis, of the Australian Nursing Federation Tasmanian Branch, appeared for Mr Palmer. Ms J Cox, with Mr G Munting and Ms T Banman, appeared for the Minister. [3] Mr Palmer has been a registered nurse since 1990. Since 1995 he has been employed in the Neurosurgical (NSU) ward at the Royal Hobart Hospital (RHH). In 2001 Mr Palmer was appointed as a Level 2 Nurse in the NSU ward, a position he held up until the time of his termination. [4] On or about 22 June 2006 Mr Palmer was suspended with pay pending an investigation. The factual basis for the investigation is not in dispute. For a period of time Mr Palmer had been taking Panadeine Forte from the locked S4 cupboard, falsifying the S4 register, and self-administering the tablets. The Minister does not necessarily accept the latter point, although no evidence, or even assertion as to an alternative use, was put forward. [5] Mr Palmer admitted the misappropriation of the tablets and cooperated with the investigation. [6] On 5 September 2006 Dr Forrest, Secretary of DHHS, wrote to Mr Palmer advising as follows:1
[7] Dr Forrest went on to say:
[8] The findings of the Secretary are not contested. The ANF made it clear that it did not condone Mr Palmer's behaviour nor was it submitting that the Minister should condone it. Nonetheless the ANF submitted that Mr Palmer suffered from a drug dependency, which drove the behaviour to misappropriate the tablets. This dependency was treatable. By terminating Mr Palmer's employment the agency has neglected the health issue, which should have been immediately considered, particularly given the fact that the employer was in the business of providing health care services. [9] The ANF submitted that Mr Palmer's addiction amounted to a disability. To terminate an individual as a consequence of a disability was contrary to s.30(4) of the Act, and hence did not constitute a valid reason for termination. [10] The ANF contended that the termination was unfair because other workers with an addiction continue to work and are supported in the workplace, and further, Mr Palmer has been given no opportunity to rehabilitate. [11] The termination was unnecessarily harsh and disproportionate. There was a range of possible sanctions available to the agency which fell short of termination, the ANF submitted. [12] The Minister contended that Mr Palmer was responsible for his own actions. His behaviour amounted to a serious breach of trust over an extended period of time. There was also a possible breach of the Poisons Act 1971. The decision to terminate was reasonably open to the Secretary, and should not be overturned. Evidence [13] Sworn evidence was taken from the following witnesses: For the applicant: · Dr Pauline Bernadette Waites: neurosurgeon and pain management specialist at the RHH for the past four years. · Richard Charles Palmer: the applicant. · Genevieve Anne Duncan: Level 1 Registered Nurse, currently employed two days a week in the NSU ward. · Dr David Jackson: Fellow of the Australian Chapter of Addiction Medicine, worked in the alcohol and drug field for the past 15 years. · Alexis Bull: Level 2 Clinical Nurse, employed in the NSU ward for approximately eight years. · John Chapman: After hours Nurse management for medicine and surgery, 27 years' experience in nurse management. · Katherine Anne Tighe: Level 2 Registered Nurse employed on NSU ward, also an ANF work site representative. For the Minister: · Mary Christina Sharp: Deputy Chief Pharmacist with Pharmaceutical Services. · Garry John Munting: Nurse Manager for Clinical Services Surgery. Registered Nurse for 35 years. Factual Background [14] The facts relevant to this matter are largely uncontested. The following is a summary of the factual background. [15] Panadeine Forte is a trade name of Codeine, and is defined as a narcotic analgesics Schedule 4 pharmaceutical under the Poisons Act 1971.In the NSU ward Panadeine Forte tablets are kept in a locked S4 cupboard, which is accessible by registered nurses with the "red keys". [16] The procedure for obtaining S4 medications is as follows. The nurse would firstly check the drug chart to establish that the medication had been prescribed for that patient. The nurse would obtain the medication from the S4 cupboard and complete the details on the S4 register. This included a physical count of the remaining tablets. The medication is then given to the patient and noted on the patient's medical chart. [17] In June 2006 senior nursing staff discovered a discrepancy with the S4 register. Mr Palmer had repeatedly signed for Panadeine Forte tablets that had not been administered to the named patients. [18] Between 18 and 20 June 2006 Mr Palmer removed 38 Panadeine Forte tablets from the S4 cupboard, falsely stating on the register that the medications were for provision to patients. [19] Mr Palmer freely admitted to this misappropriation, stating that the tablets were removed for his own use. Further he acknowledged that this practice had been undertaken for a number of years, at least since 2003 and perhaps earlier. The evidence suggests that the practice may have been in place, on a more limited scale, as early as 2000. [20] According to the Department, Mr Palmer had signed for 5910 Panadeine Forte tablets since January 2004. Whilst some of these would have been for legitimate patient use, many, perhaps most, were not. It is not possible to determine the precise number of tablets Mr Palmer misappropriated for his own use and nor is it particularly important. The number would certainly be substantial and, on the available evidence, be measured in the thousands. [21] Mr Palmer said:2
[22] Mr Palmer said that he initially started taking Panadeine Forte (one or two tablets) to relieve headaches and assist with sleep. Initially he sourced the tablets from his wife's prescription. His wife, also a RN at the RHH, was assaulted in the workplace in 2001. She has not worked since, and until recently, had been in receipt of workers' compensation payments. [23] Mr Palmer said:3
[24] Towards the end of 2003 Mr Palmer's father passed away as a result of a brain stem lesion. [25] This combination of factors, coupled with working full-time with attendant work/family balance tensions, created significant personal stressors in his life, Mr Palmer said. [26] In late 2003 his wife was no longer prescribed Panadeine Forte, and it was from that time that Mr Palmer started obtaining medication from work. (Note: From the evidence this practice commenced earlier than 2003. Questioned, Mr Palmer said he was unsure when the practice actually started.) [27] Mr Palmer said that as time progressed I-2 tablets was not having the desired effect. In the last 1-2 years, "Due to the compounding stressors I have gradually increased my dose of Panadeine Forte up to 18 tablets per day".4 These tablets were taken in the evening after a shift at work. He did not take tablets before or during work, on days off or on annual leave. [28] Mr Palmer maintained that patient care was never compromised by his actions, although under cross-examination he acknowledged that it was possible for a patient to have been denied medication.5 There was however no evidence presented of any instance whereby a patient had been denied medication as a consequence of Mr Palmer's actions. [29] In 2003 Mr Palmer consulted Newport and Wildman (RHH Employment Assistance Counsellors) concerning his wife. He told them of his own issue with Panadeine Forte and was offered a follow up appointment. Mr Palmer did not take advantage of this appointment. In explanation Mr Palmer said:6
[30] During his period of suspension, Mr Palmer attended six appointments with Newport and Wildman. He has consulted his GP, attended three appointments with a psychologist and attended the Drug and Alcohol Clinic at the RHH. This treatment program is ongoing. Correspondence from Julian McGarry, Clinical Psychologist, dated 13 October 2006, reads:7
[31] Mr Palmer said he did not believe the Panadeine Forte had affected his clinical performance. This was unreservedly confirmed by all witnesses in a position to give evidence on this aspect. Panadeine Forte and Related Dependency Issues [32] Expert evidence on the nature of Panadeine Forte was provided by Dr Jackson, Dr Waites and Ms Sharp. The following is a summary of their evidence. [33] Panadeine Forte is the brand name of a combination of 500 milligrams of paracetamol and 30 milligrams of codeine phosphate. It is an analgesic, used for pain relief. It is available by prescription only and pharmacists are required to attach a warning label stating that a dose of no more than eight tablets a day be exceeded. [34] Paracetamol is not addictive. However excessive doses may cause liver damage. Dr Jackson said that more than 10 grams of paracetamol (20 tablets) could cause liver damage, depending on an individual's susceptibility. Ms Sharp said that liver damage was likely after a much lesser quantity was ingested. She said that depending on an individual's tolerance, around 10 to 12 tablets could be a fatal dose. Dr Waites said that the recognised lethal dose in the literature was 20 tablets. [35] Codeine is the addictive component of Panadeine Forte. Prolonged use is likely to require an increased dosage to achieve the same effect. It is a common scenario that persons addicted to codeine (or other drugs of dependency) believe they can stop at will without outside assistance. Commenting on the nature of addiction, Dr Jackson said:8
[36] Dr Waites said:9
[37] Commenting on Mr Palmer's pattern of consumption, and in particular prolonged breaks without ingestion, Dr Jackson said:10
[38] Dr Waites said that addiction does not mean an individual takes the drug every day. However she would be surprised if an individual went three or four weeks without taking any. [39] Ms Sharp described Mr Palmer's usage as an "unusual addictive pattern". [40] Ms Sharp said the half-life of codeine was two to four hours. In response to a question from the Commission, Ms Sharp agreed that 12 hours after ingestion, an individual would not show any signs of impairment. [41] Dr Jackson said:11
[42] Dr Jackson said that drug addiction was a disease and that the scientific literature shows that health care professionals are particularly prone to addictive disorders. He went on to say:12
[43] Dr Jackson said that health professionals have an inherent difficulty in recognising the problem and seeking assistance. He said:13
[44] Dr Jackson said that a health professional with a drug dependency would be very likely to take drugs from the workplace because of ease of access and lack of alternative sources of supply. He said:14
[45] And later:15
[46] In relation to the Code of Conduct, Dr Jackson said:16
[47] The Nursing Board of Tasmania has a Policy Statement for Substance Abuse Rehabilitation Programs for Nurses. Under the heading Philosophy, the statement reads:17
Support from Colleagues [48] A considerable amount of support from colleagues, both medical and nursing staff, was presented on Mr Palmer's behalf. [49] On September 15 2006 medical staff from the NSU wrote to the Department Secretary in the following terms:18
[50] On 8 September 2006 the entire NSU nursing staff (Level 2 and above) wrote to the Secretary stating:19
[51] On 13 October 2006 Mr Hunn wrote to the Commission as follows:20
[52] Dr Waites said that the medical staff, whilst not condoning the behaviour, "never lost trust in his clinical abilities, we have had the breach of trust in regard to his behaviour and relationship to this drug.21 Dr Waites agreed that with appropriate support and treatment, Mr Palmer could be returned as a fully functional member of the neurosurgical team. [53] All nursing staff called as witnesses for Mr Palmer expressed their confidence in Mr Palmer's clinical capacity and their support for his return to the workplace. [54] Mr Bull said:22
[55] Mr Chapman's evidence was:23
[56] Ms Tighe said:24
[57] On the other hand Mr Munting expressed the view that taking medications from the ward was one of the most "inappropriate professional things" a nurse can do. In addition the time taken in falsifying the S4 register amounted to "hundreds of hours of nursing care ... that he's stolen from the department as well as the medications", Mr Munting said. [58] Asked as to the risk management strategies that would be needed if Mr Palmer was to return to the workplace, Mr Munting said:25
[59] Other problems identified by Mr Munting related to the skill mix and the added pressure which would be placed on other nursing staff. Closing Submissions Ms Cox, for the Minister: [60] Mr Palmer was not terminated for alleged drug addiction, he was terminated because he acted dishonestly and no longer had the trust of the agency. This behaviour was serious, systematic and calculated over many years. [61] There was no compelling evidence that Mr Palmer was addicted to Panadeine Forte. His pattern of behaviour and absence of withdrawal symptoms was inconsistent with the literature on drug addiction. [62] Mr Palmer was accountable for his own actions and behaviour and thus the consequences of those actions. [63] Mr Palmer had only very recently sought counselling for his problem. He had failed to follow up the earlier opportunity offered by Newport and Wildman. [64] Whilst there were previous cases involving misappropriation of drugs by nursing staff, the extent of the misappropriation was not of the same magnitude. In any event the CD5 put in place in December 2005 made the Head of Agency responsible for both the determination and sanction imposed. As such, the circumstances are not directly comparable with the previous cases. [65] Reinstatement is both unreasonable and unworkable. Ms Saint, for the applicant: [66] There is no dispute as to the facts. However the fundamental basis for the behaviour of Mr Palmer arises from a health problem, "for which he needs support and assistance to overcome this problem, not condemnation and expulsion from the healthcare workplace". [67] No one, the ANF included, condones the behaviour of Mr Palmer. Notwithstanding, support for the rehabilitation of Mr Palmer from his medical and nursing colleagues had been overwhelming, and indeed, virtually unprecedented. [68] The medical evidence is that addiction is a health issue. [69] The RHH does not have a policy in place for managing drug dependency issues. [70] Health professionals are susceptible to drug dependency issues. It is not uncommon for health professionals to remove medications for their own use. In the case of drug dependency, this misappropriation was not a matter of choice, but one of dependency. [71] The pattern of usage, together with symptoms (or lack thereof) of addiction, was not inconsistent with the medical evidence, allowing for the idiosyncratic nature of drug addiction. [72] There was no evidence that patient care was compromised. [73] If, because of a medical condition, Mr Palmer was unable to make an effective choice, but rather, was driven by necessity, then the decision of the employer was not "well founded" and hence not a valid reason for termination (see Selvachandran v Peteron Plastics26). [74] If the breach of the code was found to be a valid reason, then the termination was unfair on three grounds: · Mr Palmer has a physical disability for drug addiction, which requires treatment. · Other workers within the health system with an addiction continue to work and are supported in the workplace. · Mr Palmer has not been given the opportunity to rehabilitate and regain the employer's trust. [75] Since the discovery, Mr Palmer has actively sought treatment. [76] The consequences of termination are disproportionate to the behaviour. Mr Palmer has lost his career, income, social status and self-esteem. His income loss is compounded by the fact that his wife can no longer work because of a workplace injury suffered at the RHH. Mr Palmer has lost access to his nursing speciality and may, as a consequence, not be able to complete his neurological certificate. [77] There was a range of sanctions available to the Secretary, which fell short of termination. Findings [78] The ANF accepted that the investigation process conducted by the Department was not obviously flawed and hence no issues of procedural fairness arise. The question to be determined is whether there was a valid reason for termination, and whether the decision to terminate was within the range of options reasonably available to the employer. [79] Ms Cox submitted that there was no medical evidence to support the contention that Mr Palmer was addicted to Panadeine Forte. Whilst the Commission is in no position to make a medical diagnosis, I am able to take into account the following: · The sworn evidence of Mr Palmer. · The behaviour pattern of usage by Mr Palmer, whilst unusual, was within the parameters of the medical evidence presented to the Commission. · The correspondence from Clinical Psychologist, Julian McGarry states "Mr Richard Palmer has consulted me on three occasions for assistance in overcoming his drug dependency and depressed mood". · Mr Palmer has consulted a number of other medical practitioners and drug and alcohol specialists. He also volunteered his Panadeine Forte issue to Newport and Wildman in 2003. [80] On the basis of the above I am satisfied that there is no reason to conclude other than Mr Palmer has an addictive dependency to Panadeine Forte and that the misappropriation was for self-use. [81] From the evidence it is clear that drug dependency is considered in medical circles to be a treatable disease. [82] Ms Cox submitted that Mr Palmer was not dismissed because of his drug dependency and I accept that this was the case. To dismiss an individual in such circumstances, without allowing the opportunity for rehabilitation, would in my view be contrary to the more enlightened support and treatment approach reasonably expected in contemporary society, particularly from an employer with the resources and culture of the DHHS. It would also arguably be contrary to the provisions of s.30(4)(d) of the Act relating to "physical or intellectual disability". [83] This case revolves squarely on the admitted misappropriation of Panadeine Forte medication over an extended period of time. [84] Evidence was presented as to previous cases involving nursing staff diverting addictive medication for self-use. I do not accept the submission that these cases should be distinguished on the basis of the December 2005 change to CD5. As it was put to the Commission, the only material change was that the Agency Head made both the determination and imposed the sanction. Under the previous arrangements the determination would have been made by the State Service Commissioner. As there is no contest as to the facts or the determination that the Code had been breached, this is not a material change in the current circumstances. [85] It would not be appropriate to detail the nature of these earlier cases. Suffice to say that I reached the conclusion that the misappropriation of addictive medication for self-use has not in the past automatically resulted in termination. There were examples whereby staff had been supported by the Agency in a rehabilitation program, with varying degrees of success. I would however be wrong to conclude that drug dependency will always be a defence, and that misappropriation of medication will always be immune from the ultimate industrial sanction of termination. Each case must turn on its own merits. [86] There can be no doubt that the behaviour of Mr Palmer is at the serious end of Code breaches. Against that, the following factors must be weighed: · The evidence concerning the vulnerability of medical staff to drug misuse and the apparent reluctance/inability to recognise the problem and seek help. · The evidence relating to the absence of "choice" in decision making by drug dependent individuals. · Mr Palmer did not intend to compromise patient care and I am satisfied that it was highly unlikely that any patient was denied medication, even if that potential was there. · Mr Palmer freely admitted to his behaviour, cooperated with the investigation and has expressed remorse. · The personal stressors that gave rise to his behaviour. · There was no evidence that his clinical capacity whilst at work was in any way impaired. · Having been confronted with the reality of the position, Mr Palmer is now actively pursuing rehabilitation, albeit belatedly. · The level of support evident from Mr Palmer's medical and nursing colleagues. [87] Having weighed the totality of the evidence and submissions I have reached the conclusion that the decision to terminate was not outside of the range of sanctions reasonably open to the employer. It follows that I am not disposed to interfere with this decision. [88] This however need not necessarily be the end of the matter. [89] Mr Palmer's clinical ability has never been in question in an area where such skills are hardly in over supply. From the evidence of his treating clinical psychologist, Mr Palmer is highly motivated and there is every prospect of a full recovery. [90] Above all else the support and assistance offered by his medical and nursing colleagues has been quite extraordinary and in my experience, unprecedented. Given the opportunity for rehabilitation, I suspect the prospects for a successful outcome would be relatively high. The converse is equally true. Without employment in a clinical environment, with the attendant support and assistance of his colleagues, it is likely that Mr Palmer will be lost to the nursing profession. [91] With this in mind I strongly recommend that DHHS give consideration to the re-employment of Mr Palmer as a new employee on a prospective basis. Such re-employment would be at Level 1 in an appropriate environment. Given the nature of the evidence, the NSU ward would seem appropriate and certainly should not be ruled out. Such re-employment would be subject to at least the following conditions: · Mr Palmer undertakes an appropriate medical rehabilitation program. · Mr Palmer be certified by a medical practitioner as being medically fit to return to work. · Such practising restrictions determined to be appropriate by the Nursing Board of Tasmania and the DHHS. · That this event constitutes a final warning, with termination the likely outcome of any repetition. [92] It should be noted that prospective re-employment at a lower level, in itself amounts to a significant financial penalty, which sends a clear message as to the serious nature of the Code breaches. [93] I commend this recommendation to the parties. Tim Abey Appearances: Date and Place of Hearing: 1 Exhibit A13
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