CITATION:	Lapthorn v Office of the Health Ombudsman (No 2) [2017] QCAT 353 	
PARTIES:	Mark Lapthorn
(Applicant)	
	v	
	Office of the Health Ombudsman
(Respondent)	
APPLICATION NUMBER:	OCR013-17	
MATTER TYPE:	Occupational regulation matters 	
HEARING DATE:	1, 2 & 4 August 2017	
HEARD AT:	Brisbane	
DECISION OF:	Acting Deputy President O’Callaghan	
DELIVERED ON:	13 October 2017	
DELIVERED AT:	Brisbane	
ORDERS MADE:	1.	The decision of The Health Ombudsman dated 12 December 2016 to issue an Interim Protection Order is set aside.
2.	Any application for costs may be filed in the Tribunal and served on the other party, together with written submissions in support, by 4:00pm on 3 November 2017.
3.	Any submissions in response to any application for costs must be filed by 4:00pm on 17 November 2017.	
CATCHWORDS:	PROFESSIONS AND TRADES – HEALTH CARE PROFESSIONALS – OTHER HEALTH CARE PROFESSIONALS – Paramedics – whether the Health Ombudsman has decided to issue an interim protection order – where applicant has applied to review the interim protection order – where applicant performed an unnecessary examination of an infant’s genitalia – where applicant previously performed a carotid sinus massage outside his scope of practice – where applicant previously checked out more ampoules of a restricted drug than was permitted to – where applicant previously failed to complete administrative tasks – where applicant expressed insight and changed behaviour in respect of each – whether the Tribunal is satisfied on reasonable grounds that the applicant poses a serious risk to persons, or it is necessary to issue the order to protect public health or safety 

Health Ombudsman Act 2013 (Qld), s 68
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24

Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 70	
APPEARANCES:		
APPLICANT:	Allen JJ of Queens Counsel, instructed by Hall Payne Lawyers	
RESPONDENT:	Rice, GR of Queens Counsel, instructed by the Office of the Health Ombudsman	
REASONS FOR DECISION
[1]	Mark Lapthorn is an advanced care paramedic.  He has worked for the Queensland Ambulance Service (QAS) for over 20 years.  In June 2016, he was suspended by the QAS following a complaint from a paramedic crew partner concerning an allegation of inappropriate interaction with a female infant patient. The interaction involved examination of the perineal region of the infant.
[2]	Upon receipt by the Health Ombudsman (HO) of notice of the suspension, the HO gave notice to Mr Lapthorn on 29 July 2016 that it was proposed to prohibit or impose restrictions on his practice as an advanced care paramedic.
[3]	Mr Lapthorn provided submissions in response to the proposed action and participated in an interview with HO investigators.
[4]	The decision was made by the HO on 12 December 2016 to issue an Interim Protection Order (IPO) to Mr Lapthorn under section 68 of the Health Ombudsman Act 2013 (Qld) (HO Act), restricting him from providing any health service to persons under 18.  The order also placed other restrictions on his practice as a health provider, effectively requiring him to give notification to employers of the restrictions imposed.
[5]	Mr Lapthorn applied to the Tribunal to review the decision to issue the IPO.
Additional information regarding Mr Lapthorn’s conduct
[6]	Following the imposition of the IPO, the HO started an investigation into Mr Lapthorn’s conduct as a paramedic generally.
[7]	The HO formed a view that there was evidence of prior conduct of Mr Lapthorn, predating the incident with the infant, that was relevant to, and supported on review, the confirmation of the decision to impose an IPO.
[8]	There was a dispute between the parties as to whether evidence concerning the prior conduct could be admitted at the hearing of these review proceedings.
[9]	I determined in an earlier decision, that it was relevant and could be admitted subject to clarification of the conduct to be relied on and the right of Mr Lapthorn to cross-examine the witnesses at the hearing.
[10]	The HO articulated Mr Lapthorn’s other conduct of concern as being: 
a)	Use of a procedure known as a carotid sinus massage;
b)	Stocking his drug kit with five rather than two ampules of fentanyl as permitted;
c)	Leaving the station against QAS policy; and
d)	Non-compliance with various administrative directions.
Nature of the proceedings
[11]	The nature of review proceedings in QCAT is well established.  The review is a fresh hearing on the merits, the purpose of which is to produce the correct and preferable decision.
[12]	The tribunal can confirm, amend, set aside or substitute the decision or return the matter to the decision maker for reconsideration, with such directions as the tribunal considers appropriate.
[13]	It is also well settled that the tribunal must make a decision on all of the relevant material available to it at the time of the hearing.  This may include additional evidence not before the original decision maker.  Further, as outlined in my earlier decision in these proceedings, this additional evidence may relate to conduct of the practitioner, either before or after the decision under review was made.
What are the issues to be determined?
[14]	The tribunal must determine whether, in the terms of section 68(1) of the HO Act, it is satisfied on reasonable grounds that:
a)	Because of Mr Lapthorn’s health, conduct or performance, he proposes a serious risk to persons; and
b)	It is necessary to issue an IPO to protect the public health and safety.
What is the relevant conduct?
[15]	The examination of the infant was the conduct that brought about Mr Lapthorn’s suspension by QAS, and was the incident which resulted in the decision of the HO to issue the IPO.
[16]	It was this conduct which led the HO to decide that Mr Lapthorn posed a serious risk to persons.
[17]	The HO now relies on other conduct as well to support the imposition of the IPO and says the collective conduct is what gives rise to the risk and which requires an IPO to protect the public.
[18]	The review is a merits review and as such the HO is not precluded from making a different case to that which originally satisfied it that an IPO was needed.
[19]	I think it is appropriate however to focus initially on the examination of the infant and the risk associated with this conduct so that the significance of that event can be put into context.
[20]	The parties have agreed certain facts pertaining to the incident.
[21]	Relevantly they agree:
1.	At 3:18pm on 9 June 2016 the QAS received a call in relation to a 7 month old child, identified as vomiting blood and not alert;
2.	At 3:20pm Mr Lapthorn and a crew partner, Mistey Curran were dispatched to attend the incident at the home of the patient;
3.	Mr Lapthorn was the first officer and responsible for the assessment, management, and parental advice, including health care options of the patient;
4.	Mr Lapthorn and Ms Curran arrived at the residence at 3:26pm;
5.	Mr Lapthorn was initially advised that the patient was not tolerating any foods or liquids, had vomited serval times throughout the day, with one episode of diarrhoea;
6.	Ms Curran observed the patient as full faced, very well, great colour, bright eyed and looking around happily;
7.	Mr Lapthorn asked the patient’s mother for details including family history, patient medication and allergy details, and then assessed the patient in respect of her conscious level;
8.	Mr Lapthorn assessed the patient’s conscious level to be observant and not listless;
9.	The patient’s temperature was recorded as 37.4 degrees;
10.	Mr Lapthorn spoke to the patient’s mother regarding the quantity and colouration of the patient’s vomit, any abnormalities in respect of the contents of the diarrhoea and asked whether the patient had any rashes to which the patient’s mother responded no;
11.	The patient’s nappy was removed and inspected by Mr Lapthorn;
12.	Following the inspection of the nappy, Mr Lapthorn palpated the patient’s abdomen and watched for reflux activity;
13.	Mr Lapthorn thereafter placed his hands on either side of the patient’s labia and separated the labia with his fingers;
14.	Following examination of the patient’s labia, Mr Lapthorn said “she looks moist” or words to that effect;
15.	The patient was thereafter transported to the Kingaroy hospital and released a few hours later;
16.	The distance between the residence and the hospital was about 4 – 5 minutes’ drive;
17.	Mr Lapthorn completed an electronic ambulance record form (eARF) detailing his assessment, observation and treatment of the patient;
18.	Ms Curran did not sign the eARF.
[22]	Ms Curran reported the incident to her officer in charge (OIC).  The incident was then reported to the QAS acting Commissioner, which resulted in Mr Lapthorn’s suspension, and later the IPO.  
[23]	The risk of harm identified by the HO flowed from findings which suggested that the conduct in physically inspecting the infant’s genital area was potentially sinister or indecent.
[24]	Findings of fact were made by the HO that Mr Lapthorn had potentially breached ethical standards in the code of conduct for the Queensland Public Service and the National Code of Conduct for health care workers.  Findings were made, for example, that his conduct may have resulted in the following breaches:
•	Inappropriately touching an infant child…may constitute a breach of section 210 of the Criminal Code Act 1899, a provision which relates to the indecent treatment of children under 16 years.
•	Inappropriately touching an infant child in the genital region constitutes a breach of clause 1(1) & (2)(b) of the National Code, which compels health care workers to provide health services in a safe and ethical manner;
•	Inappropriately touching an infant child in the genital region constitutes a breach of clause 13(1), which states a health care worker must not engage in behaviour of a sexual nature with a client.
[25]	The HO concluded Mr Lapthorn posed a serious risk to persons because the conduct occurred “whilst attending a vulnerable child who was critically ill and as such demonstrated a serious departure from his requirement to comply with both ethical and legal obligations.
[26]	However, at the time of the hearing, the risk of harm identified by the HO was expressed, not in terms of risk of unethical, potentially illegal, or unsafe conduct.  The HO expressly stated that they were not attempting to make out a case of sexual gratification and no reference was made to potential breaches of specific codes of conduct. Rather, the risk was identified in much broader terms.  
[27]	The HO submitted that the examination of the infant was done without any reasonable clinical justification. It submitted that, when considered together with the other conduct uncovered in the investigation, the Tribunal could be satisfied on reasonable grounds that there was a risk that Mr Lapthorn would further engage in some form of clinical conduct, which was without reasonable clinical justification and which was potentially harmful. 
[28]	Mr Lapthorn submitted that a finding as to his motivation for conducting the examination of the infant was relevant in determining whether, because of his conduct, he poses a serious risk of harm.  The HO submitted that motivation for the conduct is irrelevant, the question is one of the risk associated with the conduct.
[29]	I accept that in circumstances where the risk of harm resulting from the conduct is readily apparent, a well intentioned motivation may not be of great significance.  In this case, where there is no evidence of actual harm from the conduct which occurred, and both the future potential conduct and risk of harm associated with that conduct are expressed in vague terms, I accept that it is relevant to consider and make conclusions, not only concerning whether objectively there was any clinical justification for the examination of the infant but also of Mr Lapthorn’s motivation for the conduct.
Evidence about the incident
[30]	The evidence put forward by the HO regarding the examination of the infant consisted of statements and oral evidence from Mistey Curran (his QAS partner), Travis Cramb (QAS), Adam Flory (QAS), Anthony Hucker (QAS) and Dr Fiona Thompson.  The evidence put forward by Mr Lapthorn in relation to the conduct was that of Dr Tija, Sonya Maria and himself.  Statements from the mother and grandmother of the infant were also provided.
[31]	Ms Curran expressed her concerns about Mr Lapthorn’s examination in her written statement.  After witnessing the examination, she says, “I couldn’t believe it. I didn’t know what to do or say” and “it was just something that was so random, it’s not something that we do.” 
[32]	She took issue with Mr Lapthorn’s decision to transport the infant to hospital.
[33]	She said in her statement:
Mark decided we would transport the child to the hospital.  I said to Mark, “do we need to be transporting this baby to the hospital? Can’t the mother take her?” Because I wanted to be free of it.  He said, “No, that’s what we do” and its not what we do, we don’t have to transport every patient we deal with.
[34]	She said she did not raise her concerns at the time with Mr Lapthorn.  She commented, “[h]e’s a good paramedic and he’s very very thorough[,] but he just does some stupid stuff.”
[35]	She gave oral evidence at the hearing and was cross-examined about the incident involving the infant.  It was apparent the incident upset her and her oral evidence was consistent with her statement in that regard.  She denied however making the statement attributed to her by QAS officer, Adam Flory, that “Mark took the nappy of [sic] the child and started playing with the child’s labia…”.
[36]	She also gave evidence about her knowledge of the other conduct of Mr Lapthorn which was subject to investigation.  Whilst I accept her feelings of concern and angst regarding the examination of the infant were genuine, generally, I agree with Mr Lapthorn’s representative’s submission that her cross-examination in relation to other conduct of Mr Lapthorn revealed a level of exaggeration and generalisation in her written statement.  This is dealt with below.
[37]	The HO filed statements from the infant’s mother and grandmother. They were not required for cross-examination.  The mother’s relevant evidence was to the effect that:
•	She was concerned about her daughter who had been vomiting through the morning.
•	The infant had not passed urine.  At around 2:00pm she and her mother called the ambulance.
•	When the officers arrived, she gave her daughter’s history to them.  The male officer examined the baby.  She was standing close so that she could see what was happening.  She said: 
I think he pushed on V’s [the infant’s] tummy.  I saw him checking V for moisture.  I saw him look inside V’s mouth and he undid V’s nappy and checked her labia by parting it with his fingers like I would do if I was cleaning her. It didn’t make me feel uncomfortable and I find him pretty good with children…I don’t really remember him keeping me informed of what he was doing while he was examining V.  I know I felt comfortable with him examining V because he’s been to the house a few times and treated my children.  I know he’s got his own children too …I can’t remember who actually suggested they take V to the hospital but I felt they were trying to discourage me from going in the ambulance.  The decision was just basically left up to me and I said, ‘well, yeah’ because I thought V needed to go to hospital.
[38]	The grandmother in her statement said, “I don’t remember details about the treatment provided, I can’t recall if they took V’s temperature, checked her nappy or removed any clothing, but nothing seemed out of the ordinary.  I thought the treatment they provided to V was good and I didn’t have any issues with the way V was treated.”
[39]	The HO relied on the expert evidence of Dr Fiona Thompson on the issue of whether the examination of the infant’s genitalia was clinically justified.
[40]	Dr Thompson is currently the clinical director of the Emergency Department, Children’s Health Queensland Hospital and Health Service at the Lady Cilento Children’s Hospital.  Her speciality is paediatric emergency medicine.
[41]	She provided a written report, gave oral evidence and was cross-examined.  She had been provided with statements from Ms Curran, the infant’s mother, Mr Lapthorn’s submissions to the HO and a transcript of his recorded interview.  In her written report and in oral evidence, Dr Thompson opined that:
•	The symptoms which the infant presented with, that is vomiting and a low grade fever, would usually be caused by a viral infection.
•	A careful assessment would need to be made of hydration status. The history should be obtained and examination should be undertaken to eliminate other causes.
•	Initial assessment in the pre-hospital setting should focus on vital signs, hydration assessment, alertness and presences of rashes.
•	It was not reasonable during the initial assessment to examine the genital area of a paediatric patient for signs of infection or dehydration.
•	Whilst conceding in cross-examination that examination of the genital area would reflect a child’s hydration status, she said if an inspection of the mouth had been done to assess hydration, a genital examination would provide no extra information.  It would be unnecessarily intrusive to a female patient.  It would only be appropriate to examine the genital area if there were concerns about a genital injury or a vaginal foreign body.
•	The initial presentation of the patient was not consistent with chlamydia, thrush or a tick.  In cross-examination, she conceded it was theoretically possible that the examination may elicit the source of the fever but stated that it was highly unlikely.
[42]	Dr Thompson is clearly an experienced paediatric emergency partitioner.  Her evidence was balanced and measured.  Relevantly however, she did concede in cross-examination that:
•	She had never worked in a pre-hospital setting.
•	She gave her opinion based on the assumption that a decision had been made by the paramedics to transport the patient to hospital prior to Mr Lapthorn conducting the examination.
•	She clarified that if no decision had been made to transit, it may have been appropriate to do a visual inspection of the genitalia, but not to physically part the labia.
•	She was not aware of any prescribed procedure for the examination of children and conceded there must be some flexibility for the discretion of the examining practitioner, provided the procedures adopted were appropriate.
•	She agreed there was a difference between retrospectively assessing a procedure undertaken and dealing with the circumstances in real time.
[43]	Anthony Hucker gave a written report and gave oral evidence.  Mr Hucker is employed by QAS as the director of clinical quality and public safety. He is responsible for the standard of patient care delivered by QAS paramedics.
[44]	Mr Hucker presented as knowledgeable and gave considered evidence.
[45]	He referred the Tribunal in both written and oral evidence to the ’clinical practice procedure’ manual for paramedics.  He is responsible for keeping that practice manual up to date.
[46]	Mr Hucker explained that the document defines the scope of practice for paramedics.  It defines what procedures paramedics may do in the field.  The manual is currently over 1,000 pages and is maintained as a digital document.
[47]	The manual prescribes procedures permitted to be undertaken by paramedics depending on their level of qualification.  It does not detail every element of practice or how examinations should be conducted.  As Mr Hucker explained, it does not prescribe in what circumstances an infant’s nappy should be removed.  That is something paramedics would come to understand from general practice.
[48]	Extracts of the manual relating to the assessment of paediatric patients were produced to the Tribunal.
[49]	I note that relevantly, the manual provides:
….It is therefore strongly recommended that all paediatric patients are transported by QAS for further assessment.
A detailed patient assessment is required on all paediatric patients irrespective of the nature of the case.
[50]	In relation to Mr Lapthorn’s examination of the infant, it was Mr Hucker’s view that:
•	An advance care paramedic would assess the infant patient suspected to be suffering from dehydration primarily through history of fluid intake and urine output.  A physical examination of the fontanel and skin elasticity would also inform hydration.
•	It is not in accordance with QAS clinical practice to check the vagina for signs of dehydration.
•	It is accepted QAS clinical practice to remove a nappy if there is trauma to the perineum or there is suspicion of the meningococcal virus.
•	Whilst Mr Hucker considered that minds might differ as to how thorough an examination should be, in his view it would only be acceptable to touch an infant’s genitalia if there was trauma to the area and there was a need to stop the bleeding.
•	There are no circumstances where it would be acceptable or appropriate to touch and spread an infant’s labia.
•	It is not expected that a paramedic will always be able to identify the location of an infection during handover at the hospital.  A paramedic should provide a provisional diagnoses to guide treatment decisions.     
[51]	Adam Flory was the officer in charge (OIC) at Mr Lapthorn’s station in 2015.  He provided written and oral evidence about Mr Lapthorn’s conduct during his time as OIC (which is dealt with below).  He had moved on from the station at the time of the incident with the infant.  He was however aware of it because Ms Curran phoned him to report her concerns shortly after the incident.
[52]	In his affidavit, he recalls that Ms Curran phoned him and says that “she was hysterical”.  She told him “Mark touched this baby inappropriately”.  He says he explained to her how serious the allegation was and that she said, “Mark believed the child was showing signs of dehydration.  Mark took the nappy off the child and started playing with the child’s labia” or similar.  He recalls she further said, “[t]hen he said to the family, I am checking to see if the child’s moist” or similar.
[53]	He said Ms told him “I wanted to say something but I opened my mouth and nothing came out”.  He said he asked her, “what happened from there?”  she said, “he physically inspected the child”.  He said he said to her, “did he physically insert anything into the child”.  She said, “I don’t believe so”.  He said he was physically sick hearing what had happened.
[54]	Mr Flory reported the incident to his manager.  He made his own observation of Mr Lapthorn’s examination of the infant.
•	He would never remove an infant’s nappy – if it had to be removed, he would ask the parent or his female partner to do it.
•	Different paramedics would do things differently but nowhere does QAS procedure describe checking a child’s labia for dehydration – nor is there a clinical procedure that warrants looking at the vagina.
[55]	Travis Cramb was the OIC at the station at the time of the incident with the infant.  He provided an affidavit, however he was not required for cross-examination at the hearing.  His evidence concerning the general conduct of Mr Lapthorn is favourable to Mr Lapthorn and is discussed below.  In relation to the examination of the infant, he said that Ms Curran had phoned him later on the day of the incident.  He said he could tell she was extremely upset.  She was concerned that Mark had touched the child inappropriately.
[56]	He said he could not believe that had happened.  He commented, “since my arrival at Kingaroy I haven’t seen or heard of issues with Mark and Mark treating children, so prior to this phone call I would have said that Mark was clinically competent to treat children”.
[57]	Mr Lapthorn relied on expert reports of Dr Liam Tija and Sonya Jane Maria who gave oral evidence and were cross-examined.  Mr Lapthorn relied on his affidavit and record of interview with investigators.  He gave oral evidence and was cross-examined at the hearing.
[58]	Dr Tija is a consultant paediatrician with over 20 years experience.  He currently works as a paediatric emergency physician in the emergency department at Monash medical centre.  In preparing his report, he had regard to the mother’s statement, and the statements of Mr Cramb, Ms Curran, Mr Hucker, Mr Flory, Dr Thompson and Mr Lapthorn.
[59]	I found Dr Tija’s evidence both in his report and at the hearing to be insightful and objective.
[60]	In essence, on the issues relevant to be determined he said:
•	He believes Mr Lapthorn’s motive for touching the infant’s genitals and parting the labia was to seek information as part of his clinical assessment.
•	Competent clinical assessment depends on the individual clinician’s interpretation of their real life observations in real time.  The clinician who was actually assessing the patient is the individual in the best position to decide what further information should be sought through further history taking or physical examination.
•	There are theoretically possible causes of fever in a young child which may only be revealed by an examination of their genitals – but that would be rare.
•	The membrane lining the area inside the vulvae and the vaginal canal could reflect a child’s hydration status.
•	Mark Lapthorn followed a sound clinical principle conducting the examination, that is seeking clinical information.  
•	In hindsight, the examination was unnecessary and misguided but was not in itself harmful.
[61]	He explained that he believed it is inadvisable for a paramedic or any other clinician to perform an examination of a young child’s genitals unless there is a clear and specific reason to do so.
[62]	He said that, while the examination could have revealed further information, it was unlikely.  His concern was that, if it was routine practice to examine a child’s genitalia, then “teaching children self-protective behaviours and autonomy over their own bodies would become more difficult across society”.
[63]	Dr Tija concludes in his report: 
I believe that Mr Lapthorn followed a sound clinical principle in examining the infant’s genitals.  However, I feel that it would be inadvisable for him or any other clinician to perform this sort of examination without a specific reason to do so. My opinion is based on my oncern of the potential effect of frequent or routine genital examinations of young children on the established culture which protects children against sexual abuse.  It is not based on any concern that Mr Lapthorn poses a risk of perpetrating child sexual abuse, or on any concern that the infant or her family were harmed....
[64]	Sonya Jane Maria provided a report and gave oral evidence.  She has a background in paramedicine.  She was an intensive care paramedic for 7 years and is now a manager and trainer of paramedics.  She is currently employed as a university lecturer in paramedical science.  She has experience in research into prehospital care.
[65]	Sonya Maria presented as a passionate witness. Her evidence was not objective at times in that she indicated she was giving answers to questions based on what Mr Lapthorn might have been thinking at the time.  She clearly has experience of issues and circumstances that paramedics are faced with in a prehospital setting.
[66]	I note her opinion that:
•	The presentation of symptoms of the infant warranted a thorough examination, noting the paediatric assessment guidelines, which provide that “a detailed patient assessment is required of all paediatric patients irrespective of the nature of the case”.
•	The examination was atypical but justification for variation of practice may include the paramedic’s belief that they are providing more optimal and tailored patient centric care.
•	If thrush, nappy rash, meningococcal rash or any other rash (or other hidden problem) were considered possibilities, the removal of the nappy and inspection of the genital region may be appropriate.
•	If the examination was for the purpose of identifying an infection then it may be justified.
[67]	She agreed in cross-examination that if there had been an examination of the mucus membrane of the mouth then there was no need to examine the genitals for the purpose of assessing hydration.
[68]	Mr Lapthorn’s evidence consisted of his recorded interview with investigators, his affidavit and his oral evidence at the hearing.
[69]	In giving his oral evidence and under cross-examination, Mr Lapthorn presented as honest and non-confrontational.  He accepted reasonable propositions put to him and made concessions even when, apparently, not in his interest.
[70]	His reasons for conducting the examination of the infant are found in his answers to questions from HO investigators as recorded in the transcript of interview.
[71]	He says of the incident:
•	He went into the bedroom where the mother, grandmother and the infant were;
•	He took the history of the infant, noting that the infant had not passed urine for some time, was not tolerating foods or liquids, and had vomited serval times with one episode of diarrhoea;
•	He assessed the infant as observant and noted a slightly elevated temperature.  He asked whether the child had any rashes or abnormalities, to which the mother said no.   
•	He then said to the mother and grandmother “well lets have a look at the nappy.”  Then the grandmother laid the infant on the bed and the grandmother and he undid the nappy.  He had a quick look at the nappy and weighed it in his hand;
•	He quickly palpated the patient’s abdomen;
•	He had a quick visualisation because the suspected illness was gastro intestinal and there were possible genital urinary issues;
•	He quickly visualised the buttocks and the perineal area for any external rashes;
•	He then applied genital pressure to the labia just to check in between the labia for rashes, infections and discharges, foreign bodies such as ticks or anything along that line;
•	He then did the nappy back up.  He discussed with the mother the options and whether she wished to stay at home, go to the GP or go to hospital;
•	The decision was made to go to the hospital.  He said that he was adamant that they were going to transport from the moment they turned up because of concerns about dehydration, but the parents always make the ultimate decision and have a right of refusal;
•	He concedes he did not expressly ask the mother’s consent before examining the infant’s genitals.  He said “I probably implied a little bit there as I said, well let’s have a look at the nappy, and everybody was quite happy with that.  I probably should have explained that I will do a quick genital observation and assessment to make sure there are no rashes, or discharge or foreign bodies.”
•	When asked by investigators as to what sort of rashes he was looking for, he said such rashes can be inflammation and erythema and can be associated with things like candida and chlamydia.
•	He also said there was potential for diseases like meningococcal;
•	He agreed he used words similar to “she looks moist” when examining the labia.  He said as well as infection he was also checking for dehydration.  He said dehydration does not just present around the mouth;
•	He was asked whether it is in QAS standard procedures to check the labia for dehydration and he agreed it was not written anywhere.
•	When asked whether he thought that was the correct treatment he said “[t]here was probably a bit of paternity in it in the fact that I was, with three girls you do check for things like chlamydia, candida infections, discharges, dehydration.  But I was just doing a full assessment or at least I believe that’s what the scope of the thing is.  Like it says do full head to toe surveys…if I was doing a stubbed toe I would not do a 12 lead ECG but given this was a gastrointestinal and possibly a genital urea issue, I felt it was appropriate at that stage.”
[72]	In cross-examination, Mr Lapthorn did concede that he was not going to get any more information about hydration by doing an inspection of the labia after having already inspected the mouth, but said he had been taught to examine head to toe.
[73]	It was put to him that once he had done the history check, taking temperature and checking the mouth for dehydration were sufficient steps, particularly when he had already decided to take the child to hospital.  He said he agreed it was in his head to take the infant to hospital because paediatric patients need to be transported but it is always a possibility the carers will say no, so therefore he needed to do a thorough examination.
[74]	He was asked by HO investigators whether he thought it was the role of a paramedic to ascertain the source of a fever.  He said, “[i]t’s an idea to get a thorough history and assessment so that you can handover to the emergency department. If you don’t give a good handover to the emergency department, a patient can be prioritised lower in their triage category and it may take longer to see a doctor.”
[75]	He was asked, in the context of looking for candida and thrush, what he was actually looking for when he examined the infant.  He said, “….the rashes, also within candida or thrush you can get a discharge”.  When asked about the discharge, he explained, “you can either get a clear one or a whitish discharge… [b]ut sometimes it can be if its early stages, it can be a localised rash, just within the labia.  I know my daughter had had it two weeks before, where it was just in between and not external.”  
[76]	The investigators asked him, on a number of occasions, whether he considered that his “inappropriate touching of the infant” breached particular aspects of the relevant codes of conduct.  For example, he was asked, “what do you say to the [statement that] inappropriate touching of an infant is a significant departure from your responsibility to demonstrate a high standard of work place behaviour and personal conduct?”  He said, “I didn’t consider it an inappropriate touch from a sexual point of view.  I felt that it was an appropriate assessment tool to glean that there were no infections or parasites hidden from view”.
[77]	When put to him that his conduct was potentially a criminal act relating to indecent treatment of children he repeatedly and consistently answered that it was not inappropriate touching of the child for any sexual gratification, he was trying to do a diligent assessment of the patient to rule out possible sources of the infection.
[78]	Again, in relation to the code of conduct, it was put to him that a health provider should not provide health care outside his or her experience.  He answered, “I feel I’ve got the experience there with three daughters.  Like I knew what I was looking for from a daughter point of view.  As a paramedic, probably not, all paramedics are going to do like, a lot of paramedics would never consider taking off nappies or perhaps to assess genitalia.  I would probably feel a bit remiss if I didn’t try and get all of the information for the receiving facility, I know, particularly with, and I’m using meningococcal again, as an example, but if you’ve got a rash underneath the nappy there could be meningococcal  and you’ve missed it….”
[79]	Mr Lapthorn said during the investigative interview and consistently in cross-examination that following the reaction to and the consequences of the examination of the infant, given those circumstances again, he would not conduct the examination of the genitalia.  During the interview, he said: 
I don’t think I would do it again.  I felt it was appropriate at the time to determine for any of signs and symptoms that might have been present….
If you are asking whether I would do it again, no it would be hands off assessment techniques…
…I would stop at visualisation, rather than doing the spreading of the labia like I did.  But you’re going to miss a couple of things, unfortunately if you do that, but the doctor can check that.
…I can see it was perceived in an inappropriate fashion.
…looking back, as I say it, I probably should have explained what I was about to do more thoroughly.
[80]	I am satisfied that there were no improper or indecent motives for Mr Lapthorn’s actions for conducting the examination.
[81]	Mr Lapthorn’s conduct was motivated by a desire to ensure that he conducted a thorough examination of the infant prior to a determination being made to transport her to hospital and if taken to hospital, to provide as much information as he could to the treating doctors. 
[82]	It was more likely than not that the infant would have been taken to hospital, however as Mr Lapthorn and Ms Maria pointed out, that is ultimately a decision for the parents.
[83]	The guidelines for paediatric assessment mandate a complete and thorough examination.  Mr Lapthorn was consistent in all of his answers, both to investigators and under cross-examination that he was carrying out a thorough examination from head to toe as he had been taught to ascertain hydration status and investigate the cause of fever.  I accept he genuinely had in mind looking for and eliminating ticks and other infections.  As his counsel pointed out in submissions, this examination was done against a background of him having three daughters, one of which was recently diagnosed with thrush.
Was the examination clinically justified?
[84]	Mr Lapthorn himself conceded in cross-examination that, in retrospect and in light of what has transpired, the examination went beyond what was clinically justified.
[85]	It is an intrusive examination.  It is clear on the evidence that the examination would not have provided any further information on the hydration status of the infant than the examination of the mouth and vital signs had already provided.
[86]	I also accept from the evidence of Dr Thomas, Dr Tija and Mr Hucker that there was minimal likelihood of the examination of the labia disclosing any infection such as thrush.
[87]	When this is weighed against the invasiveness of the examination, I find that it was not necessary.
[88]	It is relevant however to give consideration to Mr Lapthorn’s actions in the context of real time and not with the benefit of hindsight.
[89]	It is difficult to be critical of a paramedic in a prehospital setting with a sick infant conducting a thorough examination (which was not in itself harmful) to eliminate concerns.  In hindsight, the thoroughness of the examination in this case was, as observed by Dr Tija, “unnecessary and not warranted”.  In hindsight it should not have occurred.
[90]	When the purpose of the conduct, that is a thorough examination to obtain clinical information, is the focus of consideration it is difficult to conclude that Mr Lapthorn acted with a wilful disregard for clinical practice.  The conduct alone does not satisfy me on reasonable grounds that because of the conduct he posed a serious risk to persons.       
[91]	The HO says that the incident with the infant can now be considered not in isolation but in the context of other previous conduct of Mr Lapthorn which has come to light during their investigation.
[92]	They say that collectively the conduct is sufficient to enable the tribunal to be satisfied that Mr Lapthorn poses a serious risk to persons and an IPO is necessary to protect public health and safety.  They say that the current conditions imposed under the IPO should be broadened to prohibit Mr Lapthorn from treating anypatients, not only patients under 18 years of age.
What is the additional conduct relied upon? 
1.	The use of a procedure known as carotid sinus massage (CSM).
[93]	Mr Lapthorn has no recollection of the conduct but he accepts that in March 2015 he performed a procedure known as CSM on a patient.
[94]	CSM is a massage of the carotid sinuses in the neck.  It is a technique that can significantly and suddenly reduce a patient’s heart rate and blood pressure.  However, it carries with it a risk of embolism in the brain or the heart.  Mr Lapthorn’s use of this procedure came to light when the patient concerned came to the station in 2015 to thank the officers for their care.
[95]	The evidence of Anthony Hucker (Director of Clinical Quality in Patient Safety) was that the technique is not referred to in, or part of, the practice manual for paramedics.
[96]	He said the technique is recommended by the Royal Australian College of GP’s to treat a fast heart rate (that can cause a lower of blood pressure and collapse) only if the preferred technique of valsalva manoeuver fails.
[97]	He said to the best of his knowledge the procedure is not currently used or taught to paramedics because of the small risk of neurological complications associated with the procedure.
[98]	When it came to light that Mr Lapthorn had used the procedure on a patient there was an internal investigation undertaken.  Daniel O’Brien was the clinical support officer given the job of conducting the investigation into the clinical incident.
[99]	In his file note of the interview with Mr Lapthorn, Mr O’Brien stated that Mr Lapthorn indicated he could not recollect using that technique.  Mr Lapthorn is recorded as having said that the technique was “taught many years ago” but had “gone out of vogue with QAS some time ago”.
[100]	Mr Lapthorn’s evidence to this effect was confirmed in his affidavit.  He recollected the procedure being taught years ago and agreed that it was not part of the current procedure.  He was not however aware that the procedure was “banned”.
[101]	In 2015, following his investigation into the incident, Daniel O’Brien recommended educational support for Mr Lapthorn.  He was placed on and completed a clinical development plan.
[102]	In oral evidence and under cross-examination, Mr Lapthorn conceded that he would have been aware at the relevant time that CSM was not in the practice manual.  He said he is now aware of the risks associated with the procedure.  He also conceded his failure to record the use of the procedure in the record of job was a serious oversight as it was information that the hospital should have been aware of for admission of the patient.
[103]	I accept that the use of the CSM by Mr Lapthorn was outside his authorised scope of practice and was potentially a risk to the patient.  I also note that as a consequence he completed a clinical education program which the QAS, in my view, appropriately concluded was the correct response to Mr Lapthorn’s conduct.  The gap in his clinical knowledge has been addressed and that he now properly concedes he should not have used the procedure.
2.	Stocking drug kit with additional fentanyl.  
[104]	It is not disputed that at the relevant time (during the second half of December 2013) the QAS drug management code of practice authorised QAS officers to be in possession of two ampoules of fentanyl as part of their drug kit.  The code has subsequently been changed to permit possession of five ampoules.
[105]	It is not in dispute that Mr Lapthorn did sign out and carry, on a number of occasions, more than two ampoules.  This was revealed by Adam Flory during a drug audit when he was officer in charge at Kingaroy.  It is also in evidence and not disputed that other paramedics also signed out more than two ampoules.  
[106]	Mr Lapthorn explained in evidence that he (and other paramedics) found that two ampoules of fentanyl were often not enough in any particular shift.  Fentanyl was used for pain relief if a patient was allergic to morphine.  It was also used for paediatric patients who feared needles and for  cardiogenic chest pain because it was less likely to cause nausea than morphine.  He said problems often arose where he had used his two ampoules and then at the end of a shift had a patient allergic to morphine.  He was spoken to by Mr Flory in December 2013 and told to adhere to the code of practice.
[107]	He said he complied with that request until the policy changed to permit five ampoules to be taken.  No evidence was provided to the contrary.  I accept Mr Lapthorn complied with the direction after he was spoken to. 
3.	Leaving the station against QAS policy
[108]	The allegations made about Mr Lapthorn leaving the station without authority are varied and the evidence presented by the HO witnesses about the allegation was at times inconsistent.
[109]	Mr Flory had given evidence in his affidavit that Mr Lapthorn lived about 10 minutes out of town.  When he was officer in charge, he had found out that Mr Lapthorn during a shift would drive home to cook dinner for his family and return to work.  He said Mr Lapthorn was issued with a caution.  In oral evidence Mr Flory clarified that the “caution” was that he told Mr Lapthorn not to do it again.
[110]	He said his concern was as Mr Lapthorn lived 10 minutes out of town there was a risk that the expected response time of 8.2 minutes for a code 1 job would not be met.
[111]	He conceded in cross-examination that he did not recall there ever being a case where a job was delayed because Mr Lapthorn had driven home.  He said that, to the best of his knowledge, after he instructed Mr Lapthorn not to go home during a shift he did not do it again.
[112]	Ms Curran said in her affidavit, “one of the biggest complaints about Mark is that he is always doing the shopping, so when he gets home he can cook dinner”.  In examination-in-chief she said, “he regularly takes shopping home”.  She had been with him lots of times when he took the shopping home to make lunch.
[113]	However, subsequently in her evidence she said that this “only occurred two or three times”.  This suggests that her affidavit evidence was exaggerated.
[114]	Mr Lapthorn in his affidavit evidence denied ever leaving work to cook dinner for his family.  He said he did go home on occasions to collect a meal but always had a partner with him and stayed in contact with the radio.
[115]	He said it was not uncommon practice to take meal breaks away from the station, for example, to eat in a local café if work loads permitted it.
[116]	In cross-examination, Mr Lapthorn said on occasions he had taken shopping home and had meals at home during a shift.  He said he was aware this had to be authorised and that he would in fact obtain permission not from the officer in charge but from operations support supervisors.  He said that those requests would be logged and there would be voice records available.
[117]	I find in relation to this issue that Mr Lapthorn did on occasions shop and go home during a shift.  I have no reason to reject his evidence that he got permission from operational support to do so.  I also note that there is no evidence of any adverse consequences from this conduct.
4.	Failure to complete administrative tasks
[118]	This allegation involved two issues:
a)	Failure to complete CART audits (clinical audit and review tool).
[119]	CART was a practice whereby paramedics would review other officers job reports to identify any issues or concerns with clinical practice.
[120]	It is clear on the evidence (and Mr Lapthorn concedes) that he was resistant to completing these audits.
[121]	Mr Flory’s evidence was that he spoke directly to Mr Lapthorn on two occasions to remind him to complete the audits.  He also sent a number of emails to Mr Lapthorn (and others) to remind them that they were to be completed.
[122]	He says that when Mr Lapthorn ultimately completed some audits, it was apparent that they were done in a perfunctory manner.
[123]	In oral evidence, Mr Lapthorn conceded that he was recalcitrant in completing the CART audits.  He explained that he did not agree that staff should be reviewing their peers at a station.
[124]	It is noted that the practice has since been phased out.
b)	Vehicle check forms
[125]	Mr Lapthorn also resisted completing vehicle check forms.  These forms were the paperwork to be completed following a vehicle check after a shift.  Mr Lapthorn concedes he did not complete the forms despite reminders from Mr Flory to do so.  He said in his affidavit that most paramedics at the station did not complete the check forms adequately.
[126]	He said that he did in fact always complete the actual vehicle check and reported any vehicle defects but resisted filling out the form because nobody else did.  He believed he was being singled out by Mr Flory in that regard.
Does Mr Lapthorn pose a risk?
[127]	At the time of the incident with the infant in June 2016 no disciplinary action had been taken against Mr Lapthorn in relation to any of the additional conduct referred to above.  In evidence Mr Flory conceded that none of the additional conduct would be conduct which would become subject to disciplinary action because, apart from the CSM, it was not clinical in nature.
[128]	Mr Lapthorn had undertaken a clinical development plan as a consequence of the use of the CSM.
[129]	Mr Lapthorn had been spoken to about taking excess fentanyl and traveling home and thereafter discontinued those practices.
[130]	His professional development plan (which every paramedic had and is not disciplinary in nature) did provide that there was room for improvement in his attention to administrative tasks.
[131]	The HO relies on a expert report of psychologist Lars Marsdon to support the argument that Mr Lapthorn exhibited such a pattern of non-compliant behaviour that he presents a risk of engaging in harmful clinical practice in the future.
[132]	I found Mr Marsdon’s report to be of no assistance in arriving at a conclusion about Mr Lapthorn’s conduct.
[133]	He was asked by the HO to provide an opinion, on the basis of material provided to him, on whether:
a)	Mr Lapthorn demonstrated behaviour which could be consistent with a disorder;
b)	If so, could he pose a risk if allowed to provide health care services;
c)	Whether Mark Lapthorn showed any insight and whether that impacted on the risk;
d)	What were Mr Lapthorn’s likelihood of reforming.
[134]	Mr Marsdon provided his report without meeting Mr Lapthorn.  He was given the affidavits filed by the HO and the transcript of interview.  Despite not having ever met Mr Lapthorn he felt able to comment (relying specifically on the statements of Mr Flory and Ms Curran), that Mr Lapthorn showed a “persistent pattern of rule violations, over confidence, entitlement and a disregard for QAS procedures and practices”.
[135]	He described Mr Lapthorn as having a resistance to correction from others and brazen overconfidence.
[136]	He concluded that Mr Lapthorn, “possessed many characteristics of narcissistic personally disorder” and that Mr Lapthorn, “is likely to have an overconfidence in his judgement and abilities as a paramedic, and a disregard for policy, procedures, peer expectations and  input related to his role”.  He says, “These characteristics will predispose him to make odd and caviller decisions regarding patient care”.  He concluded that patients are at a risk of “suffering serious psychological injury and perhaps even serious injury”.
[137]	He also said Mr Lapthorn’s noncompliance with administrative procedures will “impact the development of his skills, reduce the likelihood of learning from mistakes”.
[138]	The tribunal cannot accept these conclusions reached by Mr Marsdon when he had no contact at all with Mr Lapthorn and based his conclusion of the assumption of the accuracy of facts outlined in the statements of other persons.
[139]	The weakness in his conclusions was made clear in his evidence in cross-examination.  He conceded that the material he had read was insufficient to diagnose a narcissistic personality disorder.
[140]	He conceded that even on the material he read most elements of diagnostic criteria for narcissistic personality disorder, as recorded in the DSM V (including need for admiration, lack of empathy, envious of others) were not present.  He said his opinion was based on the evidence of Mr Lapthorn’s “overconfidence” in clinical judgement and that in coming to his conclusion he assumed the accuracy of statements made by Mistey Curran and Adam Flory in their statements.
[141]	As pointed out by counsel for Mr Lapthorn, Ms Curran’s evidence revealed a tendency to exaggeration in her written statement.  Mr Marsdon had relied on Ms Curran’s statement that she could “tell you lots of times he had issues with his work performance” and (referring to the CSM) “this is the sort of thing he does, he is very unorthodox in the way he treats and does really stupid things”.
[142]	In cross-examination, when asked to provide examples of these “unorthodox” and “really stupid things”, Ms Curran conceded that apart from the CSM and the incident with the infant, she could only recall two incidents where she thought his behaviour was “odd”.  One was a job where a female patient with bleach in her eyes was naked when they arrived.  Ms Curran was treating her and Mr Lapthorn came into the room with a blanket to cover her, which Ms Curran thought was unnecessary; the second involved a disagreement with her about drug administration in front of a patient.
[143]	Mr Marsdon had concluded based on what he had read that Mr Lapthorn had little insight into the concerns raised by others with respect to his clinical decision making and that he had no capacity for self-reflection with respect to the issues raised.
[144]	That conclusion is at odds with the evidence.  In relation to the two incidents involving clinical decisions (the infant and the CSM),  Mr Lapthorn’s evidence given in his interview and at the hearing displayed insight.  He recognised in hindsight he should not have examined the infant’s genitalia and will not repeat it. 
[145]	Likewise following the completion of the clinical development program, his evidence was that he would not use the CSM procedure because of the risk involved. In relation to the excess fentynol and going home during shifts, he stopped this conduct when told to.
[146]	In closing submissions, counsel for the HO, perhaps in recognition of its flaws, submitted that I did not need to rely on Dr Marsdon’s report and find a clinical psychological nature to Mr Lapthorn’s pattern of noncompliant behaviour.  It was submitted that even without expert evidence I could conclude that Mr Lapthorn exhibited a pattern of noncompliant behaviour over a significant period of time which was unchanged despite intervention by others.  Further, that in collectively considering the clinical incidents against the background of that behaviour I should conclude that there is a risk that Mr Lapthorn will engage in some form of unjustified clinical conduct which could be harmful.
[147]	I am unable to reach that conclusion.
[148]	The conduct relied on and the evidence about that conduct does not establish such a pattern of noncompliant behaviour, unchanged by intervention,  as to warrant concern for public safety.
[149]	There is no doubt that Mr Lapthorn did not comply with certain procedural tasks (CART, vehicle check).  He presented a management challenge for Mr Flory when he was OIC.  Mr Cramb did not have the same issues.
[150]	In contrast to the evidence of Adam Flory and Mistey Curran, Mr Cramb, who was OIC at the station when Mr Lapthorn was suspended, comments in his affidavit:
•	Mark is a little bit of a control freak…he likes to be in charge.
•	He has had no issues with Mark in the station.
•	When he asked Mark to do something, such as general station duties, he does do it eventually.
•	He has not noticed any incidents where Mark worked outside QAS protocols and was not aware of any complaints made by patients about him.
[151]	Counsel for the HO referred the Tribunal to the decision of the former Deputy President, Judge Horneman-Wren in the decision of Oglesby v Nursing and Midwifery Board of Australia [2014] QCAT 701, where his Honour said:
I am not of the view that it is necessary to be satisfied that certain conduct will be engaged in by a registered health practitioner before the reasonable belief can be held that the practitioner poses a risk to persons.
In my view, it is not even necessary to be satisfied that it is more probable than not that the practitioner will engage in some conduct in the future.
In my view, a reasonable belief may be held that a practitioner poses a serious risk to persons if, based upon evidence of past conduct, there is a real possibility that the practitioner will engage in conduct which could be harmful to persons. If the possibility of engaging in the conduct was so remote as to be fanciful, or the possible harm trivial, then I would not think that a belief could reasonably be held that the practitioner posed a serious risk to persons.
[152]	In that case, the tribunal was able to identify, based on past conduct, a real possibility of specific, potentially harmful conduct occurring in the future.
[153]	His Honour, in relation to other potential risks put forward by the Board in that case commented:
the Board’s submissions…[are] cast at such a level of abstraction that it would not support a reasonable belief that [the practitioner] posed a risk to persons.
[154]	In my view, the contentions by the HO in this case fall into the latter category.
[155]	The conduct referred to in these proceedings, being the clinical examination of the infant and the CMS in the context of his work performance history, in light of the insight displayed by Mr Lapthorn, does not support a finding of a real possibility that he will engage in some unidentified harmful clinical conduct in the future.
[156]	I am unable to be satisfied on reasonable grounds that he poses a serious risk and that an IPO is necessary to protect the public.
[157]	The decision to impose the IPO should be set aside and I order accordingly.
[158]	The parties are invited to make submissions concerning costs.