|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Industrial Relations Commission Transcripts |
AUSCRIPT PTY LTD
(Administrator Appointed)
ABN 76 082 664 220
Level 4, 179 Queen St MELBOURNE Vic 3000
(GPO Box 1114 MELBOURNE Vic 3001)
Tel:(03) 9672-5608 Fax:(03) 9670-8883
TRANSCRIPT OF PROCEEDINGS
O/N 10982
AUSTRALIAN INDUSTRIAL
RELATIONS COMMISSION
SENIOR DEPUTY PRESIDENT KAUFMAN
BP2004/4285
APPLICATION FOR TERMINATION
OF BARGAINING PERIOD
Application under section 170MW of the Act
by Metropolitan Ambulance Service for orders
to terminate bargaining period BP2004/3776
MELBOURNE
10.05 AM, THURSDAY, 29 JULY 2004
Continued from 28.7.04
PN2003
THE SENIOR DEPUTY PRESIDENT: Mr Friend.
PN2004
PN2005
MR FRIEND: Dr Fitzgerald, for the record could you state your full name and address, please, again?---Mark Christopher Barry Fitzgerald. (Address supplied)
PN2006
Thank you. You are a qualified medical practitioner?---Yes, I am a qualified medical practitioner in 1981 through the University of Melbourne. I am a Fellow of the Australasian College for Emergency Medicine. I am a Member of the Royal Australian College for Medical Administrators.
PN2007
Thank you. Now, you have a position at the Alfred Hospital?---I am Director of the Emergency and Trauma Centre.
PN2008
And for how - - -
PN2009
THE SENIOR DEPUTY PRESIDENT: Emergency?---And Trauma Centre.
PN2010
And Trauma, thank you.
PN2011
MR FRIEND: And for how long have you held that position?---Six years.
PN2012
And what does that position involve?---I am responsible for the clinical operations and running of the department.
PN2013
And what areas does the department deal with; of the areas of the hospital's operation?---I am sorry, could you - - -
PN2014
Yes. The emergency and trauma centre, perhaps if I put it this way, the trauma centre is separate from emergency?---No, the trauma centre is part of - the footprint of the emergency department. Up until four years ago it was a separate department but in the new building program we integrated the two.
**** MARK CHRISTOPHER BARRY FITZGERALD XN MR FRIEND
PN2015
And the emergency department is the standard sort of hospital emergency department?---Yes, it is a - - -
PN2016
Yes. The trauma centre is something additional to that, is that right?---Yes. It is an area within the emergency department that is specifically designed and designated for the reception of resuscitation of seriously injured patients.
PN2017
THE SENIOR DEPUTY PRESIDENT: Yes, and The Alfred and the Royal Melbourne are the two metropolitan hospitals with trauma centres, as I understand it?---Yes, the Royal Children's Hospital is also a major trauma centre for paediatric services.
PN2018
Yes, thank you.
PN2019
MR FRIEND: Now, prior to taking up that position six years ago what did you do?---I was Director of the Emergency Department at St John of God Hospital in Ballarat. And five years prior to that I was Director of Emergency Services at the Ballarat Base Hospital.
PN2020
So that is 16 years we go back that way in emergency services?---I have been director of a department for 20 years, since 1984. I have also been employed by the Rural Ambulance Service and the Western Region Victoria Ambulance Service prior to that since 1986.
PN2021
And what was your role with those services?---Medical adviser.
PN2022
Yes, I see. Now, in the work at The Alfred, are you familiar with the bypass and HEWS systems?---Yes, I am.
PN2023
Yes. Does The Alfred emergency department use the bypass and HEWS systems?---Yes, it is across metropolitan system and we utilise it.
**** MARK CHRISTOPHER BARRY FITZGERALD XN MR FRIEND
PN2024
Yes. Now, in terms of the HEWS system, are you aware of some bans being put in place by the ambulance employees earlier this month in relation to acknowledging a hospital's HEWS status?---Yes, and I am aware of the current bans in place.
PN2025
Yes, and the bans about acknowledging bypass status?---Yes, I am aware of those bans as well.
PN2026
Now, in terms of the Alfred Hospital, have those bans had any effect on the hospital's operation, the emergency department's operation?---No, it has made no difference.
PN2027
Made no difference?---No.
PN2028
Why is that?---Well, if I can preface this, your Honour, with a bit of an explanation. The current system of HEWS and bypass is across Melbourne system and there was considerable discussion prior to it being implemented, and the Alfred Hospital was actually not in favour of the current system being introduced but we accepted that - I guess we are in the minority and we accepted the current system. And, in fact, our point of view was that people who were sick, unless they have a specific condition that requires specialist care not available at the nearest appropriate emergency medical - emergency department, should be taken to the nearest emergency medical department.
PN2029
THE SENIOR DEPUTY PRESIDENT: Sorry, I didn't quite follow; people who require specialist care that is not available at the nearest medical department - - -?---I didn't phrase it correctly. Our point of view is that if you are sick and you require an ambulance, you go to the nearest hospital, unless you have a condition that can't be managed appropriately at that service: for instance, major burns, some obstetric conditions, paediatric conditions, major trauma.
**** MARK CHRISTOPHER BARRY FITZGERALD XN MR FRIEND
PN2030
MR FRIEND: Now, we have heard evidence from doctors at other hospitals in Melbourne - the Western General, the Royal Melbourne, Frankston Hospital and St Vincent's - that they go on bypass because it is difficult for them to take additional patients, or they are worried about additional patients coming in by ambulance. Do you have a view about the effect of additional patients in those circumstances, given what you have just said?
PN2031
MR PARRY: Which circumstances?
PN2032
MR FRIEND: The circumstances I have just described.
PN2033
THE SENIOR DEPUTY PRESIDENT: Well, now that you have been interrupted, would you mind repeating the question again, please?
PN2034
MR FRIEND: It was a long one. I am sorry, doctor. I want you to understand that doctors from the four hospitals that I mentioned have given evidence that they have bypass. They use bypass because, in a sense, they form the view that they have got a full house. You have just said that you think that patients should go to the nearest hospital. Do you have a view about the appropriateness of the full house bypass way of dealing with things?---There is many approaches to the problem. If I can just explain to you that my upbringing in emergency medicine was in a provincial hospital where bypass wasn't available.
PN2035
Yes?---And you just had to be prepared to deal with whatever next was coming in the door. So I guess that is my background. And, in fact, except for certain peak periods, the demand on our department is relatively constant. We know that we admit pretty much 31 patients every day, and there is certain peaks and troughs which we try and accommodate. When we did have a major problem with bypass and the calling of bypass two or three years ago, we tried to standardise the process of measuring workload within the department, and we did a regression analysis over three years of all of the factors that seem to contribute to the request for bypass within the department. We weighted those factors. We put them into basically a computerised database which the clerk updates every four hours which predicts the likelihood of demand exceeding our capacity in 4, 8, 12, and 24 hours.
**** MARK CHRISTOPHER BARRY FITZGERALD XN MR FRIEND
PN2036
Yes?---And that information is sent to myself, to the nursing manager of the department, the co-directors of the hospital so that we try and implement some way of accommodating what we know is coming down the tracks.
PN2037
And how do you implement ways of accommodating what you think might be coming down the track?---Okay. Well, the first thing is that we have taken subjectivity out of the request for bypass. Now, you have to basically achieve an 80 per cent likelihood according to this statistical analysis for going on bypass before the staff in the department are able to request it. Secondly, it highlights what areas within the department are likely to contribute to the request for bypass. It may be that there is a shortage of critically care trained nurses, or that there is too many ventilated patients in the department requiring increased staffing support, or there is a lack of inpatient beds, or that neighbouring hospitals are on bypass. There is a variety of factors. I brought a printout of it, if you wish to have a look at it.
PN2038
THE SENIOR DEPUTY PRESIDENT: That is a matter for your counsel.
PN2039
MR FRIEND: And when you use that, what steps do you take?---Okay. Well, then what happens is the - so prior to this tool, people would just ring me and request that the department go on bypass, but they have to address the issues that come up on the program first. And then every request for bypass has to go through the director of the department, which is myself.
PN2040
Yes?---And has to be approved. So what we have tried to do is develop some objectivity and consistency.
PN2041
Why did you change to a system which used objectivity and consistency from the previous system?---Because all of our systems that we are developing are aimed at developing objectivity.
PN2042
Yes?---It is a very difficult area to work in. What we try and do is make decisions based on objective data, not just clinical decisions but management decisions as well.
**** MARK CHRISTOPHER BARRY FITZGERALD XN MR FRIEND
PN2043
Were there occasions that you went on bypass before this system when it was unnecessary?---There were occasions when we went on bypass previously that wouldn't go on now.
PN2044
Yes. Are there occasions now when you go on - I am sorry, when you don't go on bypass when perhaps you should?---Well, look, these are subjective discussions.
PN2045
Yes?---You are talking about whether it is unnecessary, whether I should. I am telling you there is a tool there that we use.
PN2046
Yes?---We have got objective data and, if we fulfil the requirement, we will request to go on bypass.
PN2047
And whether or not you are on bypass, are you able to cope with the patients who come into the hospital?---When we looked at the data regarding whether on bypass or not, it makes no difference to the number of ambulances attending our department so - - -
PN2048
I am sorry, whether you are on bypass or not it makes no difference to the number of ambulances attending?---Yes, that is correct. And so - now I am talking about a specific department.
PN2049
Yes?---And there are certain cases that we just accept automatically: major trauma, burns, some neurosurgical emergencies. They have to come to us. We have to be able to accommodate them. It is as simple as that.
PN2050
Yes. Pardon me a moment. Thank you, Dr Fitzgerald.
PN2051
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2052
MR PARRY: If your Honour pleases. Doctor, as I understand the position, you are a bit of a critic of the HEWS and bypass systems?---Yes, I am.
PN2053
And you haven't made any particular secret of that publicly, have you?---I am not too sure whether I have had the opportunity to address it in a public forum.
PN2054
I see?---I have made no secret of it with the Metropolitan Ambulance Service, with other hospital directors, and with the Department of Human Services when this system, particularly the current system, was introduced.
PN2055
Yes. Just - you understand, of course, that bypass is a system that has been around for quite some time?---No. What I understand is that there has been a system called bypass that has had extensive modifications over the last 20 years and when in 1983 I was working at PANCH, I recall the director of that emergency department having to ring Tom Roper, who was the Minister for Health, at a barbecue on a Sunday afternoon because that was the level at which you had to get bypass approved. And what I have seen is a disintegration of the SOS or May Day that the bypass used to signify, whereas it has now become a standard and routine way of coping with hospital demand which is predictable. So the current system is just another modification and another, what I believe, decay of the basic ethical principle behind bypass.
PN2056
Yes. The current system is the one that involves HEWS, doesn't it?---That is correct.
PN2057
Now, when - as I understand your evidence, on occasions you or your hospital department still calls a bypass situation?---Yes, that is correct.
PN2058
Do you call a HEWS situation?---Yes, we do.
[10.20am]
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2059
Right, and your evidence is that you have a particular system you have developed in your hospital for making the assessment of whether you go to bypass or not?---Yes, we try to make that objective and reproduce or - - -
PN2060
Right, and the other hospitals, you were asked about the other hospitals, you don't know the circumstances in which they call bypass; if they call bypass, you don't know the circumstances in which they would call bypass, do you?---No, unless I directly ring them and ask them when I am working on the floor.
PN2061
That is not your normal practice, is it?---Yes, it is on occasions.
PN2062
On occasions you ring other hospitals and ask them why they have gone on bypass?---Yes, that is correct.
PN2063
I see. Why do you do that?---Because what often happens is the admitting officer at The Alfred, who is a senior doctor on the floor, gets quite a number of calls to receive patients. A good example is a major trauma patient in Gippsland, and we may be - we may not have intensive care beds, the department may be very busy. So we might ring, for instance, the Royal Melbourne to see whether they would accommodate the patient because we ask our doctors to try and solve the problem, not just say they can't accommodate them. A patient may have put their hand through a circular saw at Werribee. We have got quite a sophisticated plastic surgery unit but so as St Vincent's and, although they are on bypass, you know, I might ring, for instance, the plastics people at St Vincent's to see whether they could take this hand for re-implantation and such like.
PN2064
And I take it sometimes they can and sometimes they can't?---That is correct.
PN2065
And you accept their word presumably?---Absolutely.
PN2066
So, and you respect them as professionals in making their own assessment of when it is appropriate they go on bypass?---That is correct.
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2067
Yes. Now, bypass, as I understand it, is a system whereby you are, in effect, notifying ambulances that, unless for trauma patients of a particular sort, you are, in effect, full and you don't want other categories of patient to turn up; is that a fair description?---Yes, I think so, yes.
PN2068
So presumably when you go to bypass status, you are saying to the ambulance service and to the hospital emergency department: we are at a position now where we don't - we are full, we will only take patients that are in a trauma/life threatening situation?---That is our preference. The third factor that you have forgot to include with the - and the reason HEWS was introduced and the bypass, but particularly HEWS, is to notify the rest of the hospital, the rest of the department. They are dynamic situations and if you can give people a heads up on how busy the emergency department is, particularly within the hospital, they may be able to discharge people early, they may be able to take some of the inpatients down to the transit lounge who are awaiting transfer to other institutions. And then that effect may, within a short period of time, free up some beds within the hospital and, therefore, you are able to shift people out of the emergency department. So it is an opportunity to communicate not only with the ambulance service and other hospitals, but also within departments within your own hospital that your department is under a fair amount of pressure.
PN2069
THE SENIOR DEPUTY PRESIDENT: Doctor, if I may interrupt there. The description you have just given, as I understand the evidence, is pretty much what my understanding of HEWS is, is that correct; have you just described a HEWS type situation?---Yes, I think that is - I think that is the intention of HEWS.
PN2070
Yes, thank you?---Yes. Yes, that is correct.
PN2071
Yes, I just wanted to make sure that my understanding is correct. Yes?---Yes, that is correct, your Honour. Yes, I think that is the intention, and if I can amplify on that. The model for HEWS was developed out of the Austin Hospital and what they used to do was call an internal emergency over their paging system, like thee code yellow, to notify other areas within the hospital. And, in fact, that was the great attraction of the system because sometimes the departments were working in isolation to the impatient units.
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2072
Yes, thank you.
PN2073
MR PARRY: Right. Now, I think your Honour - his Honour's question was on HEWS. If bypass is the next stage up, it is a more serious level than HEWS, isn't it?---Yes, that is correct.
PN2074
Now, presumably it is a serious decision to go to bypass, as far as you are concerned?---Yes. No, I - neither myself or the staff in my department like to go on bypass.
PN2075
You avoid it if you possibly can?---That is correct.
PN2076
And how often a week would you notify that status?---Well, again it is variable but it may be twice a week.
PN2077
Twice a week?---Yes, perhaps - yes, on average, about twice a week. Before we introduced this system, it was occurring 10 to 20 times per week.
PN2078
THE SENIOR DEPUTY PRESIDENT: Sorry, previously it was?---10 to 20 times per week. I brought the exact data if you want me to refer to it.
PN2079
No, I think an approximation is sufficient for the moment.
PN2080
MR PARRY: You have no reason to believe it is not treated as a serious decision and other hospitals with emergency departments, have you?---I don't make any subjective opinions about other departments, and I don't engage in any criticism of them. I mean, every department is slightly different. It has got its own concerns; different operating circumstances in - and I am responsible for my department and the patients it receives.
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2081
Now, just so I can understand one aspect of your evidence, you said that since you have - since the bans have been in place since, say, through July, since let us say 4 July, you haven't noticed any difference in the number of ambulances turning up. Is that - I just want to be clear on that because, as I understand it, when you would call a bypass status, you are really saying to the ambulance service: look, only in the trauma life threatening situations will we take patients but all other category of patients should be taken elsewhere, we are on bypass. Do you follow that?---Yes.
PN2082
So when you have gone on bypass in the last three or four weeks - and I assume there would be about seven or eight occasions - is it your evidence that it has made absolutely no difference to the category and number of patients turning up?---Mr Kaufman, can I refer to some data that I have brought along to - - -
PN2083
THE SENIOR DEPUTY PRESIDENT: Yes, doctor, yes?--- - - - answer this question. Thank you. What I have done is I have got the data of ambulance attendances up until yesterday at 5 o'clock, and data from the previous July 2003, July 2002. What we have noticed over the last three years is that there has been an increase in people with life threatening conditions presenting by ambulance. In July 2002 the category 1 and 2 patients coming in were 26 per cent. This current month they are 35 per cent. The majority of the patients brought in by ambulance are people with major or life threatening problems. There are only 15 patients per month out of 1000 who are category 5, and 172 this month. So it will work out to be about 185, 190 for the month which are category 4. And a number of those category 4 patients which are considered non-urgent are patients with - who will have conditions that The Alfred is familiar with. There is large transplant programs. We run HIV medicine programs. There are people perhaps with a significant past history at The Alfred and they will have already been accepted prior to the ambulance service being dispatched to pick the patient up. So if I could just - just for clarity, if I can be absolutely clear about this, bypass lasts for a period of two hours. The emergent patients which are the majority of the patients that we get by ambulance are going to come in any way. The patients who are using an ambulance that may not necessarily be urgent, what happens is the doctor calls us or the other facility calls us and says, can we take this patient. We will accept the patient. Then the patient's transfer has to be organised through the ambulance service. And then the transfer has to be effected, and the patient
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
has to be brought to the hospital. And that takes two hours. So for the non-urgent patients that you are talking about for the two hour window, the bypass makes very little difference because we have already said that we will receive those patients. And the time taken to effect that transport is at least as long the bypass period. So again if I could just re-emphasise, most of the patients brought in by ambulance are emergency patients who are going to come in any way, whether we are on bypass or not.
PN2084
MR PARRY: Because of the nature of your hospital?---I think I made that quite clear.
PN2085
Yes, that is quite clear. I understand that. I am not sure that really answers what I asked. You see, what I was asking was, you see, bypass is an announcement to the ambulance service that, except for that category of patients that you have described, the others should be taken to other emergency departments of other hospitals that aren't on bypass. Now, I am assuming when you call bypass, you expect that to occur?---What actually happens, your Honour, is the ambulance clinician will ring us during that bypass period and say: look, we know you are on bypass but there is this patient that you have accepted, or there is this patient that is an old Alfred patient. And we think it is better that we accept that patient rather than, one, is because we have already given a commitment to accept the patient or, secondly, that we don't want the management double-handled. If they have got a long history at the hospital, it seems pointless in going to another institution that is not familiar with them, that institution doing a work-up, then having to transfer the patient back to our department some hours later. We think that that is not ethical.
PN2086
Yes, but what about a person that doesn't fit into those categories?---Yes, and there is a small number of those which I have tried to indicate with the data that I have given you.
PN2087
I am assuming during the bypass you expect them to go elsewhere?---We would like that to happen.
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2088
Yes. You would like them to go elsewhere because your department is at capacity?---Yes, but, sir, if I can just explain to you. What happens is that the emergency departments, particularly in inner city Melbourne, experience peak capacities often simultaneously; they are inter-dependent. And when one hospital is on bypass - for instance, St Vs or the Royal Melbourne - it puts a lot more pressure on the adjacent hospitals. So it is not like you can do this independently and not have effects on other institutions. And often we will ring the other institutions saying, look, we have got a patient at our triage desk who was en route to your hospital, you are on bypass, is it possible that they can still be received at your hospital? So I guess there is two issues involved. One is the principle of systems management which the bypass and HEWS principle encompasses. And sometimes conflicting with that is a matter of medical ethics; that the person wishes to come to your department, you feel you have got a responsibility to receive them. And sometimes it is difficult to say no, whatever the circumstance.
PN2089
So on around about the eight or so approximately occasions you have called bypass in the last month when the bans have been in existence, have other category patients turned up to your hospital, or haven't they; not trauma patients?---Via the ambulance service?
PN2090
Yes?---Yes.
PN2091
Yes, and have you noticed any change in that or not for those eight or so periods?---Yes. No, we have noticed, except for a period 2-1/2 weeks ago that, in fact, our department has been relatively quiet for this time of year.
PN2092
It has been quiet, your department?---Yes, it has been quiet, it has been quiet.
PN2093
I see.
PN2094
THE SENIOR DEPUTY PRESIDENT: Well, that raised in my mind a question. Mr Parry is assuming on your statistics that you have had eight or so bypasses called in the last four weeks; is that correct?---No, no - - -
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2095
Especially as you have said you have been fairly quiet?---Yes. No, we called quite a number of bypass - - -
PN2096
In the last four weeks?---The weekend two weekends ago, but that had nothing to do with the ambulance dispute. What happened was that there was a large demand for elective admissions on a Friday. We admitted over 30 elective patients on a Friday, which is very uncommon. It was - - -
PN2097
When you say we admitted - - -?---We, the hospital.
PN2098
- - - the emergency department or - - -?---We, the hospital.
PN2099
You, the hospital, not the emergency?---No, the - sir, the emergency department would have had on average 31 admissions for that day. There were 30 elective patients that came in to the hospital. It was the week after the school holidays so the staffing ratios were up to normal and obviously the hospital was keen to get rid of any backlog. And, unfortunately, on this occasion it just meant that those elective patients coming in on a Friday, which is unusual, took up a lot of impatient beds. So we had at one stage I think 60 people in the emergency department. And concurrent with that was that a number of other hospitals in Melbourne had a similar problem. I think the Royal Melbourne and St Vincent's had similar pressures; the precipitator to those I am not aware of. So that particular weekend was a particularly bad weekend.
[10.35am]
PN2100
Well, what is the capacity of your emergency and trauma department?---There is 41 bays in the department.
PN2101
Forty-one bay?---Forty-one bays.
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2102
Yes?---The bays are actually double-plumbed with oxygen suction, so in an emergency situation we feel we - in a disaster situation we can accommodate nearly 100 patients. On the weekend that I referred to, there is a transit lounge which backs on to the trauma centre. We opened up that transit lounge. We put six patients waiting in patient there into that area. The wards took additional patient into the treatment room and within a matter of perhaps a couple of hours we went down from 61 patients in the department to 41 in the wards and the nursing staff were very competent - try and accommodate those persons.
PN2103
Yes. And on average, what is the staffing in the emergency department? The number of doctors and number of nurses?---The - there is at least one, usually two consultants on the floor from 7 in the morning till at least 2 in the morning, but at least half of the week there will be a consultant there 24 hours a day. There is two registrars who are advanced trainees in emergency medicine, there is at least one hospital medical officer, who is a second or third year postgraduate doctor, there is one intern. The interns don't work overnight. The - - -
PN2104
Don't work?---Overnight - because of supervision requirements. Regarding the nursing staff, there is on average 16 nursing staff in the department per shift.
PN2105
Yes, thank you.
PN2106
MR PARRY: Now, this decision to go on bypass, as I understand it, it is made by the medical practitioners in the emergency department?---The request for it is made by the resource nurse who is a senior nurse in the department. The ..... officer is a senior doctor.
PN2107
Right?---And they ring me.
PN2108
They ring you?---Yes.
**** MARK CHRISTOPHER BARRY FITZGERALD XXN MR PARRY
PN2109
And in your experience, does the Minister or the Department of Health direct or instruct your hospital not to go on bypass?---No.
PN2110
No such directions given in late 2003 before the last State election?---No. We have had - never - never any direct communication.
PN2111
2002?---Since 1998/99 when I started there, we have had never any direct communication between the department and clinical issues. They set the strategic policies, but they don't interfere with the day to day running of the department.
PN2112
If your Honour pleases.
PN2113
PN2114
MR FRIEND: Thank you, your Honour.
PN2115
You mentioned the development - - -?---Excuse me, sir. Sorry. Sorry about that. Thank you.
PN2116
Doctor, you mentioned the development of the HEWS system at the Austin Hospital. Can you just explain how they came to develop that system again? I wasn't sure I understood that clearly?---Well, the way it was presented at a meeting at the Department of Human Services, it was a way of an early warning system for the inpatient component of the hospital, so that the - so that the hospital wards, the people within the hospital itself, would know then that the emergency department is under pressure and try and do whatever they could to increase bed availability.
PN2117
I think you said something about the way they were handling it before HEWS was developed?---Well, the communication had really been more between the emergency departments and the ambulance services rather than the hospital as a whole and the pre-hospital.
**** MARK CHRISTOPHER BARRY FITZGERALD RXN MR FRIEND
PN2118
Yes. Had the Austin Hospital been calling code yellow instead of HEWS?---Well, HEWS didn't exist at that time.
PN2119
Yes. So had they been calling code yellow?---That is my understanding.
PN2120
Yes. So, in a sense, for the Austin Hospital, HEWS was a replacement for code yellow?---You would have to ask the Austin Hospital that.
PN2121
You mentioned at one stage there while you were under cross-examination that bypass - and I think your words were - I am sorry, that some changes in bypass indicated a decay of the basic ethical principles behind bypass?---That is my opinion.
PN2122
Yes. Can you explain what you meant by that?---Yes. Well, if you can bear through a long-winded answer, but - - -
PN2123
THE SENIOR DEPUTY PRESIDENT: Well, try not to be too long-winded please, doctor?---In 1971 when the Alfred Hospital was built, the casualty department was opened a week before the wards were opened, and there has been a problem with inpatient beds ever since. And the reason for that was because it was felt that an access to emergency care was a priority in the community, and the reason people do emergency medicine and nursing is to provide that level of care. And on behalf of the - and the position with the Rural Ambulance Service is exactly the same as the ambulance officers involved, and it is very difficult to deny people immediate access to care because if you wanted to do that, then you wouldn't be doing that with your career in the first place, you would go and do something else. So it does create a significant ethical dilemma. Now, it is not so much a problem when you are working at Ballarat Base Hospital or Geelong or Bendigo where you have got no choice. You just have to accommodate the patients; they are your community, you have to deal with their problems, you have to have some means of having a back-up system. You have to be able to call in staff for the odd emergency situation where the load is greater than what you can deal with. And, you know, that is not unreasonable, and my feeling is the same applies to the metropolitan community; there is no difference.
**** MARK CHRISTOPHER BARRY FITZGERALD RXN MR FRIEND
PN2124
Yes?---You know, I have got great concerns about the patient who is one block from the Alfred Hospital being taken to Monash for treatment. I think we would be failing our community.
PN2125
Thank you, doctor?---If it is an emergency.
PN2126
Yes.
PN2127
PN2128
THE SENIOR DEPUTY PRESIDENT: Yes. Well, Mr Friend, you were going to - - -
PN2129
MR FRIEND: I think it was me next, your Honour. Your Honour, I was able to get the transcript overnight and I might, if I may, give your Honour some references which I would ask your Honour to look at. There aren't many. In respect to evidence that the bans have led to very little change, if your Honour would look at Dr Kennedy's evidence at paragraphs 311-12.
PN2130
THE SENIOR DEPUTY PRESIDENT: Just a moment; 311-12, yes.
PN2131
MR FRIEND: To 12. Dr Bradford's evidence at paragraph 469.
PN2132
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2133
MR FRIEND: Also Dr Bradford's evidence, and I might read this to your Honour, at 537-39 where he said at 37:
PN2134
We are concerned about the potential underlying risk of increased numbers, but we haven't noticed a particular change in the last 24 hours.
PN2135
And I put to him:
PN2136
What you keep coming back to is the potential for increased underlying risk?---That is correct.
PN2137
That would be a fair summary?---Yes.
PN2138
Dr Dent on that issue at 675. In relation to the issue concerning hospitals taking steps internally and making choices to take steps internally to deal with the bans, your Honour will recall my submission about it not - there being a break in the causal chain or a discretionary matter, either way. Dr Kennedy at 339, Dr Bradford at 445, 450-51, 478-81, 486-93, 508. Dr Dent at 675, 689-90. Dr Kelly at 791, 796, 815 and - sorry, it would be 812-822, not just 815.
PN2139
THE SENIOR DEPUTY PRESIDENT: Sorry, say that again?
PN2140
MR FRIEND: 812-822. Your Honour might remember that is where there was a long - attempts by me to get an answer and your Honour then asked the question and the answer came out. I would also direct your Honour's attention to Dr Dent's evidence at 659-61 which is on a different issue. That is about the notification that I referred to, notification of MAS and the fact that they prefer not to be called between 10 o'clock and 8 in the morning. And Dr Kennedy's evidence at 291-294 which is really dealing with ban 2 in the third group of bans, him saying that he is not really in a position to say whether or not that is going to have any effect, he is not the person to ask.
PN2141
Your Honour also said to Mr Parry yesterday that you weren't clear whether there was any evidence about the dispensation - any direct evidence about the dispensation for Western General Hospital in relation to the gas leak. The evidence in respect to that was from Mr Morris at 959-962. Now, your Honour, in relation to Dr Fitzgerald's evidence, I have a few comments to make. My submission, your Honour, is that it really puts into a context the submissions that I was making yesterday. The evidence that was called by MAS earlier in the week didn't at any point go to the level of saying that there was a serious risk or a problem, and that is because - and obviously it would have been better if we had known this earlier - bypass is something which is a tool for managing workloads. But I think Dr Fitzgerald, your Honour, put it very eloquently at the end of his evidence in re-examination when he said, look, if you are in the country, you just manage because there is no choice and there is really no reason why you can't do that in the city as well.
PN2142
The case that we put, your Honour, is that bypass, which is the main complaint against our industrial action, the ban in respect of bypass, is a means of managing hospital workload by pushing that workload on to ambulances. But that has its own ramifications in respect of availability of ambulances and there are other ways for hospitals to manage these issues. Dr Fitzgerald's evidence in respect to the changes that have occurred since the bans were introduced also supports the submissions that I put yesterday, your Honour, that there have been no significant changes, and that really is the effect of the evidence, and your Honour, that is why in my submission MAS waited 2-1/2 weeks before bringing this application.
PN2143
There is no reason on the basis of what the bans say to bring it, and in my submission the evidence establishes that there is no reason on the basis of the operation of the bans to form the view that there is endangerment to the welfare of the population who are a part of it. As I said yesterday, your Honour, my learned friend has not submitted that there is endangerment to the health and safety or the life of the population or a part of it. That is not the case we have had to meet. Your Honour, unless there is anything additional, those are the submissions.
PN2144
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. You will have a limited right of reply - - -
PN2145
MR FRIEND: Yes, I understand, thank you.
PN2146
THE SENIOR DEPUTY PRESIDENT: - - - in relation to Dr Fitzgerald's evidence if you need it. Yes, Mr Parry.
[10.50am]
PN2147
MR PARRY: If your Honour pleases, I think my learned friend commenced yesterday with submissions concerning Victoria and MacBean. It is stated that, as I understood the source of the power - I am not sure we need to get into this, but he did say the source of the power was the external affairs power.
PN2148
THE SENIOR DEPUTY PRESIDENT: Yes, he did.
PN2149
MR PARRY: I am not sure in the current legislation, whether that is actually the constitutional underpinnings of section 170MW. Indeed, I would contend that the Corporation's power underpins section 170MW. As I understand it, what is being sought here is a Division 2 agreement, as I understand. In any event, I am not sure your Honour need - - -
PN2150
THE SENIOR DEPUTY PRESIDENT: I am not sure that much will turn on that, Mr Parry.
PN2151
MR PARRY: No. I am not sure it would either, your Honour.
PN2152
THE SENIOR DEPUTY PRESIDENT: As I understand Mr Friend's submission, he was taking me to that to give flavour to the meaning of the words in the Act.
PN2153
MR PARRY: Yes. And - - -
PN2154
THE SENIOR DEPUTY PRESIDENT: But of course I have to apply the words in the Act in context.
PN2155
MR PARRY: Yes. It doesn't say, serious hardship.
PN2156
THE SENIOR DEPUTY PRESIDENT: No.
PN2157
MR PARRY: No.
PN2158
THE SENIOR DEPUTY PRESIDENT: And I think Mr Friend accepted that.
PN2159
MR PARRY: And there is full bench guidance on that, and I have handed up a document yesterday - it sets out some of those documents. Now, your Honour, I didn't go to that written outline in particular detail yesterday, and it is the position, the final submission was that we didn't - if there was endangerment to health and safety - well that is technically correct. We didn't submit there was endangerment to - we did submit, however, in that written document, it is in paragraph 7, that the industrial action that is being taken is threatening to endanger the personal safety or health, or welfare of part of the population. And we make that submission.
PN2160
So we have made that submission. Your Honour will note the other parts of that submission, which deal with our position. Now, your Honour didn't - I am not sure whether your Honour is in the practice of marking outlines of submissions.
PN2161
THE SENIOR DEPUTY PRESIDENT: Not usually, Mr Parry.
PN2162
MR PARRY: Well - if your Honour pleases. Now, your Honour, the outline that I have handed up goes through a number of different cases in paragraph 13 and onwards, which are various welfare cases when the Commission has - - -
PN2163
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2164
MR PARRY: Now, your Honour, also heard a submission yesterday that the hospitals weren't taking all steps they could to ameliorate the effects of the industrial action. Now, we say that is not a supportable submission at two levels. Firstly, your Honour would be aware that when the Commission comes to consider section 170MW, the focus is on the existence of the circumstance. The focus is not on what caused or can ameliorate that. Indeed, your Honour might recall the decision of a full bench - - -
PN2165
THE SENIOR DEPUTY PRESIDENT: I have to be satisfied that the bans are causing it though, don't I?
PN2166
MR PARRY: Yes.
PN2167
THE SENIOR DEPUTY PRESIDENT: Yes.
PN2168
MR PARRY: Yes. This sort of debate, I think, came up in a full bench decision under the preceding legislation print L9810, the State of Victoria v Health Services Union, decision of the Full Bench of 3 March 1995. I have copies of that for your Honour.
PN2169
THE SENIOR DEPUTY PRESIDENT: Yes. Actually I have it here.
PN2170
MR PARRY: You have it.
PN2171
THE SENIOR DEPUTY PRESIDENT: I think it has already been handed up.
PN2172
MR PARRY: Your Honour, what happened in that case was that the Health Services Union initiated their own bans that were found to be putting the health system at risk. And then turned up and sought to terminate their own bargaining period. Now obviously it was manifest that they were creating the position and could have easily taken away the bans, and removed the threat to public safety. And so employers turned up, the State of Victoria, not me - turned up.
PN2173
THE SENIOR DEPUTY PRESIDENT: I confess that it was me.
PN2174
MR PARRY: Well, one of - - -
PN2175
THE SENIOR DEPUTY PRESIDENT: One of my many unsuccessful submissions, Mr Parry.
PN2176
MR PARRY: One of the rare occasions your Honour's submissions weren't probably spot on. But the argument was, look, if they are creating the conduct, they can't very well come along and say, it is in their hands to stop the conduct. And the Full Bench said, well, they dealt with that argument under the heading - under a heading, should their conduct disentitle it to an order, and really the focus is on whether the industrial action is causing the situation. So at that level, it can hardly be said that the consideration of what steps could be taken to ameliorate the action is a particularly significant consideration.
PN2177
In - at the second level, we say there have been significant steps taken to ameliorate the action. And I think there were questions put to each of the witnesses that we called, each of the doctors, that they didn't have enough staff, and putting on more staff or resources. And each of the witnesses rejected that. Mr Kennedy - and I will just give the transcript references, your Honour. Mr Kennedy at 356 to 358. Mr Bradford at 470 to 476. And also at 494 to 500, and 513 to 519. Mr Dent at 634, and Mr Kelly at 789 to 823.
PN2178
THE SENIOR DEPUTY PRESIDENT: Sorry, what page - - -
PN2179
MR PARRY: Mr Kelly - I am sorry, Dr Kelly, at 789 to 823. So we say at one level, the issue is whether there is the effect. The second level we have taken - it is not a matter of extra staffing, it is - so steps have been taken. Another submission was made yesterday, your Honour, about Jones v Dunkel, and inferences. Well, I am not sure what the inferences are meant to be. We have led evidence of the hospitals, the way the system works at both ends as before, your Honour. We have called what evidence that is relevant to the issues.
PN2180
Your Honour, a submission was made that the MAS managers did not want to be bothered overnight. Your Honour, the evidence of Mr Dent was that MAS manager have responded to calls between 10.00 pm and 8.00 am, and Mr Dent gave evidence of that at 664 to 665. Your Honour, the submission was also made that there had been no evidence given about the effect, or little evidence - the effect of the new bans. The third bans that came into existence on Monday morning, we say that there was very clear evidence given about that by - and I will give again transcript references.
PN2181
Dr Kennedy at 261 to 271, 275 to 302, and 325 and 326. Dr Bradford at 437 to 442. Dr Dent, 635 to 641. And Dr Kelly at 757 to 759. Now, the case was opened with grandiose and flowery statements about the health of the - the position of the health system in Victoria, and various assertions have been made by officers and union officials involved in this industrial campaign. No doubt their view forms part of the basis for the campaign. Now doubt their view about the Titanic and such colourful phrases forms the underpinning for they are going down the track they are going.
PN2182
The aim of the campaign is clearly to put more pressure on. Your Honour has evidence in this case about the operation of the system in normal times from four senior doctors. You have evidence today from a further doctor. There is no evidence to support those flowery and overwrought statements about the health system. And indeed, it bears - it can only in any event assist our case either way. Now, your Honour, finally - your Honour asked yesterday about assuming that your Honour was satisfied as to threat and the jurisdictional underpinning, the exercise of the discretion, and what factors your Honour could take into account in exercising the discretion.
PN2183
Now, we would say there is - if your Honour was minded to terminate or suspend, those are the options. Your Honour, I think considerations, we would say, are firstly, the likelihood of agreement being reached in the near future. That would bear on whether there was a suspension or termination. Secondly, whether there is a particular event coming up that suspension can deal with. Now, your Honour, there have been a couple of cases where suspension has occurred because an event is coming up that the industrial action particularly affects. And two examples of that were the decision of the Vice President Macintyre, when he was dealing with the Wollongong University students and their results going out.
PN2184
And he suspended the industrial action to enable that event, which was the cause of the threat to occur. On another occasion, Senior Deputy President Lacy, and these are cases that we have in our outline at the end of it - Senior Deputy President Lacy dealt with the Latrobe Valley v Gas Supplies. And there was a concern there about a particular maintenance program, if that didn't take place, the threat. So he suspended for the period of that particular incident. So in a way we are looking - the Commission is making an assessment of events in the future, as to whether the threat will disappear or be ameliorated by the removal of the industrial action for a period.
PN2185
Now, we have listened carefully to these submissions of the Union yesterday, and I think my learned friend made a submission at paragraph 1992 in respect of suspension. And he, in effect, said at paragraph 1992, and I quote:
PN2186
In terms of discretion, it is clear that the parties are a long way apart. We acknowledge that, your Honour. We don't anticipate that a suspension ...(reads)... lawfully in an attempt to reach agreement. That not having worked over this period of time, there seems to be nothing to be gained by a suspension.
[11.05am]
PN2187
Now, that is an important submission. It indicates that my submission yesterday about the likelihood of the suspension contributing to some resolution is ameliorated somewhat, and indeed, supports more strongly the termination option.
PN2188
THE SENIOR DEPUTY PRESIDENT: I am sorry, what paragraph number? I am trying to find it, but I can't.
PN2189
MR PARRY: 1992.
PN2190
THE SENIOR DEPUTY PRESIDENT: 1992. Thank you.
PN2191
MR PARRY: So, having said that, that would indicate that the first factor leans more in favour of termination in these circumstances than in favour of suspension.
PN2192
THE SENIOR DEPUTY PRESIDENT: Yes. And that is your primary position as well?
PN2193
MR PARRY: That is our primary position. The second submission, or the second issue, is if - that we say is relevant to this, is when something is going to occur in the future which is going to ameliorate the threat. And this is more what my learned friend didn't say than what he did say. He didn't say the campaign is going to - or the particular threats that are occurring, there is going to be any change to that. The evidence of Mr Morris appears to be fairly strongly that it is going to continue on, he has got strongly-held views, it is fairly clear.
PN2194
We submit that this campaign is going to continue on, and in those circumstances with little agreement to be reached or little likelihood of agreement and the continuation of a campaign that we say is having the - creating the threats that we say it has, we say in those circumstances our first option remains very much our first option. Now, we do stress that we - your Honour, on that point of course I think Victoria v McBean, the case itself does refer to a document handed up yesterday - - -
PN2195
THE SENIOR DEPUTY PRESIDENT: That is the one in the Industrial Relations Court, is it?
PN2196
MR PARRY: Yes, the one in the Industrial Relations Court. That in effect referred to - yes, it is on page 453. That is where the Commission is concerned with the predecessor to MX, sorry, the court was concerned or made some observations about the restrictions with regard to those engaged in essential services, and that is an arbitration on the paid rates position. That is on page - I am sorry, your Honour, on page 453. Now, your Honour, that is of course not to say that the first and primary intent of those for whom I act is not to reach an agreement, because that is their intent, and it is to be hoped that if termination occurs there can be intensive conciliation and negotiation to achieve that end. if your Honour pleases.
PN2197
THE SENIOR DEPUTY PRESIDENT: Yes, thank you. Mr Friend, in relation to Dr Fitzgerald I think there is very little to reply to.
PN2198
MR FRIEND: I don't think anything was said, your Honour. I wouldn't try my hand.
PN2199
THE SENIOR DEPUTY PRESIDENT: No. I wouldn't advise it. Yes. Well, thank you, both of you, for your submissions. I will reserve my decision, but I indicate that I will hand down a decision at 10.00 am tomorrow. Whether that will be written or oral remains to be seen, and we will adjourn this matter until 10.00 am tomorrow for decision and then commence the Rural Ambulance Victoria matter immediately thereafter. I adjourn the Commission.
ADJOURNED UNTIL FRIDAY, 30 JULY 2004 [11.10am]
INDEX
LIST OF WITNESSES, EXHIBITS AND MFIs |
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/other/AIRCTrans/2004/3125.html