Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4) CaseBase | [2016] FCA 33 | BC201600372 MAIOCCHI v ROYAL AUSTRALIAN & NEW ZEALAND COLLEGE OF PSYCHIATRISTS (No 4) BC201600372 Unreported Judgments Federal Court of Australia · 397 Paragraphs Federal Court of Australia Griffiths J NSD 828 of 2012 5 February 2016 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4) [2016] FCA 33 Headnotes (CTH) Australian Human Rights Commission Act 1986 s 46PO (CTH) Evidence Act 1995 ss 136, 140 (NSW) Health Practitioner Regulation National Law s 139B(1)(a) (CTH) International Convention on the Elimination of All Forms of Racial Discrimination art 5 (CTH) Racial Discrimination Act 1975 ss 9, 9(1), 9(1A), 9(1A)(a), 18A, 18A(2) Barghouti v Transfield Pty Ltd [2002] FCA 666 ; (2012) 122 FCR 19; Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 ; (2014) 221 FCR 86; Lina Obieta v New South Wales Department of Education and Training [2007] FCA 86; Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission [1998] FCA 1650 ; (1998) 91 FCR 8; Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046; Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No 2) [2014] FCA 907; Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 Griffiths J. Introduction [1] This case involves serious allegations of racial discrimination under the Racial Discrimination Act 1975 (Cth) (the Act). The proceedings come before the Court pursuant to s 46PO of the Australian Human Rights Commission Act 1986 (Cth). The applicant, Dr Maiocchi, represented herself. When the proceedings were originally commenced, there were numerous respondents. The proceedings gave rise to several interlocutory applications and interlocutory judgments. In one of those interlocutory judgments (Maiocchi v Royal Australian & New Zealand College of Psychiatrists [2013] FCA 1046), Nicholas J summarily dismissed the proceedings in respect of some of the original respondents and ordered that Dr Maiocchi replead her claims against the then remaining respondents. [2] On 22 August 2014, Nicholas J refused Dr Maiocchi leave to file a proposed draft amended originating application and a further amended statement of claim (Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No 2) [2014] FCA 907). His Honour ordered that the proceedings against the remaining respondents be defined by, and limited to, the following statement of issues: Statement of Issues Page 2 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 1. Did the fifth respondent (Dr Wilson) contravene s 9 of the Racial Discrimination Act 1975 (Cth) (the RD Act) between March and May 2010 in connection with his supervision of the applicant (Dr Maiocchi) while she was on secondment to the Northside Clinic by unlawfully discriminating against Dr Maiocchi in relation to: (a) his preparation and adoption of a mid-term evaluation dated 23 March 2010 in relation to Dr Maiocchi; (b) his request for a remediation plan in relation to Dr Maiocchi; or (c) his allegations of unsatisfactory performance in relation to Dr Maiocchi’s work in his letter to the sixth respondent (Dr Jurd) dated 14 May 2010; based upon Dr Maiocchi’s race, descent or national or ethnic origin, and in circumstances where such acts had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life? 2. If the answer to 1 is yes, is the first respondent (RANZCP) vicariously liable for Dr Wilson’s contravention of s 9 of the RD Act? 3. What damages should be awarded to Dr Maiocchi by way of compensation for any of the alleged wrongful acts referred to in 1 which is found proven? 4. Did Dr Jurd contravene s 9 of the RD Act between April and May 2010 in connection with his supervision of Dr Maiocchi while she was on secondment to the Northside Clinic by unlawfully discriminating against Dr Maiocchi in relation to: (a) the preparation and adoption of the remediation plan dated 13 April 2010; (b) his alleged acceptance at face value, and without independent or critical evaluation, of the allegations of unsatisfactory performance in relation to Dr Maiocchi’s work in the letter from Dr Wilson to Dr Jurd dated 14 May 2010; (c) withdrawing or procuring the withdrawal of Dr Maiocchi’s clinical privileges; based upon Dr Maiocchi’s race, descent or national or ethnic origin, and in circumstances where such acts had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life? 5. If the answer to 4 is yes, is RANZCP vicariously liable for Dr Jurd’s contravention of s 9 of the RD Act? 6. If the answer to 4 is yes, is the seventh respondent (NSLHD) vicariously liable for Dr Jurd’s contravention of s 9 of the RD Act? 7. What damages should be awarded to Dr Maiocchi by way of compensation for any of the alleged wrongful acts referred to in 4 which is found proven? [3] The respondents who remained in the proceedings were the Royal Australian & New Zealand College of Psychiatrists (the College) (the first respondent); Dr Craig Wilson (the second respondent); Dr Stephen Jurd (the third respondent) and the State of New South Wales — Northern Sydney Local Health District (the fourth respondent). The third and fourth respondents had common legal representation. Broad overview of background facts [4] Before summarising the parties’ evidence relating to the Statement of Issues, which evidence was voluminous, it is desirable to provide a broad overview of the background facts. Many facts were uncontroversial but, as will emerge later in these reasons for judgment, others were keenly disputed. [5] Dr Maiocchi emigrated to Australia in April 1990 from Argentina, where she had qualified as a medical doctor in 1977 and as a medical specialist in radiation oncology in 1984. Dr Maiocchi became an Australian citizen in mid- 1993. She is now approximately 60 years of age. Spanish is her first language and she speaks that language with her husband at home, however, their two children have English as their first language. As will emerge, Dr Maiocchi’s English language communication skills are an important issue in the proceeding. [6] Dr Maiocchi obtained full registration as a medical doctor in Australia in 2004, having graduated as a doctor with the Australian Medical Council (AMC) in 2002. In mid-2004, Dr Maiocchi was admitted into a training program to train as a general practitioner. However, in March 2005 she decided that she preferred to train as a psychiatrist. Page 3 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 In April 2005 she was admitted to the College as a trainee in psychiatry. She also undertook a Master’s Degree in Psychiatry with the NSW Institute of Psychiatry. [7] The events which give rise to these proceedings generally occurred during the period March to May 2010, when Dr Maiocchi was working as part of her training as a registrar in psychiatry at the Northside Clinic in Greenwich, NSW By that time, she had successfully completed nine rotations as a psychiatry trainee. She took up her position at the Northside Clinic in January 2010. Her supervisor at the Clinic was Dr Wilson who is a qualified psychiatrist and who practises as a consultant psychiatrist at the Clinic. Dr Wilson is an approved supervisor by the College. [8] During the relevant period, Dr Jurd was the director of postgraduate training in psychiatry for the Northern Sydney Local Health District (NSLHD) and was also the director of training for the College. [9] Dr Maiocchi’s allegations of racial discrimination relate to certain conduct of both Dr Wilson and Dr Jurd during her period at the Northside Clinic. As noted above, those allegations are confined to matters set out in the Statement of Issues. In broad terms, the allegations against Dr Wilson (see [1] of the Statement of Issues) relate to his preparation of a report dated 23 March 2010 which was a mid-term evaluation assessment of Dr Maiocchi’s traineeship. Dr Wilson requested in that document that Dr Maiocchi be subject to a formal remediation plan. This request was made against the background of Dr Wilson’s dissatisfaction with various aspects of Dr Maiocchi’s traineeship. Dr Maiocchi alleges that Dr Wilson’s mid-term evaluation of her and his request that she be placed on a formal remediation plan was unlawful conduct contrary to s 9 of the Act because that conduct was based upon her national or ethnic origin and impeded her traineeship with the College. [10] Dr Maiocchi makes similar allegations against Dr Wilson arising from a letter dated 14 May 2010 (the letter of complaint) which Dr Wilson wrote and sent to Dr Jurd at the latter’s request. The letter of complaint set out various allegations by Dr Wilson of unsatisfactory performance by Dr Maiocchi in relation to her work at the Northside Clinic. The allegations are sufficiently described later in these reasons for judgment and, given their length, need not be set out here. [11] Dr Maiocchi’s allegations against Dr Jurd, which also relate to conduct which is claimed to be unlawful and in contravention of s 9, are set out in [4] of the Statement of Issues. In broad terms, Dr Maiocchi alleges that Dr Jurd unlawfully discriminated against her based upon her national or ethnic origin in relation to: (a) Dr Jurd’s preparation and adoption of a formal remediation plan dated 13 April 2010 in respect of Dr Maiocchi; (b) Dr Jurd’s alleged uncritical acceptance of Dr Wilson’s claims as set out in his letter of complaint regarding Dr Maiocchi’s work; and (c) Dr Jurd’s involvement in the withdrawal of Dr Maiocchi’s clinical privileges at Northside Clinic in May 2010. [12] Dr Maiocchi’s only allegation against the College is her claim that the College is vicariously liable for the acts of Dr Wilson and Dr Jurd under s 18A of the Act, which is raised in [2] and [5] of the Statement of Issues. [13] Each of the relevant respondents strongly denies Dr Maiocchi’s claims. Dr Wilson defended and explained his actions in respect of Dr Maiocchi by reference to his concerns regarding: (a) his perception that Dr Maiocchi was resistant to feedback; (b) Dr Maiocchi’s clinical performance at the Northside Clinic, which concerns he said were shared by other doctors and nursing staff; and (c) a series of incidents involving various patients at the Northside Clinic in which either Dr Wilson or other professionals regarded Dr Maiocchi’s clinical judgment to be unsatisfactory and not up to the expected standard of a trainee psychiatrist in her position. [14] With specific reference to the mid-term evaluation report which he prepared in March 2010, Dr Wilson said that its purpose was to ensure that Dr Maiocchi was aware of his concerns about her progress so that they could work together to address the relevant issues and have Dr Maiocchi successfully complete her traineeship. Dr Wilson said that the sole purpose of the document was to assist Dr Maiocchi by focussing her attention on her areas of weakness. He strongly denied that the document was based on Dr Maiocchi’s national or ethnic origins or migrant status. [15] Dr Wilson pointed to various events after the mid-term evaluation which he said were consistent with him trying to help Dr Maiocchi, including him meeting with Dr Jurd and Dr Bill Lyndon (the unit director at Northside Clinic) on 8 April 2010 to discuss the contents of the proposed remediation plan, continuing to supervise Dr Maiocchi in her traineeship, consulting with other professionals about Dr Maiocchi’s progress and providing feedback to her. [16] Dr Wilson gave detailed evidence regarding certain matters which occurred in relation to a patient known as BM, which events occurred in the period 7–11 May 2010 and which, he said, ultimately caused Dr Wilson to lose Page 4 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 confidence in Dr Maiocchi’s capacity to care for his patients because he believed she lacked core medical skills. Dr Wilson conveyed his concerns to Dr Lyndon and Dr Jurd, which led to Dr Maiocchi’s placement at Northside Clinic being withdrawn on 11 May 2010. At Dr Jurd’s request, Dr Wilson subsequently prepared the detailed letter of complaint in which he particularised his concerns regarding Dr Maiocchi. [17] In sum, Dr Wilson rejected the allegations made against him on the basis that his involvement in preparing the mid-term evaluation report, his requesting Dr Jurd to prepare a formal remediation plan for Dr Maiocchi and his letter of complaint did not constitute conduct which was based on Dr Maiocchi’s national or ethnic origin but were all solely based on his concerns regarding Dr Maiocchi’s professional performance and competency as a psychiatric registrar. [18] Dr Jurd’s response to the allegations made against him in [4] of the Statement of Issues may broadly be summarised as follows. First, as to the claims regarding Dr Jurd’s role in drafting and finalising the remediation plan: (a) the remediation plan was directed at improving Dr Maiocchi’s oral communication skills to a level that was required for a trainee in psychiatry, bearing in mind the importance of effective communication skills in that profession; (b) the proposals in the remediation plan that Dr Maiocchi continue to study English, particularly her spoken language skills, moderate her accent, as well as read “lowbrow magazines, thereby increasing fluency in local vernacular” were reasonable and appropriate in the context of the importance of communication skills in psychiatry and where Dr Jurd personally had observed that Dr Maiocchi’s language was at times difficult to understand, particularly in situations of heightened pressure or stress; and (c) these aspects of the remediation plan were not “based on” Dr Maiocchi’s race and, after the remediation plan was finalised, Dr Maiocchi indicated a preparedness to work on at least some matters in the plan which were intended to improve her communication skills. [19] Secondly, as to the complaint regarding Dr Jurd’s involvement in the decision on 11 May 2010 to withdraw Dr Maiocchi’s clinical privileges at the Northside Clinic, Dr Jurd said that this decision was made by him in consultation with other professionals regarding Dr Maiocchi’s clinical skills and it had nothing to do with her national or ethnic origins or migrant status. [20] Thirdly, as to Dr Maiocchi’s complaints concerning Dr Jurd’s evaluation of the letter of complaint, Dr Jurd emphasised that he received the letter at least three days after the decision was taken to withdraw Dr Maiocchi’s clinical privileges and there was no evidence that he uncritically accepted the matters raised by Dr Wilson in that letter. Dr Jurd drew attention to his vast experience and said he carefully considered Dr Wilson’s complaints and discussed them with other relevant personnel, including his superior Dr Michael Paton (the clinical director at Northside Clinic) before deciding that Dr Maiocchi should be the subject of a formal risk assessment and there be further investigation of the concerns about her clinical performance. For the duration of those processes Dr Jurd arranged for Dr Maiocchi to be placed on non-clinical duties at Macquarie Hospital. [21] The College’s position was that none of the conduct of which Dr Maiocchi complained as set out in the Statement of Issues constituted direct or indirect discrimination for the purposes of the Act and that, even if it did, the College was not vicariously liable under s 18A of the Act because neither Dr Wilson nor Dr Jurd were employees or agents of the College. The College also relied on the defence in s 18A(2) of the Act and claimed that it took all reasonable steps to prevent any discriminatory conduct. Dr Maiocchi’s evidence summarised [22] Dr Maiocchi gave her evidence in chief orally, in accordance with a direction given earlier in the proceedings by Nicholas J. Much of Dr Maiocchi’s oral evidence was read from a lengthy written document which she took with her into the witness box. She also read out parts of her written outline of opening. On several occasions Dr Maiocchi demonstrated that she had considerable difficulty understanding the difference between giving evidence and making a submission. This is perhaps understandable considering that Dr Maiocchi is not a lawyer. [23] It is convenient to describe the essence of Dr Maiocchi’s grievances by reference to her written complaint to the Australian Human Rights Commission (the Commission) in early January 2011. [24] In her written complaint to the Commission, Dr Maiocchi claimed that, prior to January 2010 when she started her rotation at the Northside Clinic, her communication skills and professional attitude with both patients and co- workers, as well as her capacity to accept feedback and to work as part of a team, had been assessed as meeting or exceeding the requirements to work as a medical doctor or a psychiatry registrar in Australia. In support of this claim, Dr Maiocchi pointed to the following matters concerning her communication skills: (a) the Occupational English Test for medicine which she passed in April 1991; Page 5 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 (b) her graduation with the AMC after an oral clinical examination in August 2002; (c) her completion of five successful terms as an intern in the public hospital system in NSW between January 2003 and January 2004; (d) her completion of five successful terms as a RMO1 in the public hospital system in NSW between January 2004 and January 2005; (e) her admission to the GP training program on 28 June 2004; (f) her admission as a trainee of the College in April 2005; (g) her successful completion of nine rotations as a psychiatry trainee up to January 2010; (h) her successful three year course in the Master’s Degree in Psychiatry; (i) her satisfactory completion of some specific College training requirements, including observed interviews, psychological therapies, successful assessment/management of ten people with a history of substance abuse etc, passing her written exam on 5 March 2010; (j) her successful completion of a job interview for the position of psychiatry registrar in June 2010; and (k) a reference letter dated 23 December 2010 from Dr Bernardi. [25] Dr Maiocchi complained that she was the victim of racial discrimination because she described it as “the most likely root cause for the behaviour of the actual persons involved”, and “that discrimination has been the basic motivation for the bullying and harassment I have been subjected to”. She particularised her complaint as one of discrimination based on race (ethnic origin and/or immigrant status). [26] In support of her complaint, Dr Maiocchi cited the following written documents: (a) the mid-term rotation report dated 23 March 2010 authored by Dr Wilson; (b) the remediation plan dated 13 April 2010 authored by Dr Jurd; and (c) the basic training certificate of completion dated 28 May 2010 prepared by Dr Wilson. [27] Dr Maiocchi complained that in these documents her communication skills and professional attitude were either directly attacked or directly deemed to be inadequate or, by implication, exposed her professional attitude as inadequate, with no justification. Dr Maiocchi submitted to the Commission that the only indication of the reason for the remediation plan and both evaluation documents was as follows (emphasis in original): 3.2.1 The fact that Dr Wilson believes that my English, while interviewing patients, must be similar to the stereotype for an uneducated Mexican speaker as it is often portrayed in the American cinema. It is supposed that I use the Spanish words “si” repeatedly, in Spanish, and hence I must include the word “yes” repeatedly in English, most unnecessarily and out of place. The reality is that I do not even speak Spanish in this way. I do not know how Dr Wilson has arrived to (sic) this idea about me and how Dr Jurd, who has had several conversations with me over the years has been able to support Dr Wilson’s belief. 3.2.2 The fact that Dr Jurd believes that South Americans are “pugnacious”, usually avoid hard work, call names (which is very common in Latin America in totally informal conversations), and they are too proud to stand feedback. Hence, the Remediation Plan appears to be consistent with Dr Jurd’s ideas of South Americans. [28] In her oral evidence in the Court, Dr Maiocchi said that she had spent a total of only seven weeks at the Northside Clinic from January 2010 onwards, yet she was found wanting in her communication skills and professional knowledge after having spent seven successful years working in Australian hospitals. She said that Dr Wilson’s mid-term rotation assessment dated 23 March 2010, which was completed after only four weekly supervisions and her having been barely two months at the Clinic (three weeks of which she was on study leave) could only be explained by prejudice. Dr Maiocchi said that this was supported by Dr Wilson’s remarks in his February 2011 interview with the Commission, where Dr Wilson is recorded as saying with reference to Dr Maiocchi that “nobody has ever needed highly specific guidance like make sure your shoes are tied”. [29] Dr Maiocchi said that Dr Wilson’s bias, which she believed had been influenced by input he had received from nursing staff, was evident in the mid-term rotation report he prepared. She said that his assessment of her was inconsistent with her prior achievements, including the assessment by the NSW Institute of Psychiatry. She said that Dr Wilson’s criticisms of her expression skills were inconsistent with the successful rotations she had completed in the period 2008–2010, as well as earlier assessments in which she was evaluated as either “above Page 6 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 expectation” or “meeting expectation”. She also drew attention to her basic training certificate signed 7 January 2010. [30] Dr Maiocchi emphasised that of her nine psychiatry rotations, she had passed all six which assessed patient interviewing prior to joining Northside Clinic on 18 January 2010, and there was no indication that there were issues with her English. She stated that all of her nine supervisors prior to Northside Clinic saw no reason why she should not continue to progress in her psychiatry training. Dr Maiocchi said that in March 2010 she was eligible to be admitted to the advanced training segment of her traineeship in psychiatry. She said that the requirements to be eligible for advanced training were described by the College in a document entitled “Link 55” and that she had to: (a) have 36 months fulltime basic training; (b) complete two required case histories; (c) satisfy all basic training requirement experiences; (d) have a current registration as a medical practitioner in Australia; (e) be of good standing with the relevant medical registration board or equivalent approved body; (f) be selected to enter the advanced training program by the director of advanced training; and (g) be appointed to an appropriate approved training post. [31] Dr Maiocchi said that she had to pass a written exam and clinical exam as part of the College’s Link 55 requirements. She had not passed the clinical exam, but she did pass the written exam on her third attempt. Dr Maiocchi added that she believed she was in the most favourable position to attempt the clinical examination as she had passed her written exam and that increased her chances of successfully passing the clinical exam. She explained that she wanted to have the rotation at Northside Clinic so that she could practise her presentation skills and improve them with the clinical exam in mind and that Northside Clinic had a good reputation in this area. [32] Dr Maiocchi explained that in 2007 she had completed the requirements of the NSW Institute of Psychiatry to obtain a Master’s Degree in Psychiatry, pending her written dissertation, which she ultimately completed in 2012. [33] Dr Maiocchi pointed to Dr Wilson’s statement in his interview with the Commission that Dr Maiocchi’s written English was better than her verbal English and her verbal expression was much better than her verbal comprehension. She said that Dr Wilson’s view of her English and communication was “highly biased and unsubstantiated”. [34] Dr Maiocchi said that she was being singled out when Dr Wilson presented her on 23 March 2010 with a document which described the expected daily tasks for a registrar in Unit 2 at Northside Clinic. She said that she believed that Dr Wilson’s prejudice was founded on her status as a migrant, based upon his statement in his Commission interview that “no doctor has ever needed that before”, referring to the written statement of duties. [35] Dr Maiocchi also said that the mid-term rotation report was biased because Dr Wilson’s assessment “of my communication skills contrast sharply with my ability to progress in the training to the level of being eligible to apply for the advanced training”. She said that Dr Wilson’s statement in that report that her communication skills in both expression and comprehension were “dramatically below the required level to practise psychiatry” was inconsistent with all her previous psychiatry rotation assessments. [36] Dr Maiocchi acknowledged that she had unsuccessfully attempted the written exam twice during her basic training but she emphasised that she ultimately passed on the third attempt which she sat in March 2010. [37] Dr Maiocchi complained that Dr Wilson had stopped her from completing her long psychiatry case, which involved her treating a patient at Royal North Shore Hospital (RNS Hospital). [38] As to Dr Wilson’s claim that Dr Maiocchi was unable to accept feedback, she emphasised that all her supervisors during the period 2005 to early 2010 had assessed her as meeting the relevant training objectives and that she had scored results of 3 (ie meeting expectation) from two of her nine supervisors, a score of 4 (ie above expectation) from five of her nine supervisors and the remaining two supervisors scored her at the level of 5 (ie exceptional). In contrast, Dr Wilson assessed her at a score of 1 (ie unsatisfactory) in respect of “attitude to supervision”, which contrasted with a score of 5 in respect of the same matter in the rotation Dr Maiocchi did immediately before she joined Northside Clinic. She described Dr Wilson’s assessment as “completely inconsistent and demonstrate (sic) his failures”. [39] Dr Maiocchi also emphasised that during her Master’s course with the Institute of Psychiatry, her ability to accept feedback was assessed as “excellent” in seven out of 11 assessments and as “good” in the remaining four assessments. She added that she was assessed positively in relation to matters such as her respect for her peers, accepting suggestions about her work, listening attentively to other group members and accepting decisions made by the group. Page 7 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [40] Dr Maiocchi then gave oral evidence in respect of each of the patient incidents which were raised by Dr Wilson in his letter of complaint. [41] By way of background relating to Dr Wilson’s stated concerns regarding Dr Maiocchi’s dealings with patient BM, Dr Maiocchi said that, as at 11 May 2010, she had attended at the Northside Clinic on 38 working days (with various days taken off for study leave, public holidays and sick leave because of a car accident on 10 March 2010, as well as stress leave). She said that in contrast with other trainees, Dr Wilson carried out a mid-term evaluation of her on 23 March 2010, which she said was two weeks in advance of other trainees and in circumstances where, by then, she had completed only four weekly one hour supervision sessions with Dr Wilson and had worked only on 27 days at the Clinic. [42] In relation to BM specifically, Dr Maiocchi said that she had admitted BM on 29 April 2010. On Friday morning 7 May 2010, Dr Wilson had seen BM by himself. Dr Maiocchi claimed that he left a note for her in the communication book along the lines of “nothing else needs to be done” in respect of BM and without mentioning any issue of delirium. She then said that over the following weekend Dr Wilson sent her a text inquiring about her written exam result, which she described as being “out of character for a supervisor but does not show any concern about the patient that Dr Wilson says that he left delirious”. She said that this was the first time in her seven years’ medical practice that a supervisor had left her a note in a communication book, which is generally used by nurses. Dr Maiocchi said that this was the first time that Dr Wilson had communicated with her through the communication book, that the book had subsequently been “discarded by Northside Clinic” and it was not available to be produced in evidence. As will shortly emerge, there is a dispute whether Dr Wilson ever left any instructions for Dr Maiocchi in the communication book. [43] Dr Maiocchi gave evidence regarding the medication which Dr Wilson prescribed for BM. On 3 May 2010 he ceased BM’s use of Risperidone and started her on an antipsychotic aripiprazole called Abilify. He also increased BM’s dose of the antidepressant Cymbalta from 60 mgs to 100 mgs a day. Dr Maiocchi said that the medical records indicated that blood samples had been taken from BM on the morning of Friday, 7 May 2010, shortly after BM had been reviewed by Dr Wilson. Dr Maiocchi said that she was not aware that blood samples had been taken and that she only became aware of the blood test results when she reviewed BM’s records on Monday, 10 May 2010. [44] Dr Maiocchi said that later in the afternoon of Friday, 7 May 2010, she arranged for further blood tests to be done on BM the following Monday. She said that she reviewed BM during the morning of Monday, 10 May 2010 and left a message for Dr Wilson on his phone. Dr Wilson returned her call in the early afternoon and instructed that BM have an MRI, which Dr Maiocchi organised at approximately 6 pm on that day. She said that in the late afternoon of 10 May 2010 she received the pathology test results from the blood samples taken from BM on 7 and 10 May 2010. Dr Maiocchi explained that there had been some change in the administrative protocol regarding the collection of pathology results at the Clinic which was not communicated to her during her study leave. She said that she personally collected the pathology results which came through as facsimiles and discussed the cessation of diuretics and fluid restrictions for BM with a nurse. Before she had a chance to talk to the patient personally, she said she saw Dr Wilson. She said that she told him about the pathology results and he said that he would talk to BM. Dr Maiocchi said that she had looked for BM in her room, but she was not there. [45] Dr Maiocchi addressed the allegations made in Dr Wilson’s letter of complaint relating to BM. As to the claim that she failed to notify Dr Wilson of the serious level of BM’s low sodium (which he described as a medical emergency), Dr Maiocchi maintained that she had told Dr Wilson of the result as soon as it was practically possible for her to do so. She added that there was no evidence that she failed to identify the seriousness of BM’s sodium result at 120 mmol/L on Friday, 7 May 2010 and 128 mmol/L on the following Monday. [46] Dr Maiocchi challenged Dr Wilson’s claim that BM had delirium. She said that there was no reference to that diagnosis in BM’s medical records, including in respect of Dr Wilson’s examination of BM on the morning of 7 May 2010. Dr Maiocchi also challenged Dr Wilson’s description of BM as having delirium by reference to the definition of delirium in DSM-IV-TR (a medical text entitled Diagnostic and Statistical Manual of Mental Disorders). She emphasised that BM had a sodium level of 131 mmol/L on her admission to the Clinic. She also pointed to the fact that BM’s referral letter by her GP referred to BM being admitted “for recent deterioration of depression and for review of medication”, which Dr Maiocchi described as psychiatric reasons and not medical reasons. She said that BM also used opiates on an almost daily basis and had done so for at least 90 days. [47] Dr Maiocchi noted that Dr Wilson had asked for blood tests to be done after he had examined BM during the morning of 7 May 2010 and that, according to the medical records, the nursing staff reported that, in the evening on that day, BM was “settled”, “pleasant” and chatting with nursing staff. She said that other entries in BM’s medical records revealed that she had no cognitive impairment and that she developed a transient episode of confusion overnight which was nevertheless not severe enough to need clinical attention. Dr Maiocchi concluded that it was unlikely that BM merited a diagnosis of delirium. She emphasised that Dr Wilson never recorded such a diagnosis in BM’s medical records at any time, including in his discharge letter. Dr Maiocchi said that Dr Wilson was being “deceitful” in his letter of complaint in suggesting that BM was suffering from delirium. Page 8 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [48] Dr Maiocchi gave detailed evidence relating to the condition called hyponatremia (which involves low sodium), and how hyponatremia can be classified at various states, including hypovolemic, hypervolemic or normal volemic. She explained that hyponatremic states were associated with sodium depletion and associated low blood pressure. She described BM’s medical history as pointing to normal volemic hypo-osmolar hyponatremia which was due to “inappropriate antidiuretic hormone triggered by psychotropic medication as the more likely working diagnosis”. She also explained that hyponatremia is considered acute when it develops within 48 hours of prior normal serum sodium concentration and that the condition is considered chronic if it develops slowly over more than 48 hours. I have not set out all of Dr Maiocchi’s oral evidence in respect of hyponatremia and have simply sought to highlight what appear to be the key relevant points. [49] Dr Maiocchi challenged Dr Wilson’s claim in his letter of complaint that Dr Maiocchi “did not realise a medical emergency had been narrowly avoided purely by chance”. In response, she said that the medical records made clear that she had recognised on 10 May 2010 that BM’s low sodium needed treatment and that she then directed what treatment was to be carried out. She also said that Dr Wilson’s medication for BM contributed to the improvement of BM’s sodium level, which corroborated a diagnosis of drug-induced hyponatremia. [50] Dr Maiocchi then addressed Dr Wilson’s claim that, during their supervision on 11 May 2010, he made a note of Dr Maiocchi’s response on 7 May 2010 to BM’s sodium level of 120 mmol/L, by attributing to her the comment that “it is just the limit for a consult”. While not disputing that a sodium level of 120 mmol/L meant that serious consideration should be given to transferring a patient to hospital or urgently obtaining a physician review, Dr Maiocchi questioned Dr Wilson’s interview statement to the Commission that he would be concerned if BM had a sodium level under 130 mmol/L in circumstances where, prior to her admission to the Northside Clinic, her reading had been 126/128 mmol/L. Dr Maiocchi gave the following evidence in criticising Dr Wilson’s statement: However, the only evidence that Dr Wilson has to support his allegations of lack of knowledge of the seriousness of sodium level of 120 millimole per litre is a written quotation documented by himself, without my knowledge at the time, from a supervision which was conducted thoroughly between him and myself, with no one else present. In addition, importantly, the quotation is provided with no context. However, the tangible evidence available — the medical records — show that in the medication records my treatment of the patient’s sodium level 128 millimole on 10 May is in accordance with knowledge of the treatment of low sodium. [51] Dr Maiocchi said that Dr Wilson’s allegations against her in respect of BM was consistent with his “biased perception” of her and that his assumptions about her knowledge and trustworthiness were “unreasonable”. Dr Maiocchi emphasised that her medical knowledge had not been doubted in any of the previous assessments of her as a psychiatry registrar. [52] Dr Maiocchi was critical of aspects of Dr Wilson’s treatment of BM, including claims that there was no evidence that he performed a diagnostic assessment for substance abuse disorder (in circumstances where BM had a history of excessive opioid consumption), no arrangements were made to address chronic pain on BM’s discharge from the Clinic and Dr Wilson failed to include in BM’s discharge letter BM’s apparent dose escalation of opioids, which required more frequent and intense monitoring. [53] As to Dr Wilson’s criticism of Dr Maiocchi’s failure to inform BM of the need to restrict fluids, Dr Maiocchi said that she “delegated” this to Dr Wilson at his request, but she also noted that Dr Wilson denied seeing Dr Maiocchi after 4.30 pm on Friday, 7 May 2010. [54] Dr Maiocchi described Dr Wilson’s behaviour as “deceptive” when he alleged that he had not seen her on the afternoon of 7 May 2010. As to Dr Wilson’s criticisms concerning Dr Maiocchi’s communication to nursing staff of the need to restrict BM’s fluids, Dr Maiocchi highlighted Dr Wilson’s interview evidence with the Commission which was to the effect that it was necessary not only for Dr Maiocchi to record that information in the patient’s written notes, but also for her to convey that information verbally to a nurse. Dr Maiocchi said that because she could not find BM later on 7 May 2010, she spoke to one of the nurses about the diuretic and told her that BM was in fluid restriction. Dr Maiocchi complained that this was the first time in her professional life that she had encountered someone such as Dr Wilson going out of his way to investigate an event at this level because he wanted it done differently. She said that this constituted discrimination and victimisation. [55] As to Dr Wilson’s criticism that she failed to indicate the amount of fluid restriction, Dr Maiocchi said that it was generally accepted that a patient’s daily urinary output is 1200 mL and that their daily oral fluid intake should be restricted to 750 mL. She said that the nursing staff would generally be expected to reduce the fluid intake to less than one litre and she assumed that nurses would understand that fluid restriction in a patient with no medical problems, such as BM, would be about 800 mL of free water in a 24 hour period, so she felt “comfortable” indicating fluid restriction for BM. Dr Maiocchi accused Dr Wilson of having a biased perception of her knowledge and skill and said that there was no objective basis for his criticism of her failure to specify the amount of fluid restriction. She said that her sudden dismissal on 11 May 2010, without warning, was a grave indicator of the stress she was placed under while working at the Clinic and the kind of relationship she had with Dr Wilson as her supervisor. Page 9 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [56] As to Dr Wilson’s claim that she failed to order a physician review of BM, Dr Maiocchi said that she arranged for that to occur following the supervision on Tuesday, 11 May 2010. [57] As to Dr Wilson’s claim that many of the initial concerns about Dr Maiocchi came from nursing staff, Dr Maiocchi said that this comment showed the “highly toxic environment” she was in, which caused her high levels of stress. She also drew attention to the fact that she had a car accident after a heated supervision with Dr Wilson, which accident was unrelated to any medical reason but was “directly related to the extraordinary psychological stress I was in at the time, which was a normal reaction to a very abnormal situation”. [58] Dr Maiocchi complained about Dr Wilson’s criticisms of her ability to practise medicine as recorded in his letter of complaint. She said that she was given no prior notice of these concerns. She also relied on Associate Professor Greenwood’s comments in his report, which were to the effect that there was no evidence that Dr Maiocchi’s actions created any risk or harm to BM and that Dr Wilson, as the consultant, had to take ultimate responsibility for the management of his patient. As noted below, this report was admitted into evidence only on a non-hearsay basis. I will describe the contents and evidentiary significance of the report in more detail below. [59] As to Dr Wilson’s complaint that Dr Maiocchi failed to chart BM’s medication on her admission to the clinic, Dr Maiocchi said that the medical records showed that all BM’s medication was charted, except for propranolol but she simply followed the list provided to her by the patient, which included a referral letter from her GP (but which did not include any reference to propranolol). Dr Maiocchi pointed to the fact that BM was herself a professional health worker and had explained all her medications to Dr Maiocchi on admission. Dr Maiocchi gave evidence that, having regard to BM’s difficulties in reporting and handing over her medications, as well as Dr Wilson’s difficulties reporting and monitoring his patient’s opioid use, neither BM nor Dr Wilson were “trustworthy about communicating medication use, which makes more likely medication charting misunderstandings”. Later in her evidence, Dr Maiocchi expressly denied that she told Dr Wilson that 120 mmol/L of sodium was simply the limit for a consultation. [60] Dr Maiocchi challenged Dr Wilson’s evidence given during his interview with the Commission on 7 February 2011 when he made reference to Dr Margaret Harper, a consultant at Northside Clinic, telling him that Dr Maiocchi did not know the difference between sodium and haemoglobin. This criticism was directed to Dr Maiocchi’s contact with patient SM. Dr Maiocchi said that given the fact that she had worked successfully for seven years in the NSW public health system and had passed multiple exams and supervisions, to believe that she did not know the distinction between those items indicated Dr Wilson’s bias against her. She emphasised that during his interview with the Commission in February 2011, Dr Wilson was recorded as saying that: Dr Maiocchi came to us on the basis that she was a fully qualified specialist physician in her own country and I think that her speciality was radiation/oncology so she really should have had a much higher level of medical knowledge. [61] Dr Maiocchi then addressed patient KS. [62] As to Dr Wilson’s concerns expressed in his letter of complaint regarding Dr Maiocchi’s interaction with KS, Dr Maiocchi said that, contrary to Dr Wilson’s letter, KS was 17 years old, not 19. Dr Maiocchi said that she admitted KS before Dr Maiocchi went on study leave approximately three weeks before the incident happened. Dr Maiocchi described KS on admission as a person who was “quiet, depressed and had suicidal thoughts”. She acknowledged that KS was in the intensive care unit (ICU) when she returned from study leave. Dr Maiocchi described the ICU as one where patients were more closely monitored and were prevented from leaving the area unnoticed, even though they were in the Clinic voluntarily. She said that at the relevant time KS was waiting for a bed back in the open ward area so that she could leave the ICU. [63] Dr Maiocchi confirmed that Dr Wilson asked her to interview KS. Dr Maiocchi acknowledged that she used the word “chubby” in speaking with KS even though this is not documented in KS’s medical records. She said that if Dr Wilson thought that there was an issue about that language he should have made an entry in the medical records. She also emphasised that no complaint was made by KS or her parents regarding the “chubby” incident. She described Dr Wilson’s description of KS’s reaction to her use of the term “chubby” as “a distorted perception of the situation”. She explained that that was because KS was not in the ICU as a category 4 person at high risk, but had been downgraded to category 3 and was waiting there to go back to the open ward. Dr Maiocchi also said that the medical records did not indicate that KS was not eating to the dangerous level described by Dr Wilson and that he was in effect suggesting that KS had anorexia nervosa. Dr Maiocchi explained why she considered that KS’s weight was in the normal range for a girl of her age and height and she attributed KS’s feeling of disgust about her weight to her depression. Dr Maiocchi relied upon Associate Professor Greenwood’s comments on the incident, where he said in his report that while patients with eating disorders may be sensitive to comments: … it would be too high a standard to hold a registrar or even a consultant to a professional standard of use of general language in front of the patient. [64] Dr Maiocchi then addressed patient KG. Page 10 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [65] As to Dr Wilson’s claim that Dr Maiocchi had failed to undertake a clinical assessment of KG on KG’s admission to the Clinic and failed accurately to chart KG’s medication, Dr Maiocchi said that she believed that her assessment was an accurate reflection of KG and what KG told her. She explained that KG had been waiting at reception for approximately two hours and that she was both tired and irritated when Dr Maiocchi admitted her. Dr Maiocchi challenged Dr Wilson’s questioning of her assessment of KG and described his criticisms as “horrendously incorrect”. Dr Maiocchi accused Dr Wilson of being biased in his comments concerning KG’s admission and said that notwithstanding that he personally reviewed KG the day after her admission he did not make any additional comments on her medical records or report any other perceived deficiencies. [66] Dr Maiocchi referred to Dr Wilson’s comments in his Commission interview that he had been told by KG that Dr Maiocchi had spent only five minutes with her “and didn’t listen to anything I said”. Dr Maiocchi said that time perceptions are subjective and there was no evidence that the time she spent with KG was inadequate. Dr Maiocchi also denied that she had failed to chart the appropriate medications. She said that she recorded what KG told her and that the GP’s referral letter did not set out KG’s medications. Dr Maiocchi said that she added to the medications the fact that patient KG was also taking Tegretol Cremona after Dr Wilson advised her of that following the admission. Dr Maiocchi was critical of the fact that Dr Wilson complained in his interview that Dr Maiocchi had not prescribed Pulmicort for KG’s asthma and that he had to add that a week later. Dr Maiocchi stated that she had detected signs of KG’s asthma and recommended that her asthma be reviewed, however, Dr Wilson ignored that in his discharge summary. [67] In response to Dr Wilson’s complaint that another patient (LB) had suffered a presyncopal episode after being given Seroquel immediate-release instead of Seroquel slow-release, Dr Maiocchi said there were no grounds for Dr Wilson to claim that she was unaware of the different formulations of that drug. Dr Maiocchi acknowledged that she had made an error in charting that particular product but she disputed that the relevant patient experienced an adverse effect due to the error of being given immediate-release Seroquel. [68] Finally, Dr Maiocchi challenged Dr Wilson’s claim in his letter of complaint that there had been “a multitude of concerns about Dr Maiocchi’s ability to practise medicine and perform her role as a psychiatry registrar at the clinic” which matters had been “documented and managed in several ways”. She denied that the Clinic implemented a system of “performance management” to improve her work. Dr Maiocchi agreed that she had met with Nurse Unit Manager (NUM) Renee Atkinson in late March 2010, but she said was not told about any “performance management”, nor was that referred to in her weekly meetings with Dr Lyndon and the NUM. [69] Dr Maiocchi then gave evidence concerning her dismissal from Northside Clinic and the withdrawal of her clinical privileges. She asserted that Dr Jurd had assessed her due to her condition as a migrant and probably because of “some prejudice about someone coming from South America”. She criticised the fact that she had no role in formulating the remediation plan and that the plan itself was “unfair, discriminatory and humiliating”. Dr Maiocchi described Dr Jurd’s conclusions regarding her clinical interviewing skills as “biased” and inconsistent with previous positive assessments of her skills in this area. She described those assessments. She stated that Dr Jurd’s assessment of her ability to integrate feedback from her supervisors was inconsistent with all the evaluations of her as a psychiatry registrar since 2005. She rejected Dr Jurd’s view that she was not progressing through her College training as expected. She criticised Dr Jurd’s reliance on the fact that she only passed her written exam at the third attempt. She stated that Dr Jurd simply accepted at face value the allegations made by Dr Wilson in his letter of complaint. [70] Dr Maiocchi gave evidence of the meeting with Dr Jurd on 11 May 2010, which she attended together with her “English coach”, Dr Ruth Wajnryb. She said that Dr Jurd’s announcement of her dismissal from the Clinic came to her as “unexpected and devastating”. She complained that Dr Jurd’s actions were flawed because he did not have relevant medical records available to him when he made the decisions which were adverse to her, nor did he follow procedures required by the College. [71] Dr Maiocchi complained that the risk assessment which was subsequently carried out in relation to her around 19 May 2010 was deficient and non-compliant with relevant management guidelines. Cross-examination of Dr Maiocchi [72] Dr Maiocchi was cross-examined at some length by Ms Horvath, who appeared for Dr Wilson. Dr Maiocchi acknowledged that some of her previous supervisors had recommended in her College mid-term and end-of-term rotation reports that she needed further to develop her English communication skills. She added, however, that none of them told her that lack of further improvement would stop her from achieving College Fellowship. Upon closer questioning, Dr Maiocchi then acknowledged that her first supervisor had told her that her level of English was not appropriate for a psychiatrist. [73] Dr Maiocchi further acknowledged under cross-examination that her supervisor at Wyong Hospital had noted in Dr Maiocchi’s rotation report dated 15 January 2008 that one of the areas needing development was her knowledge of basic sciences and psychopharmacology. Her supervisor (Dr Furst) also noted: Page 11 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 This trainee is performing below my expectations of a third year registrar & will require improved communication skills & knowledge base in order to practice in a safe manner without a higher level of supervision. [74] Dr Maiocchi further acknowledged that another of her supervisors, Dr Robyn Bradley, commented that her accent impaired her effective communication. [75] Another mid-term rotation report dated 22 October 2009 by Dr Robert Russell was also drawn to Dr Maiocchi’s attention and, in particular, the following comments in it: 1. Stress management — dealing with some colleagues who don’t share her values & attitudes. 2. Understandable ESL arises in some situations. Dr Maiocchi acknowledged that Dr Russell was her supervisor in the term immediately prior to her term at Northside Clinic. Dr Maiocchi commented that this was a mid-term evaluation and that she was preparing for her exams and was “really stressed because of my level of demand at work and study” (sic). She said that she regarded Dr Russell’s comments as supportive, unlike Dr Wilson’s mid-term evaluation, which she regarded as threatening her progress. [76] Dr Maiocchi rejected the proposition that the purpose of the 2010 remediation plan was to help her pass the term at Northside Clinic. She said it was based “in negative evaluation that it did not represent what I felt about myself” and that she was told that she was “the worst registrar ever”. [77] Dr Maiocchi explained that when she said that the College had objectively assessed her proficiency in English in 2009, she was referring to the fact that she had passed her two written case histories. She confirmed that one of the reasons why she wanted to go to the Northside Clinic was to work on her presentation skills, which is what she said Northside was known for. [78] Dr Maiocchi said that prior to joining Northside Clinic, in her previous rotations, she had attended mock presentations organised for the registrars which were supervised by a professor. On some of those occasions she was the presenter. She said that she practised making presentations in telephone conversations with her consultant while she was on call. Dr Maiocchi described her contact with consultants while she was working in the public system and said that generally such consultants were part-time and came in two and a half days a week. She said that she did not find the Northside Clinic to be different to the public health system. She added that even though the consultants were not present at Northside as often as was the case in the public system, she found that the telephone and emails were good ways to communicate. Ultimately, however, Dr Maiocchi accepted that, because the consultants at Northside often saw their patients early or late in the day, she did not see them as often as she saw consultants in the public system. I accept that evidence. [79] Although Dr Maiocchi said that she could not recollect Dr Wilson telling her at a supervision that she had misunderstood an exam question and had therefore done a poor answer, she recalled him suggesting how she might approach an exam question in a different fashion. She denied, however, saying to Dr Wilson that she knew what she was doing and did not require any further help from him. [80] After acknowledging that her study leave in February-March 2010 was an exhausting time, Dr Maiocchi confirmed that, on return to the Clinic on 8 March 2010, she participated in a supervision with Dr Wilson the following day. She reaffirmed her claim that it was in this supervision that Dr Wilson threatened her professional career and training. She explained that this was because he said then that she was “the most terrible registrar” and that he was organising or thinking about a remediation plan. When she was closely cross-examined on the latter point, Dr Maiocchi said that she had not kept a note of that supervision nor had she ever noted that Dr Wilson told her on 9 March 2010 that he was going to put her up for a remediation plan. Dr Maiocchi denied that she was confused between events which occurred on 9 and 23 March 2010, when she was given her mid-term assessment which contained the reference to the remediation plan. Dr Maiocchi also said she had no recollection of Dr Wilson telling her in the 9 March 2010 supervision that he was trying to help her improve her performance. [81] Dr Maiocchi recalled that the first time she made a note of Dr Wilson’s statement that she was the worst registrar that they had ever had at the Clinic was in her letter of complaint dated 8 August 2010 to the College, in which she complained of harassment. Dr Maiocchi rejected the suggestion that her memory of what Dr Wilson was saying was faulty. She said that it “was a great blow to me” and she could not forget it. The following exchange then occurred: And is it possible that the — as you haven’t made a — note or a written record of the conversation, that your memory may be faulty? — It may be faulty in the actual words, but it’s not faulty in how I felt because that afternoon I left Northside Clinic and I was not — I — I had lunch before I left, and I drive my car and I had an accident. I had all the medical tests to see Page 12 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 what happen (sic) and I have not been charged by the police because the people from ambulance, they describe to the police since that day, she did nothing. [82] This is the first of many examples of Dr Maiocchi’s tendency to reconstruct actual events based on her subjective emotional state, rather than give an objective and dispassionate recollection of the relevant event to the best of her recollection. Dr Maiocchi’s evidence was frequently given in a manner which reflected her subjective perception of what occurred and its effect upon her emotions and without particular attention to the details of her observations of what actually occurred. [83] Dr Maiocchi confirmed that her car accident occurred on 9 March 2010, and that she went to work on 10 March 2010 and was told to see a GP and get a medical certificate. She returned to work on 15 March 2010. Dr Maiocchi said that when she returned to work, she “was very stressed” (as she had been since 9 March 2010) and that was because the environment was no longer a place in which she felt comfortable or could succeed — she described it as “a toxic environment”. Dr Maiocchi confirmed, however, that she did not tell anyone at the time that she thought she was working in a toxic environment. [84] Dr Maiocchi was cross-examined on the pathology results for Dr Harper’s patient, SM. Dr Maiocchi accepted that she had made an error in reviewing the pathology results and confused the haemoglobin and sodium readings. She said this was because they appeared on the form in different places to what she had come to expect. Dr Maiocchi said that she had told Dr Harper about the error and that the readings were the opposite to what she first thought, namely SM’s sodium was normal but his haemoglobin was abnormal. Dr Maiocchi later clarified that her evidence was that she told Dr Harper on the phone that she had found a sodium level of 122 mmol/L, that they subsequently discussed it and found that Dr Maiocchi had made an error. The following day Dr Maiocchi wrote in SM’s medical records that the patient was well and a sodium level of 139 mmol/L was recorded. [85] In relation to the supervision on 16 March 2010 with Dr Wilson, after Dr Maiocchi’s return to work following her car accident, Dr Maiocchi said that she was “reasonably annoyed” with Dr Wilson’s questions about her health. She acknowledged that she did not make any note of her claim that Dr Wilson said that he was going to report her to the Medical Board if she had any disability. She ultimately accepted that Dr Wilson never did in fact report her to the Medical Board. There was then the following exchange (emphasis added): Do you accept that your memory of that event may well be flawed and that Dr Wilson, in fact, didn’t say he was going to report you to the medical board? — Still I remember the situation because I was really — and I think justified — feeling that I was threatened. I felt intimidated for the fact that he was telling me that he was looking for a reason to send me to the medical board — It just — ? — or that was my interpretation. [86] This provides a further example of Dr Maiocchi’s tendency to reconstruct events to accord with her personal emotional state and perceptions, rather than give an objective and dispassionate factual account. [87] Dr Maiocchi denied that she ever told Dr Wilson that she could make a list of his mistakes because he also made mistakes. She denied saying to Dr Wilson that the only consultant on the ward whom she thought was any good was Dr Meagher. She accepted, however, that she probably said to Dr Wilson that although she thought he had been a good consultant at the start of her rotation, she no longer thought that. [88] Dr Maiocchi was then cross-examined about patient KS. When asked to explain the difference between anorexia nervosa and anorexia in relation to KS, Dr Maiocchi said (errors in original): She had been, the days before — I wasn’t in Northside Clinic so I just knew through the medical records — that she had deteriorated her depression and because of her deterioration of her depression, she was not wanting to eat much and that symptom is called anorexia. But doesn’t mean that that patient is anorexic. And she was just needed to be looked after to check that she was drinking enough, that she was eating enough. [89] It appeared that Dr Maiocchi agreed in cross-examination that KS was anorexic, but then she later seemed to retreat from this position. [90] Dr Maiocchi denied Dr Wilson’s recollection that KS had a look of “abject horror” after Dr Maiocchi described her as “chubby”. She confirmed, however, that she was stressed and upset during the interview with KS, which followed immediately after the supervision session with Dr Wilson. Dr Maiocchi explained the incident with KS as follows (errors in original): Shortly after you described KS as “chubby”, do you recall that Dr Wilson terminated the interview? — How can I say that I did not describe her as chubby? First of all, because I was not referring — as I said before, that I was not referring to the physical. I said it many, many times. I was so stressed that — I was composed and I talk properly and everything, but I had a lapse. I wanted to describe — I will say it another time, if you allow me. Someone when is depressed, have downcasted Page 13 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 face. And she was — when I saw her the first time that impacted me to see in a young person that expression. But impacted me when I was back that she was smiling. The first time she didn’t smile to me in any point. She was really depressed. When I came back, even when she had been obviously very bad, the — at the moment I saw her, she was smiley, she was relaxed, she looked good to me. But I was not referring to weight in any point of — or manner, and it was not that I told her “chubby”. In — in — in — in the list of wrapping up the assessment, I’m telling her all the things that I thought she had been achieving in my absence, and how I saw her getting better waiting for going down. It was just — I can’t understand how, for five years, I have been repeating this and I have been asked for this. So for five years I said exactly the same. HIS HONOUR: Your evidence — and you correct me if I’m wrong, but your evidence is that you accept that you used the word “chubby”? — I used the word, but not in the — with the intention that is presented, and the reaction of the patient — I wouldn’t miss it, because if you allow me, I am — I have — we all have some sort of talent. I am a very well — very good observer, that is why I am good — or I like to do psychodynamic therapy. I am a good observer, and I wouldn’t miss her face. [91] Dr Maiocchi then said that, in her discussion with Dr Wilson after the interview with KS, she recalled him using the word “flabbergasted” because it was a new word for her but that otherwise she could not reproduce their conversation word for word. She said, however, that she recalled being “treated as a different person because I was culturally different, and I could not understand a patient because I was culturally different”. Dr Maiocchi said that Dr Wilson was “telling me that culturally I was different and that that was his understanding of why I was using the word ‘chubby’”. [92] When it was put to Dr Maiocchi that Dr Wilson did not accuse her of being different, but said that perhaps it was a cultural difficulty to call someone chubby, Dr Maiocchi said that she did not remember that but when asked whether it was possible that this was what Dr Wilson precisely said, she answered “I don’t think so. Or maybe, yes, I don’t know”. She said that she could not recall one way or the other. [93] Dr Maiocchi confirmed that, in her written statement to the NSLHD in March 2011, she had stated that the word “chubby” was not a disparaging word. [94] At this point in her cross-examination, Dr Maiocchi disputed that she had said earlier in her cross-examination that KS was anorexic. As noted above, she appeared to back away from her earlier evidence on this issue and asserted that KS was anorexic, however, Dr Maiocchi was at pains to say that this required closer analysis in order to understand the implications of her saying to KS that she was “chubby”. There was the following exchange (errors in original): Dr Maiocchi, I think everyone can accept that there are shades of grey, but you agree, don’t you, that it is accurate to describe KS in March 2010 as anorexic, don’t you? — I agree with you because it’s the — it’s the only way I can answer your question, but if you remove the anorexia word from the context, so the anorexia word grows in — in importance and become an issue, that is not the case. One thing, and everyone would agree, that is what … … how it have been said all the time, Dr Maiocchi said, chubby, to an anorexic patient, what is the image that comes in that, a patient that is about to die, so thin that you wouldn’t say chubby to that person, and I would be really very — in very bad shape if I would do that, but that was not the case. It was a girl with a normal weight that just had had a depression deepen — a depression that had become worse for a — for a few days or for a week, that I wasn’t in there, and in during that week she manifest that she was not hungry and she stop eating as a regular as she used — used to do, and there was a concern that maybe she was not drinking enough either. [95] Dr Maiocchi said that she had no recollection of Dr Wilson asking her to transcribe KS’s blood tests onto the electroconvulsive therapy (ECT) paperwork. [96] Dr Maiocchi was asked whether she thought that by providing her with the duty statement on 23 March 2010, Dr Wilson was singling her out because she was a migrant. She responded: “At the time I was just wondering why, but I had no elements to think about that”. [97] Dr Maiocchi said she viewed the duty statement as an act of intimidation and another step taken by Dr Wilson to put her into a remediation. She denied that the document would help her do her job. Although Dr Maiocchi accepted that the purpose of a mid-term report was to help a trainee focus on areas of weakness before the end-of- term evaluation, she said she did not see Dr Wilson’s mid-term evaluation in that way because she could not find that it helped her and it was “just unacceptable” and “so negative”. [98] It was then put to Dr Maiocchi that even if she failed the basic training term at Northside Clinic she had accumulated 45 months of basic training in any event and the requirement to progress to advanced training was only 36 months. Dr Maiocchi responded by saying that if she failed the term at Northside Clinic “maybe is (sic) not just the right time to ask to be considered for the advanced training with the term failed”. She agreed, however, that Page 14 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 even if she had failed the term at Northside, she would not have needed to repeat that term at Northside, but would have had to do another term elsewhere because she said she needed to keep working and training in order to reach her Fellowship. [99] On numerous occasions, the Court reminded Dr Maiocchi of the need to provide responsive answers to questions. As noted above she displayed a tendency at times to describe events to reflect her subjective impressions or feelings at the time, rather than give an objective and non-judgmental account of the facts. Dr Maiocchi reconstructed some important events to advance her case, as is evident from the extracts set out above and below. [100] Dr Maiocchi was cross-examined in relation to her complaints dated 8 August 2010 and 2 November 2010 to the College, and 4 January 2011 to the Commission. She confirmed that during the interview she had with the NSLHD on 31 March 2011 she made no claim that Dr Wilson had told her on 9 March 2010 that she was going to have a remediation. When Dr Maiocchi was pressed that Dr Wilson did not in fact say that to her on 9 March, she responded by saying that her “truthful answer of what I can emotionally recall is that something on the lines that I was — my career was on threaten (sic) was said” and that this “can be translated into, you are going to be in a remedial”. This is a strong example of the way in which Dr Maiocchi’s recollection of some key events was highly subjective and driven by her personal emotions. [101] Dr Maiocchi was cross-examined in relation to the medication chart for patient LB, who was administered Seroquel immediate-release rather than the slow-release version. Dr Maiocchi accepted that she had mischarted the product. However, she disputed Dr Wilson’s description of the patient as being presyncopal. [102] Dr Maiocchi was then cross-examined about KG and the entries she had made in the mental state examination section of this patient’s medical records. She said she had no recollection of Dr Wilson telling her the day after she admitted KG that he was surprised that she had found KG to be relatively stable on admission because he had found her to be quite different the following day and did not think that her condition would have changed so greatly overnight. Dr Maiocchi was cross-examined about the interview she gave to the NSLHD in March 2011, where she stated that she should have included more in the mental state examination part of the record in respect of KG. [103] Dr Maiocchi confirmed that from 13 April until 10 May 2010 she continued to have weekly supervision sessions with Dr Wilson. She accepted that she had no complaints about Dr Wilson during that period. She acknowledged that Dr Wilson sent her a text over the weekend of 8–9 May 2010 inquiring about her exam results and also sent her a congratulatory text. She said that she was surprised “because weekends are very precious when you worked so hard the whole — the whole week”. [104] Dr Maiocchi acknowledged that on 10 May 2010 Dr Wilson sent her an email with some feedback and that she was relieved that it was positive feedback. The email also made reference to Dr Harper having said that it was difficult to give Dr Maiocchi feedback, a comment which was directed to a problem in relation to Dr Harper’s patient, LG, for whom Dr Maiocchi had prescribed the drug Bactrim. Dr Harper made a note in the medical records that Dr Maiocchi should not order medication without prescribing the dose. Dr Maiocchi then gave some rather confusing evidence about the dosage for Bactrim. [105] Dr Maiocchi was then cross-examined about BM. She rejected the proposition that Dr Wilson’s notes of his examination of BM on the morning of 7 May 2010 indicated that BM had delirium. She said that the matters listed by Dr Wilson were inconsistent with that diagnosis because delirium was graver than the matters listed by Dr Wilson. She added that if Dr Wilson considered that BM was delirious, he should have had the patient transferred to a clinical setting. [106] Dr Maiocchi was adamant that Dr Wilson had written in the communication book that nothing else needed to be done in respect of BM. She also denied that Dr Wilson’s reason for requesting an MRI was because he was concerned that BM had delirium. [107] Dr Maiocchi described the exchange with Dr Wilson when she saw him in the corridor outside BM’s room. She confirmed that he told her that he would talk to BM. She also acknowledged that she did not make an entry in BM’s medical notes to the effect that she had told Dr Wilson about the sodium result of 120 mmol/L, nor did she record anything in the notes about telling BM about the fluid restriction. She explained that she did not need to make such a note because she would tell the nurses verbally about the diuretic medication and to restrict BM’s fluids. Dr Maiocchi also accepted that she did not note the amount of the fluid restriction in BM’s medical notes. [108] Dr Maiocchi sought to explain why she had identified the amount of fluid restriction in respect of SM and not BM by reference to the fact that she had just started work at the Clinic when she saw SM. I found her explanation of the difference unpersuasive. [109] When Dr Maiocchi was asked in cross-examination whether she recalled saying to Dr Wilson at the supervision on 11 May 2010 that sodium of 120 mmol/L was “just the limit for a consult”, she said she had no such recollection. This is inconsistent with her oral evidence in chief on this matter in which she explicitly denied saying those words. Page 15 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [110] Dr Maiocchi was cross-examined about her complaint dated 3 January 2011 to the Commission. She complained that Dr Wilson had told her that she said “yes, yes, yes” and she explained this aspect of her complaint to the Commission. When it was put to Dr Maiocchi that Dr Wilson had never said anything to her about her race, Dr Maiocchi said “Yes, he did”. Significantly, when Dr Maiocchi was asked whether she could refer to any statement by Dr Wilson at any time in which he made any reference to her race or migrant status other than his statement that her description of KS as “chubby” might be due to a cultural difference, Dr Maiocchi said “no”. She then quickly added that she was concerned that the reason why Dr Wilson considered that she said “chubby” was racist. [111] It is revealing that Dr Maiocchi pointed to no other statement of Dr Wilson as grounding her complaint of racial discrimination other than his proposition that her use of the word “chubby” might indicate a cultural difference. Dr Maiocchi’s evidence on this topic during her cross-examination provides another example of her tendency to allow her subjective and emotional perceptions to dominate her recollection of events. [112] At the end of her cross-examination by Ms Horvath and, in effect, in re-examination, Dr Maiocchi expanded upon some of her earlier answers. In respect of patient LB and the allegation that Dr Maiocchi did not know the difference between immediate and slow-release Seroquel, Dr Maiocchi said that while she accepted that she made an error, it was wrong to say that she did not know the difference. She also added that even though she made an error there was no incident because the patient’s condition did not change. [113] Dr Maiocchi then expanded on her evidence in respect of the drug Bactrim and Dr Harper’s claim that Dr Maiocchi had given the patient LG a double dose. Dr Maiocchi’s evidence on this topic was still rather confusing, as is reflected in the following extract (errors in original): My point is that also is not ideal to put Bactrim only. The fact that I didn’t put DS, the DS is not double the dose and I never put it on the other way but anyway, by putting Bactrim, the only Bactrim that the pharmacy could provide to the unit was Bactrim DS. [114] Dr Maiocchi was then cross-examined by Mr McLeod, who appeared for Dr Jurd and the State of New South Wales — NSLHD. [115] Dr Maiocchi confirmed that she sat the written exam for a third time in March 2010 and she obtained her results in early May 2010. She confirmed that Dr Jurd sent her a text message on about 7 May 2010 enquiring about her exam results. She said that it was a “terrible surprise” to receive his text because it was uncharacteristic for him to contact her in this way and at this time, given their relationship since 2007, and “uncharacteristic for the situation I was having in Northside Clinic”. [116] Dr Maiocchi confirmed that Dr Lyndon, the unit director at the Clinic, was familiar with her work as a psychiatrist trainee. She confirmed that she respected Dr Lyndon in the first half of 2010. [117] Dr Maiocchi was then cross-examined at some length regarding the meeting she had with Dr Jurd on 13 April 2010 concerning the remediation plan. She confirmed that Dr Jurd said that he had heard many concerns from Dr Wilson about her progress and that he had considered the mid-rotation report dated 23 March 2010. She also confirmed that Dr Jurd told her at the meeting that he had concerns about her use of the word “chubby” to KS and that he told her that “you don’t say ‘fatso’” to a patient. Dr Maiocchi stated that she was not happy that she had used that word, but that her use of the word did not “mean anything related with my culture or that in my culture we consider and go through with movements of how good is to be chubby or whatever else that have been said (sic)”. She said that she told Dr Jurd she used the word “chubby” with her own children when they were little and that it was not insulting. [118] On the issue of Dr Jurd’s use of the term “pugnacious”, Dr Maiocchi said: We got caught into the “fatso” situation. I was very upset with the “fatso” situation, and then he began with “pugnacious”, so I said, “I don’t know that word”, and he said, “What is this in your language?”. I said, “(foreign language spoken)”. He said, “Well, there you are. The people from your country are pugnacious, (foreign language spoken)”. That was what I got. That is why later on I got someone to go with me, because all that was too much for me. [119] That account of their exchange broadly accords with Dr Jurd’s own evidence (which is set out further below). [120] However, when it was put to Dr Maiocchi that Dr Jurd had indicated that he found it difficult giving her feedback because he thought she was pugnacious, Dr Maiocchi disagreed. She also rejected the proposition that she had held up her fist when he explained what he meant by pugnacious. [121] Dr Maiocchi initially agreed with the proposition that Dr Jurd had told her one way to describe KS would have been to say that she was looking healthier, but she then added that she did not think that he had in fact said that. I found Dr Maiocchi’s evidence on this matter to be rather confused. [122] The following exchange then occurred: Page 16 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 … And all I want you to do is focus on this question. I want to be very clear on it, at no point in that meeting did Dr Jurd refer to people of South American ethnicity generally as being pugnacious people, did he? — Phrase it like that, no. [123] This is a further example of Dr Maiocchi modifying her evidence in order to differentiate between her subjective and emotional perception of events and their objective reality. [124] Dr Maiocchi rejected various other propositions which were put to her regarding what was discussed at the meeting on 13 April 2010. She stated that they did not discuss the contents of the remediation plan but she was asked to sign one copy and retain another. She said that she had no other option but to sign the plan even though she did not accept it. She rejected the proposition that she told Dr Jurd that she did not need the remediation plan. She also rejected that Dr Jurd indicated to her that he was trying to help her progress and complete her rotation. She added that she wanted to finish the term and she still had hope that in some ways “my things were going to work out”. Dr Maiocchi then added that when she signed the remediation plan using a lengthier version of her normal signature it was intended as a gesture of rebellion on her part because she thought the plan was being imposed on her. [125] Dr Maiocchi accepted that Dr Jurd had recommended to her at some time, not at the 13 April 2010 meeting, that she read lowbrow magazines and that she told him that she was too busy at the time because she was studying for her exams. But she told him she would listen to cassettes while she was driving. She then added that she told Dr Jurd that she was listening at the time to Ulysses by James Joyce. [126] When asked whether she believed that Dr Jurd was trying to help her when he recommended that she be conscious of and moderate her accent, Dr Maiocchi said that it took time to moderate her accent and she was studying for her next exam. She then added that “it was a bad time to remember to help me”. Dr Maiocchi said that she considered that the requirements for the remediation plan were: over what it was needed for my level of training at the time where I was about to go through the next stage was only hindering my progress (sic). [127] Dr Maiocchi stated that she retained Dr Wajnryb in order to comply with the remediation plan and that she wanted Dr Wajnryb to help improve her spoken English. Dr Maiocchi was adamant that Dr Wajnryb accompanied her to the meeting on 11 May 2010, not as her English coach, but as a support person. [128] Dr Maiocchi was cross-examined on the contents of the clinical examination which she expected to sit. She confirmed that it had an observed clinical interview component which would involve her interviewing a real patient for about 50 minutes while being observed by two examiners in the room and that, upon completion, she would meet with the examiners and present the case to them. Dr Maiocchi confirmed that it was quite a demanding exam. She acknowledged that the second component of the clinical exam at that time was the observed structural clinical examination, which involved the trainee going to ten different stations where there was an actor playing the role of a patient and she would be scored on the quality of the approach she took to the patient. She confirmed that it was exclusively an oral exam which was demanding, and that she still had to pass both those components before she finished her basic training. [129] Dr Maiocchi was cross-examined in respect of the details of the meeting on 11 May 2010 at Dr Jurd’s office at Macquarie Hospital when she was told that her clinical privileges at the Clinic were withdrawn. She denied that Dr Wajnryb indicated at that meeting that part of the reason for her being there was to identify how she could assist Dr Maiocchi with communication skills and aid her progress. Dr Maiocchi said that the only reason why she was there was to be her support person. Dr Maiocchi accepted, however, that her English skills and particularly her oral communications skills were a significant topic at the 11 May 2010 meeting, notwithstanding that earlier in her evidence she had denied that her English was discussed at the meeting. She further explained that Dr Jurd had raised points about her English and that Dr Wajnryb “was responsive to his comments, but it was not an evaluation or direct evaluation or assessment of my English”. This is an example of the many occasions on which Dr Maiocchi misunderstood a question. [130] Dr Maiocchi was adamant that the use of the word “chubby” was never raised at the meeting on 11 May 2010 but then shortly thereafter she corrected that evidence and said that it was discussed but that was in relation to Dr Jurd correcting himself about the use of the word “fatso”. [131] There then followed the following exchange: Do you agree that at the 11 May 2010 meeting, you acknowledged that in the context of your cultural background, you question in a different way. Your mode of questioning is different to some other people? — Yes. I said so, and also I said that through the training I had changed and at the moment I was having the right questioning. I was trying to demonstrate to Page 17 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 Dr Jurd how I was improving from one point to another, and that he shouldn’t worry about what he was saying that he was worried about. I have been always too good trying to get a good outcome, trying to comply, try to — trying to go through. [132] Dr Maiocchi firmly rejected the proposition that, as at the meeting on 11 May 2010, she accepted that, for the purpose of communication in psychiatry, her oral communication skills needed improvement. She said that she always disagreed with the remediation plan. She confirmed however that Dr Wajnryb had been engaged by her to help her work on her oral communication skills and that was because she had the remediation plan and because “I cannot deny that I always can improve”. This answer is inconsistent with Dr Maiocchi’s earlier absolute rejection of this proposition. It is an example of a propensity by Dr Maiocchi to give inconsistent answers on some important matters. Dr Maiocchi confirmed that she knew as at 11 May 2010 that Dr Wajnryb could help her improve her oral communication skills because that was her job. [133] Dr Maiocchi was cross-examined on matters surrounding the risk assessment prepared by Dr Jurd on 19 May 2010. Dr Maiocchi said that she received a phone call from Dr Jurd and she told him how distressed she was and that he may have mentioned the risk assessment in that conversation. [134] Dr Maiocchi was cross-examined on aspects of her complaints to the Commission. Her attention was drawn to her claim that she had been offered no justification for what she claimed to be discrimination as manifested in various written documents. She responded by saying that it was an accurate claim in relation to the mid-term evaluation report and the remediation plan. She reluctantly acknowledged that Dr Jurd had given her some reasons for the remediation plan but she said that they were “based in very unfair opinions”. [135] It was then put to Dr Maiocchi that Dr Jurd never told her that he believed that South Americans usually avoid hard work, to which Dr Maiocchi responded: He didn’t say it, but stereotyping me in the remedial in that way. Seems like I was not working, seems that I was calling names, seems that I was threatening. [136] When it was squarely put to Dr Maiocchi that she was talking about her impression of Dr Jurd, she said that she was talking about how the remediation represented her as a stereotype. This is a further example of Dr Maiocchi’s evidence being influenced by her subjective interpretation and personal sensitivities, rather than providing an objective account of what actually happened. [137] When it was then put to Dr Maiocchi that Dr Jurd never suggested that South Americans are too proud to withstand feedback, she responded by saying (errors in original): Not in that words, but if you describe a person that you consider … pugnacious, and their pugnacious comes from that background and you describe that person — portrayed person like, “Lacy needs to be supervised for the … calling names,” that was not me. And I don’t know — in five years, I could not get out of me. That is stereotype that portrayed me as a person that I am not. [138] Dr Maiocchi’s attention was drawn to an email dated 12 May 2010 from Dr Wajrnyb to her in which Dr Wajrnyb wrote: However, my professional opinion is that at root this is mainly a cultural-linguistic problem that should have been dealt with much earlier; and perhaps would have been if you’d been given steady and considerate and appropriate feedback. [139] Finally, Dr Maiocchi agreed in cross-examination that in November 2011 she declined to attend a professional performance assessment in respect of her professional clinical performance notwithstanding that she was given warnings about the serious consequences if she failed to attend. She confirmed that the assessment was being conducted by the Medical Council of NSW She explained that she decided not to attend the performance assessment and that she wrote a letter to the Medical Council of NSW explaining her reasons. It was put to Dr Maiocchi that the performance assessment constituted a chance for her to satisfy her assessors that she was an appropriate person to resume her training as a psychiatrist. Dr Maiocchi did not provide a direct response to that question but indicated that she was frustrated with all the events that had occurred and that she had asked for time to respond to the complaints against her. [140] As is apparent from many of the extracts from the transcript and my comments above I did not find Dr Maiocchi to be a reliable witness. I do not doubt her honesty and the sincerity of her subjective beliefs but I consider that her oral evidence needs to be approached with considerable caution because: (a) her recollection of many important matters was coloured by her emotional interpretation of what had occurred; Page 18 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 (b) when pressed Dr Maiocchi frequently had to modify her evidence in chief; (c) Dr Maiocchi’s evidence frequently involved her reconstruction of events so as to advance her case; and (d) Dr Maiocchi had difficulty grasping the distinction between making a submission and giving objective and responsive evidence. [141] In the light of these problems with Dr Maiocchi’s evidence, I am unwilling to accept her version of disputed relevant events unless her evidence is supported by independent documentary or testimonial evidence. Moreover, I can indicate that, where Dr Maiocchi’s evidence of particular relevant events is different from that of Dr Wilson or Dr Jurd I have no hesitation in preferring their evidence to hers. Dr Maiocchi’s other evidence [142] Dr Maiocchi sought to tender a vast number of documents. Objections were taken to the admissibility of many of them. In order to save time and to ensure that the proceeding was finalised within the allocated time, the respondents agreed that the material upon which Dr Maiocchi sought to rely should generally be admitted provisionally, while noting the numerous objections to much of that evidence, most of it on the grounds of relevance, and that objections could be dealt with if and when Dr Maiocchi placed particular reliance on individual documents in her closing address. There were several exceptions to that course. For example, at the request of Ms Horvath, who appeared for Dr Wilson, the Court ruled that two statements which Dr Maiocchi had provided to the fourth respondent were admitted into evidence but only on a non-hearsay basis and a direction was made under s 136 of the Evidence Act 1995 (Cth) (Evidence Act). [143] It is appropriate to say a little more about one document upon which Dr Maiocchi placed heavy reliance, namely, a report dated 21 May 2012 by Associate Professor Jim Greenwood. This report was not prepared for the purpose of the proceeding. The report was objected to on the basis that it constituted hearsay. It was admitted into evidence strictly for a non-hearsay purpose, ie to demonstrate that the views expressed by Associate Professor Greenwood in that document were views which were held by him, and not for the purpose of establishing that those views were truthful or correct. A direction was made under s 136 of the Evidence Act as to the limited basis upon which the report was taken into evidence. [144] It appears that the report by Associate Professor Greenwood was requested by the Health Care Complaints Commission (the HCCC) in the context of its investigation of a complaint made to it by the North Sydney Central Coast Local Health Network on 26 November 2012 arising from Dr Maiocchi’s refusal to take part in the performance assessment which had been arranged by the Medical Council of NSW to take place on 9 December 2011. The purpose of that proposed assessment was to determine whether Dr Maiocchi was competent to have her clinical privileges restored. The complaint was that Dr Maiocchi was guilty of unsatisfactory professional conduct under s 139B(1)(a) of the Health Practitioner Regulation National Law (NSW) because of her refusal to participate in the performance assessment. The performance assessment was intended to assess Dr Maiocchi’s professional performance in circumstances where she was not in clinical practice at the time and against the background of the matters which had led to her privileges at the Northside Clinic being withdrawn. It is important to note that Associate Professor Greenwood’s report was not directed to Dr Maiocchi’s allegations of racial discrimination but rather was an independent report to the HCCC concerning many of the incidents at the Northside Clinic in the context, in effect, of professional disciplinary proceedings against her. [145] The HCCC asked Associate Professor Greenwood to review multiple documents relating to Dr Maiocchi’s care and treatment of patients at the Northside Clinic in 2010. Associate Professor Greenwood is an Associate Professor of Psychiatry at the University of New South Wales and has practised clinical psychiatry at several public and private hospitals. The matters upon which Associate Professor Greenwood was asked to opine relate to many of the same incidents which have figured in these proceedings. Relevantly, Associate Professor Greenwood’s views may be summarised as follows: • as to patient BM, Associate Professor Greenwood said that it “would be desirable that Dr Maiocchi notified Dr Wilson of the low sodium result”, however, he described it as “not a significant failing”; • it was “a failing” that Dr Maiocchi did not notify the need to restrict this patient’s fluids, however she intended to recheck the results and instruct the nursing staff and consequently delayed the notification. He added that it was a failing not to verbally notify the nursing staff but the process of rechecking the results was still underway; • as to ordering repeat blood tests, he opined that if Dr Wilson was concerned, he could and should have ordered the tests earlier than 13 May 2010 and that the “results indicated that there was no emergency”; • it was a matter for Dr Wilson to order a physician review; Page 19 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 • Associate Professor Greenwood said that it was not appropriate to separate Dr Maiocchi from Dr Wilson and that there was no evidence that Dr Maiocchi’s actions created any risk or harm to BM and Dr Wilson, as the consultant, had to take ultimate responsibility for the management of the patient; • as to Dr Maiocchi’s misreading of SM’s haemoglobin, Associate Professor Greenwood confirmed that it appeared that she had misinterpreted the haemoglobin result but he added that no significant adverse effect occurred. He added that a “minor mistake occurred and was recognized and corrected” and that he did not “think this justifies any great criticism”; • as to Dr Maiocchi’s use of the word “chubby” to KS, Associate Professor Greenwood said that she “may have made an inappropriate comment in front of the patient” and that Dr Maiocchi’s “primary and secondary language may have been a factor”, however, he said that it was “not a significant failing for this to have occurred and Dr Wilson could have taken remedial action if he thought harm could have occurred”. As set out at [63] above, Associate Professor Greenwood added that it would be too high a standard to hold a registrar or even a consultant to a professional standard of use of general language in front of a patient; • as to Dr Maiocchi’s medication management of LB and her prescribing immediate-release Seroquel, Associate Professor Greenwood described Dr Maiocchi’s misprescription as not being a significant error and that there was no evidence for him that this caused a presyncopal episode. He concluded that the error did not justify a complaint of “substandard professional performance”; • as to the Bactrim incident, Associate Professor Greenwood described the allegation as “trivial and of little consequence in the care and management of the patient” and that the only criticism was that the dosages were not fully written on the treatment sheet, which he described as “not greatly significant”; • as to Dr Maiocchi’s admission assessment of KG, Associate Professor Greenwood said that there was no evidence before him that the time taken for the assessment was inadequate and that he considered that the assessment was undertaken in a manner not significantly different from other admissions. He concluded that there did not appear to be any substance to the complaint in relation to the matter; • in response to a request that he comment on Dr Maiocchi’s communication skills, including the allegation that she was resistant to feedback, Associate Professor Greenwood stated that he had never met Dr Maiocchi but he accepted that several of Dr Maiocchi’s supervisors are reported to have expressed dissatisfaction with her communication skills. He declined to make any assessment of Dr Maiocchi’s ability to understand, accept criticism, make adjustments and improve; and • Associate Professor Greenwood’s concluding remarks were as follows: It is very clear that a working relationship between Dr Maiocchi and the Northern Sydney and Central Coast Area Mental health (sic) Service has broken down. They are unhappy dealing with her, and she is unhappy dealing with them. However, the level of complaints are not serious and do not warrant legal censure. It does appear that her style of practice does not suit the Northside Clinic style, and that she would be better placed elsewhere. She may not have achieved sufficient proficiency to qualify as a consultant psychiatrist at this stage of her training, but she appears to be performing within reasonable limits of a trainee at her stage of training. [146] I will have something further to say below about the limited weight which must be given in this proceeding to Associate Professor Greenwood’s report given the limited basis upon which it was taken into evidence. Respondents’ evidence summarised [147] The respondents relied upon affidavits of Professor Hopwood and Dr Samuels. Neither was required for cross-examination. In other words, their evidence was unchallenged. It is convenient to summarise their affidavit evidence as follows. Professor Hopwood [148] Professor Malcolm Hopwood is the Ramsay Healthcare Professor of Psychiatry at the University of Melbourne, Clinical Director of the Professorial Psychiatry Unit at the Albert Road Clinic in Melbourne and a Professorial Fellow at The Florey Institute of Neuroscience and Mental Health. He is the President-Elect and a board member of the College. Professor Hopwood, who was called as a witness by the College, swore an affidavit. He was not required for cross-examination. Page 20 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [149] Professor Hopwood described how during the period March to May 2010 the College’s training consisted of a minimum of three years’ basic training and two years’ advanced training. He explained that during their training, trainees worked in hospitals, health facilities, community health clinics and other approved institutions with children, families, adults and the elderly on a range of psychiatric problems. [150] Professor Hopwood explained that the training was conducted in accordance with the College’s Training and Assessment Regulations dated November 2003 (the Regulations), which contained various guidance notes for both supervisors and directors of training. He explained how a hospital or health service could become approved for training. [151] Professor Hopwood drew attention to reg 12.1, which required each approved training program to have a director of training, whose role was to: (a) be aware of the functioning of the clinical facilities involved in the program and to maintain contact with them such that modifications could be made if required; (b) ensure the training centres took responsibility for a trainee’s development; (c) approve each trainee’s rotations and training experiences; (d) ensure that there were clear lines of clinical responsibility from a trainee to the consultant at all times and that the required level of supervision was provided to a trainee; and (e) be responsible for a process of evaluation of the training program. [152] Professor Hopwood also described how supervisors were expected to demonstrate: (a) familiarity with the Regulations and the College’s other training requirements; (b) the ability to be supportive to trainees; (c) a commitment to satisfy the educational aims and objectives for the training rotation and monitor the content of supervision to a trainee; (d) the ability to encourage and facilitate a trainee’s professional development by reflecting constructively upon the work presented in the supervision; (e) the ability to identify problems that may arise in supervision in terms of structural issues, content issues and interpersonal issues; and (f) the ability to propose approaches to effectively resolve problems that may arise in supervision. [153] Professor Hopwood stated that the College had a zero tolerance stance on bullying and harassment in training and that it had, at the relevant time, a written policy on this subject. [154] Professor Hopwood said that the clinical practice of psychiatry requires a psychiatrist to communicate effectively with a patient using a mutually intelligible language and a vocabulary that is appropriate to the patient’s circumstances, including their cultural and educational background. Although Professor Hopwood said that he had never met Dr Maiocchi, he expressed the view that it was appropriate for a supervisor to assess and comment upon a trainee’s communication skills, including his or her English language. I accept all of Professor Hopwood’s unchallenged evidence. Dr Samuels [155] Dr Anthony Samuels was called by Dr Wilson as an independent expert. Dr Samuels is a consultant psychiatrist in private practice at St Leonards. He is the District Clinical Director at Murrumbidgee Mental Health in Wagga. He is also Associate Professor of Psychiatry at the University of New South Wales, Rural Clinical School, Wagga, where he coordinates the psychiatry teaching program. Dr Samuels was not required for cross- examination. [156] Dr Samuels prepared a report dated 2 December 2014, the relevant contents of which may be summarised as follows. [157] First, Dr Samuels described the core elements of the College’s training program in 2010, including the relevant regulatory requirements concerning basic training. Part of that basic training involved a trainee having to do two case histories of patients managed under supervision as well as a written examination which could be attempted at any time in the basic training period. The examination included an assessment of knowledge of the theoretical and scientific underpinning of psychiatry, as well as clinical and ethical issues. Dr Samuels explained that a trainee was eligible to sit the clinical examinations after 30 months’ accredited basic training, which included passing the written examination and also holding a current medical registration. Page 21 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [158] Dr Samuels explained the process of remediation as well as the relevant regulatory requirements for supervision. [159] Dr Samuels drew attention to Part 9 of the Regulations, which dealt with advanced training as part of what he described as the Generalist Stream Advanced Training or an Approved Program Advance Training, or a combination of the two. He also described Part 10 of the Regulations, which dealt with mandatory training experiences during advanced training. [160] Secondly, Dr Samuels described the role of a trainee’s supervisor by reference to the Regulations and various Links published by the College. [161] Thirdly, in describing the proficiency of English required by psychiatrists working in Australia in a multi- disciplinary setting in order to communicate with patients, colleagues, staff, carers and family members, Dr Samuels commented that although Dr Maiocchi had obtained certificates of completion from the NSW Institute of Languages in 1991, those certificates were not necessarily sufficient in regard to the practice of psychiatry. Dr Samuels’ evidence was as follows (emphasis in original): The understanding of a patient’s mental processes is almost entirely derived from a verbal interchange with the patient and/or carers and/or family members. Of course valuable information in regard to mental state can also be gleaned by observation and interpretation of body language and gestures. Often a determination in regard to whether or not particular patterns of thinking are aberrant or out of step with conventional ways of thinking or interpretation of events is judged by interviewing family members, carers or other members of the patient’s community. A psychiatrist has to make a judgement in regard to the structure and form of thinking that patients exhibit and often the diagnosis of formal thought disorder is quite subtle and one requires quite high level English language skills to determine that a patient’s thinking processes are unusual or disordered. Because psychiatrists have to deal with a range of patients of varying socio-economic backgrounds and educational level, an understanding of local vernacular, phraseology and being able to appraise the level of a patient’s intellectual functioning, are all important components of psychiatric assessment. A lot of psychiatric assessment is based on non-verbal observations and being able to understand the significance and meaning of body language in terms of eye contact or lack of eye contact, and gestures and mannerisms that could be construed as rude or threatening, require understanding and sensitivity across a wide range of cultural groups. There are also specific modes of communication and interaction that are unique to indigenous cultural groups. The fact that Dr Maiocchi did not seem to understand the significance of her remark about a patient being “chubby” may be a reflection of a lack of understanding (sic) some of these issues. [162] Dr Samuels stated that, based on the material he had reviewed, “issues of language, culture, as well as other factors may be impacting upon Dr Maiocchi’s communications”. [163] Fourthly, in responding to the question whether the 2010 remediation plan had the effect of preventing Dr Maiocchi’s progress and training towards becoming a Fellow of the College and preventing her from completing her final examination, Dr Samuels gave evidence to the following effect: (a) under the College’s Link 83, which dealt with remediation plans, a remediation plan was required where there is a failure satisfactorily to complete a rotation, or after two consecutive assessment failures; (b) remediation plans had to be for a minimum of three months; and (c) by definition, a remediation plan could impair Dr Maiocchi’s progress where the plan had to be for a minimum of three months, however, when the 2010 remediation plan was devised she still had another three months of supervised placement at Northside Clinic and it was therefore possible for her to comply with the remediation plan within that timeframe. [164] Fifthly, Dr Samuels concluded that the 2010 remediation plan was “entirely consistent with the College training program” and he stated that he regarded Dr Wilson and Dr Jurd as having acted in accordance with the relevant College requirements. [165] Sixthly, in responding to the question whether Dr Maiocchi’s treatment plan for BM met the standards to be expected of a fourth year psychiatric trainee, Dr Samuels said that he would expect a final year medical student or intern to recognise that a sodium level of 120 mmol/L reflected a severe hyponatraemia. He added that hyponatraemia is an extremely common and potentially life threatening problem in psychiatric patients and that, in his view, a fourth year psychiatric trainee should have some understanding of the condition, its management and when to seek help. [166] Finally, Dr Samuels described the practice in 2010 regarding study leave for trainees in psychiatry. [167] I accept all of Dr Samuel’s unchallenged evidence. Dr Wilson Page 22 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [168] As previously mentioned, Dr Craig Wilson was Dr Maiocchi’s training supervisor during the relevant period. Dr Wilson is a consultant psychiatrist at the Northside Clinic, where he treats private patients in the Mood Disorders Unit. He has been a consultant at Northside since 2009 and now works there exclusively. Dr Wilson was made a Fellow of the College in 2007. During some of his own training, Dr Wilson was supervised by Dr Jurd. [169] Dr Wilson, who gave his evidence in chief orally, stated that in 2010 there were two registrars at the Northside Clinic and that this had been the case for approximately 30 years. Dr Wilson described the differences between a registrar’s position at the Clinic and in the public health system. He said that patients at the Clinic are all voluntary and that they and their families tend to play a greater role in the medical treatment. He also emphasised that a registrar at the Clinic reported to multiple consultants whereas in the public health system the normal arrangement was for a registrar to work closely with one consultant. Dr Wilson said that another difference is that in the public health system a registrar will generally have the support of numerous junior doctors, whereas at the Clinic a registrar is required personally to undertake actions which could be passed onto junior doctors in the public system. This means that registrars in the Clinic have to use their own medical knowledge more often. [170] Dr Wilson described the regular Friday meetings at the Clinic between the registrars and the consulting psychiatrists. He described the meetings as “unique”. A registrar is expected to present to all the consulting psychiatrists in attendance the patients for which they have responsibility. The Clinic has a maximum number of 22 patients and Dr Wilson explained that each registrar would normally give presentations in respect of approximately 10 patients. He said that the meetings usually took up to about two hours and the emphasis is on the registrars having to make their presentations with precision and succinctness. The presentations are oral and normally made in the presence of at least one professor and eight or nine consulting psychiatrists. He said that this meant that the experience involved “high pressure” for the registrars and it provided good experience for their presentations in their clinical exams. [171] Dr Wilson described the role of a supervisor of a trainee psychiatrist as helping the trainee to meet the College’s requirements and helping the trainee adjust to the particular milieu and circumstances of the Northside Clinic. He explained that the unit director (who, in 2010, was Dr Bill Lyndon), had responsibility for setting a registrar’s duties. [172] Dr Wilson described how each Tuesday he set aside an hour or so as dedicated “supervision time” during which he would meet with his trainee to discuss relevant issues relating not only to their training, but also to their well-being (bearing in mind, he added, that under the Clinic’s arrangements, a trainee was on an on-call roster and might have to work out of hours). [173] Dr Wilson described his dealings with Dr Maiocchi, whom he first met in early January 2010 when she took up her position as registrar at the Clinic. He said that at their first meeting, which was relatively casual, Dr Maiocchi told him that she was keen to prepare for her clinical examinations. [174] Dr Wilson then described his first supervision session with Dr Maiocchi which involved sitting undisturbed in a private room to discuss Dr Maiocchi’s goals and how Dr Wilson could help her achieve those goals, particularly in passing her written and clinical examinations. Dr Wilson said that he suggested to Dr Maiocchi that she look at past examination questions and prepare answers, which he would then review. He said that this later occurred and that at one of their supervision sessions they reviewed her responses to previous exam questions. Dr Wilson explained that having reviewed her responses he told Dr Maiocchi that he did not think that she had a “handle” on one question and he suggested an alternative approach. He said that Dr Maiocchi responded to this feedback by saying that she disagreed with Dr Wilson’s own understanding of the question and that she considered her answer to be correct. Dr Wilson said that he formed the view that Dr Maiocchi was upset by the feedback she had received from him. He said that she seemed reluctant to accept feedback from a senior colleague. I accept that evidence. (In expressing that view and in making similar observations in respect of the evidence of Dr Wilson and Dr Jurd, I have taken into account the cross-examination of relevant parts of their evidence). [175] Dr Wilson said that Dr Maiocchi took study leave in February 2010 to prepare for her exams. He considered that she was then “struggling greatly to acclimatise” and he learned that she was having difficulties communicating with other psychiatrists. In particular, there were communication difficulties over the telephone and he was told that Dr Maiocchi did not understand some of the requests that were made of her. He also learned that there were concerns about her carrying out instructions relating to medication charts. Dr Wilson emphasised the importance of medication charts being accurate and up to date because they had particular expiry dates, which could impact upon the medication which was available to patients at particular times. He emphasised that it was the consulting psychiatrist and registrar who had responsibility for attending to the medication charts, not the unit director. [176] Dr Wilson said that he raised some of these concerns about Dr Maiocchi’s performance with her before she went on study leave. He said that he did so in a manner which accommodated the fact that he was aware that it was a stressful time for Dr Maiocchi and he wanted her to be in the best mental state so that she could pass the exams. Page 23 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [177] Dr Wilson then stated that he also raised his concerns about Dr Maiocchi with Dr Lyndon and that while Dr Maiocchi was on study leave other people expressed their own concerns about her to him. He said that he discussed these matters with Dr Jurd. Dr Wilson explained that he spoke to Dr Jurd because Dr Jurd was in effect his own supervisor. He said that he told Dr Jurd that there were significant issues and that steps needed to be taken to get Dr Maiocchi back on track. Dr Wilson could not recall whether he raised the possibility of a remediation plan in this discussion with Dr Jurd. [178] Dr Wilson gave evidence of the supervision he had with Dr Maiocchi on the Tuesday following her exam in early March 2010. He asked her how the exam went and, although he could not recall the precise details, he said he drew her attention to a number of matters which he considered she needed to address in her training. Dr Wilson said that in that meeting he did not raise with Dr Maiocchi the possibility of a remediation plan. Although Dr Wilson could not recall the precise terms of what was said at the meeting, he acknowledged that at some point, possibly not at that meeting, he told Dr Maiocchi that she was amongst the worst registrars who had ever been at the Clinic. He explained that he was of that view because he considered that Dr Maiocchi had significant difficulties and he was receiving a “torrent” of complaints from nursing staff, patients and other consulting psychiatrists who were unhappy with Dr Maiocchi’s work. He explained that he also took into account her rebuff of his attempts to be constructive in helping her with her training. I accept that evidence. [179] Dr Wilson said that he learned that Dr Maiocchi had been involved in a car accident in the week starting 9 March 2010 and that she had some time off work. He gave evidence of the supervision which was held shortly after her return to work the following week. He said that he raised the car accident with Dr Maiocchi and expressed his concern for her well-being (in the context of psychiatry being, he said, a challenging and stressful profession). Dr Wilson explained that he considered that his role as supervisor extended to counselling a trainee about personal matters, particularly if it could impact upon their professional work. He said that he was surprised that Dr Maiocchi herself did not raise the fact of the accident with him and that he had to ask her about it. He said that he asked her how she was. She had told him that she had had a period of memory loss. He said that this concerned him because it could impact upon her work and he asked her whether she needed more time-off. He said that his impression was that Dr Maiocchi saw his concerns about her health as inquisitorial rather than paternalistic as he had intended them to be. He said that he explained to Dr Maiocchi that he had to clarify whether or not she was in a fit state to do her job. Dr Maiocchi assured him that she was fine and was seeing her own doctor. He said Dr Maiocchi was not prepared to talk to him about the subject. Dr Wilson expressly denied saying to Dr Maiocchi that he had to know what her disability was so he could report her to the Medical Board. I accept that evidence. [180] Dr Wilson was taken to a handwritten note which he prepared after that particular supervision. He said that he probably wrote it 15 minutes or so afterwards. He was taken to a further note of the same meeting, which was a typed up and expanded version of his earlier handwritten note. The note generally accords with Dr Wilson’s evidence above. He explained that the reference in the document to Dr Maiocchi’s difficulties as a registrar was a reference to the fact that he considered her traineeship was not going well and that Dr Maiocchi was not functioning at the expected level. Dr Wilson confirmed that the quotation in his note that “I can make a list of your mistakes” was a direct quotation of what Dr Maiocchi told him in the course of their supervision. I accept that evidence. [181] Dr Wilson explained that after the supervision he and Dr Maiocchi visited patient KS. He explained that KS was a deeply troubled patient who was in the intensive care area of the Clinic, where she was being closely monitored. He said that KS was sitting on her bed in a small room, was very quiet and showed no reaction when they entered her room. He said that he had asked Dr Maiocchi to conduct the interview with KS because he wanted to observe her interviewing skills. Dr Wilson explained that he did not have concerns at that time that Dr Maiocchi was not in a fit state to conduct such an interview after their rather heated supervision. He recalled that Dr Maiocchi appeared composed when they saw KS. Dr Wilson also explained that KS had been restricting her food and fluid intake for several days (not having had any food on some days) and that he considered it was appropriate to describe her as “anorexic”, even though she did not have anorexia nervosa. Dr Wilson explained that KS was in the intensive care area because she was not eating or drinking enough and there were concerns that she was at a high risk of self-harm or suicide based upon her medical history. He said that KS had been in the Clinic for approximately one month but he considered that she was still at extreme risk. He said that he and Dr Maiocchi agreed that she would interview the patient while Dr Wilson took notes. I accept that evidence. [182] Dr Wilson explained that he thought that Dr Maiocchi was “reconnecting” with KS in circumstances where Dr Maiocchi had been absent on study leave for three weeks. He said that he observed Dr Maiocchi making eye contact with KS and, while gesticulating to the effect that KS had a round face, Dr Maiocchi told KS “You’re looking chubby”. Dr Wilson said that he saw KS’s eyes “go wide in horror” at this remark. Dr Wilson said that he was “flabbergasted”, particularly because KS thought that she was overweight and ugly and had body image problems. Dr Wilson described the effect of Dr Maiocchi’s remark to KS as “catastrophic”. He said that when he discussed the matter with Dr Maiocchi outside KS’s room, she said that the matter was trivial, was not an issue, and asked why was he making such a fuss. He said that he told her that using the word “chubby” in particular circumstances was similar to calling KS fat or “fatty”. He also said that he remarked to Dr Maiocchi words to the effect that “I don’t know Page 24 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 if this is a cultural difference or what it is, but that’s so not okay”. Dr Wilson explained that he made the reference to cultural difference because he was trying to understand how Dr Maiocchi could say what she did to KS. I accept that evidence. [183] Dr Wilson said that he typed up a note of a phone call he had with Dr Lyndon on that day. He also confirmed that another note he had made on 18 March 2010 was made shortly after he had had a conversation with Dr Russell, who had been Dr Maiocchi’s supervisor in her rotation immediately preceding that at Northside Clinic. Dr Wilson described Dr Russell as a “calm” person. He said that Dr Russell told him that Dr Maiocchi had failed two earlier exam attempts of which Dr Wilson was previously unaware. Dr Russell also told him that he considered that Dr Maiocchi faced some “cultural … challenges” and, in his opinion, may have had metabolic syndrome. [184] Dr Wilson was then taken to an electronic file note which he had created around 22 March 2010 after Dr Maiocchi had misunderstood an instruction from him. He had asked Dr Maiocchi to transfer relevant data to an ECT form. He said that when he told Dr Maiocchi of this request she responded by saying “I will order the blood test”, which displayed an error of understanding on her part. Dr Wilson said he made a note of the conversation immediately thereafter. He said that other parts of the note dealt with broader issues of concern that he had with Dr Maiocchi. Dr Wilson explained the risks of Dr Maiocchi having prescribed an immediate-release Seroquel, as opposed to the slow-release dosage, which resulted in the patient either fainting or going dizzy. He also explained the note he made regarding Dr Maiocchi having made a double entry for lithium on another patient’s medical chart, which exposed the patient to the risk of a double-dose of lithium (the risk never materialised). Dr Wilson’s note also records that nursing staff were avoiding Dr Maiocchi and dealing with the other registrar because of their lack of confidence in her. I accept that evidence. [185] Dr Wilson stated that he drafted a duty statement dated 23 March 2010 for Dr Maiocchi because she asked him for a detailed job description. He said he sent a draft of the document to Dr Lyndon before handing it to Dr Maiocchi and that, when he passed it over, she “was distinctly not impressed”. Dr Wilson confirmed that he discussed with Dr Maiocchi three areas in which he considered she required development. He also explained that the reference to a remediation plan was something which he believed would help Dr Maiocchi to get back on track and that he did not expect the knowledge of the plan to pass beyond the Clinic. Dr Wilson thought that it was on 23 March 2010 that he first raised with Dr Maiocchi the possibility of a remediation plan. I accept that evidence. [186] Dr Wilson’s evidence then focussed on patient KG. He confirmed that Dr Maiocchi admitted this patient on 29 March 2010. Dr Wilson had no recollection of personally examining KG on that day but he said that he was very familiar with this patient because she had been his outpatient for at least five years and he saw her on a weekly basis. Dr Wilson confirmed that when he read the admission notes the next day he was troubled by Dr Maiocchi’s entries in the section dealing with mental state examination. Dr Wilson said that, knowing the patient as well as he did, the description given by Dr Maiocchi of KG’s mental state was not correct. He said he was concerned that Dr Maiocchi had not properly assessed KG’s mental state. In particular, contrary to what was noted on the admission sheet, he said that the patient was not young looking, did not generally present as well groomed, normally had intense eye contact, was restless, normally had pressured speech and had little judgment or insight. Dr Wilson said he was concerned that Dr Maiocchi made no entry at all relating to KG’s risk. Dr Wilson confirmed that he subsequently discussed patient KG with Dr Maiocchi but he was not sure when. I accept that evidence. [187] Dr Wilson said that he sent a copy of his mid-term evaluation report on Dr Maiocchi to Dr Jurd. Dr Wilson explained that the mid-term evaluation would normally be a collaborative exercise but this was not the case with Dr Maiocchi because, based on their previous dealings, Dr Maiocchi had a “profound reticence” to accept feedback. Dr Wilson said that it was a College requirement that Dr Maiocchi forward a copy of the mid-term assessment to Dr Jurd, but she refused to do so. [188] Dr Wilson then gave evidence about a document dated 6 April 2010 which he sent to the NUM, Ms Renee Atkinson. He believed that he sent the document at the request of Dr Lyndon or Ms Atkinson herself. [189] Dr Wilson gave evidence of a meeting held at the Clinic on 8 April 2010 where he met with Dr Jurd and Dr Lyndon to discuss concerns relating to Dr Maiocchi. [190] Dr Wilson said that although he did not draft the remediation plan, he absolutely agreed with it. He said that he believed that the plan was achievable but Dr Maiocchi had to be willing to change and listen and follow any feedback she received. [191] Dr Wilson said that during April and early May 2010 he saw some signs of improvement in Dr Maiocchi but that he also received reports from nursing and other consulting psychiatrists that Dr Maiocchi was being “overcautious” and was avoiding having to make decisions. [192] Dr Wilson said that during this period both he and Dr Jurd devoted an unusual amount of time to Dr Maiocchi, as is reflected in various emails which passed between them. [193] Dr Wilson explained that he sent a text to Dr Maiocchi on 7 May 2010 enquiring about her written exam because he was her supervisor and believed that the exam result would be relevant to her future. [194] Dr Wilson then gave evidence relating to patient BM. He described this patient as a health professional and that she was intelligent. He said he had concerns about her risk of delirium, however, he acknowledged that there Page 25 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 was no reference to that in BM’s medical notes. He said that the notes did suggest a risk of delirium, particularly in circumstances where the patient had urinated in the lift in the middle of the night, mistaking it for a toilet. Dr Wilson explained that the notes he entered on BM’s medical chart were to instruct nursing staff and the registrar about her care and that particular items were asterisked as highlighting the need for action. Dr Wilson said that it was not his practice to use a communication book to convey instructions to Dr Maiocchi. Dr Wilson said he had no recollection of ever saying to Dr Maiocchi that there was nothing which needed to be done with this patient. I accept this evidence. [195] Dr Wilson explained that he asked for an MRI to be done because of BM’s confused state and the possibility of a brain haemorrhage. [196] Dr Wilson confirmed that he saw BM in the evening on 10 May 2010. He said he had just learned of BM’s sodium reading of 120 mmol/L as at Friday, 7 May 2010 and he was “rather shocked”. He said that he had never seen a sodium reading of that level in a person of BM’s age or demographic. He said that such a level could cause delirium or possible death. Dr Wilson also explained that the subsequent reading of 128 mmol/L for sodium on 10 May 2010 was trending towards normal (135–145 mmol/L). He remarked that Dr Maiocchi’s entries on the patient’s medical records were ambiguous and unclear because several of the figures had been changed by hand. Dr Wilson confirmed that Dr Maiocchi’s management plan of ceasing diuretics and reducing the patient’s fluid intake was appropriate but that, as BM’s consulting psychiatrist, he would have expected that he would have been consulted about such matters, particularly against the background of such a dangerous sodium reading as 120 mmol/L the previous Friday. Dr Wilson was also critical of the fact that Dr Maiocchi had not specified the limits of BM’s fluid intake. He said that it ought not to have been left to the nursing staff to guess what the limits were. Most particularly, however, Dr Wilson was critical of Dr Maiocchi’s reaction when they discussed the sodium reading of 120 mmol/L and her response was simply to say that that was the level to get a consultation, ie a physician to assess the patient. Dr Wilson said that this indicated to him that Dr Maiocchi did not have a proper appreciation of BM’s grave risk with a reading of that level. Dr Wilson confirmed that after his discussion with Dr Maiocchi he spoke to Dr Jurd and Dr Lyndon and expressed his concerns about Dr Maiocchi’s clinical judgment and that Dr Maiocchi did not understand the “near miss”. He said that he told Dr Jurd that he had lost confidence in Dr Maiocchi. I accept that evidence. [197] Dr Wilson then gave evidence concerning the letter of complaint which he wrote in response to Dr Jurd’s request that he document the difficulties he had with Dr Maiocchi. [198] When it was put to Dr Wilson whether Dr Maiocchi’s status as a migrant or Argentine had any role in his assessment of her, he said “absolutely none”. I accept this evidence. Cross-examination of Dr Wilson [199] Dr Wilson was cross-examined by Mr McLeod, Mr Knowles (who appeared for the College) and, at greater length, by Dr Maiocchi. [200] Dr Wilson confirmed that BM’s sodium reading was one of the reasons why he lost confidence in Dr Maiocchi, as recorded in the email he received from Dr Lyndon on 11 May 2010. Dr Wilson added, however, that it was Dr Maiocchi’s lack of comprehension of the gravity of the low sodium reading, together with other feedback from other doctors, which weighed upon him. He explained again that the sodium incident was a near miss and that Dr Maiocchi should have learned from it. [201] During cross-examination by Mr Knowles, Dr Wilson gave evidence regarding his relationship with the College, his knowledge of College policies and protocols and his acceptance of the proposition that the requirement to provide equal opportunity included race and ethnic origin issues. It is not necessary to describe that evidence in detail. [202] Dr Maiocchi’s cross-examination of Dr Wilson tended to focus upon certain individual patients. In relation to BM, Dr Wilson was asked what was the basis for his oral evidence that BM had urinated in the lift, when there was no note to that effect in BM’s medical notes. Dr Wilson explained that he asked the nursing staff about BM’s condition on the relevant night and he believed that he was told that she had urinated in the lift. I accept this evidence. [203] Dr Wilson was then taken to the definition of delirium in the DSM-IV text and was asked how he would diagnose delirium. Dr Wilson responded by saying that delirium included fluctuating levels of consciousness, confusion in higher order functions and interruptions to sleep. He said that he regarded the definition in DSM-IV as only one conceptual framework in identifying delirium. He confirmed that he believed that BM had delirium even if the criteria in the definition were not satisfied. He added that he regarded that definition as providing merely a guide. I accept Dr Wilson’s evidence. [204] It was then put to Dr Wilson that if he considered that BM was suffering from delirium he should have had her transferred to a hospital, a proposition which he rejected. He was not asked to explain why. Page 26 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [205] Dr Wilson was asked to describe the treatment or management plan he had for BM. He responded by saying that he asked for an increased observation level, involving observation twice daily, ordering midstream urine tests and an MRI and more frequent reviews by himself. [206] Dr Wilson was asked various questions by Dr Maiocchi as to whether he considered that BM had delirium on 8 May 2010. He responded by saying that it may well have been that BM was still delirious on 8 May 2010, but Dr Wilson was not able to take the matter further because he said he did not assess BM on that day. Dr Wilson confirmed, however, that he asked for BM to cease taking the aripiprazole Abilify after she had been taking it for approximately one week. He also confirmed that he decreased BM’s consumption of the antidepressant Cymbalta to 60 mgs per day. Dr Wilson confirmed that it was unlikely, but possible, that Cymbalta could produce decreasing sodium levels. He added, however, that BM already had low sodium levels before her admission to the Northside Clinic. Dr Wilson said that Cymbalta can cause a reduction in sodium and that it was possible that sodium could decrease further if the dose of Cymbalta was increased. Dr Wilson rejected the proposition, however, that Abilify could contribute to a decrease in sodium level, saying that, while it was “theoretically possible”, it was not commonly the case and he had never seen it in clinical practice. Dr Wilson stated that it was highly unlikely for BM’s sodium to drop as low as 120 mmol/L as a consequence of changing her medications. He also said that he did not consider that BM had chronic hyponatremia and that, having known BM for several years, her sodium was usually within the normal range. He added that a drop to a level of 120 mmol/L in a patient of BM’s age and demographic “is a far more drastic thing and not something that, I think, could be solely as a consequence of the change in medication”. I accept this evidence. [207] Dr Wilson was then cross-examined by Dr Maiocchi in respect of a table dealing with different levels of hyponatremia. Dr Wilson said that he was unable to apply the table to BM without the relevant data. He said that it was not known whether BM was hypovolemic and he was not in a position to determine whether BM fitted any of the conditions set out in the table. In particular, he emphasised that BM had not been assessed by a renal physician, which, he said, would be necessary in order to determine whether BM was hypovolemic. [208] Dr Wilson accepted that Dr Maiocchi did not see BM on 7 May 2010. He also confirmed that there was a communication book in the relevant unit of the Clinic. He added, however, that it was “extremely rare” for him to write in that book and that it was not the general mode of communication between him and a registrar. It was then put to Dr Wilson that he did write about BM to Dr Maiocchi in the communication book, but that the book was not currently available because it had been destroyed. Dr Wilson confirmed that he had no recollection of having written in the communication book about BM during the period 7–11 May 2010. I accept that evidence. [209] Dr Wilson stated that both he and Dr Maiocchi first because aware of BM’s sodium reading of 120 mmol/L on Monday, 10 May 2010, at which time they also saw the later blood tests which revealed a higher reading of 128 mmol/L. He added that if he had been made aware earlier of the reading of 120 mmol/L he would have immediately instructed the nursing staff to transfer BM to RNS Hospital for urgent assessment by a medical team. I accept this evidence. [210] Dr Wilson was cross-examined on those parts of his letter of complaint relating to BM. He accepted that someone other than Dr Maiocchi had ordered blood tests on the morning of Monday, 10 May 2010 and that, because Dr Maiocchi was unaware that those subsequent blood tests had been ordered, she could not be expected to call the pathology laboratory to request the results. He also acknowledged that Dr Maiocchi had ordered the earlier blood tests at 4 pm the previous Friday and that, like himself, she did not learn the results of either the Friday or Monday blood tests until later on the day of 10 May 2010. I accept this evidence. [211] Dr Wilson’s evidence relating to the significance of BM’s low sodium level and his assessment that Dr Maiocchi failed to appreciate the gravity of the matter is summarised in his following explanation: In our supervision session on the Tuesday, following both of us becoming aware of the sodium results of 120, which is the — the near miss, as I refer to it, with the possible sequelae seizures and cardiac complications, that it had then returned to 128, but the difficulty was that when I spoke with you about that, at the time, you did not appreciate the significance of that, which is why you told me, and I immediately wrote down the direct quotation: “This sodium of 120, it is just the limit for a consult.” A consult being a visit to the hospital by another physician at some other point in time, whereas it is not the limit for a consult. It is the point in time that one should recognise one is outside the red flags and transfer the patient. [212] I accept Dr Wilson’s evidence on this topic. I also accept his evidence of what Dr Maiocchi said at their supervision session on 11 May 2010, which appeared to reflected an inadequate understanding of the gravity of BM’s earlier condition on Friday, 7 May 2010. [213] Dr Wilson was cross-examined regarding KS. He agreed that he did not make any reference to Dr Maiocchi using the word “chubby” in KS’s medical notes. He also acknowledged that there is no contemporaneous note of the assessment of KS on 10 May 2010. [214] Dr Wilson was cross-examined on those parts of his letter of complaint to Dr Jurd relating to KS. In reference to his description in that letter of Dr Maiocchi telling “a suicidal, anorexic 19 year old patient with body image Page 27 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 disturbance, who was failing to eat (such that it was life threatening) that she looked ‘chubby’”, Dr Wilson confirmed that KS was in the ICU part of the Clinic when she was seen by Dr Maiocchi and himself. It was put to Dr Wilson that KS was not suicidal on that day, even though she was in the ICU area. Dr Wilson responded by saying that he recollected that there was no assessment of her risk on that day. He accepted, however, that he had lowered her risk level to category 3 and that she was waiting for a bed to become available so that she could transfer back to the ward from the ICU area. [215] Dr Wilson accepted that KS was 17 years old and not 19 as he stated in his letter of complaint. Dr Wilson also defended his use of the word “anorexic” on the basis that it refers to someone who is not eating. When asked to explain why he wrote in his letter of complaint that he considered that KS was in a life-threatening situation, Dr Wilson explained that although he felt that KS could return to the ward, it was nevertheless necessary to continue to provide services and observations to ensure KS’s safety. Because her illness was far from resolved, he considered that she needed to be kept in an acute psychiatric hospital on observation. Dr Wilson accepted that it was possible that as KS’s depression improved, her anorexia would also improve. He added that, having known KS a long time, he was aware that she also had body image disturbance. [216] Dr Wilson was then cross-examined about KS’s weight. He confirmed that she weighed 66 kgs on admission to the Clinic and her weight increased thereafter. [217] Dr Wilson confirmed that it was his recollection that, in discussing Dr Maiocchi’s use of the word “chubby” shortly after they saw KS, he said to her something along the lines of: “I do not know if it is a cultural thing, but using the word ‘chubby’ is a criticism”. He also accepted that because KS was on olanzapine, which encouraged people to eat more, that might have explained her weight gain. I accept Dr Wilson’s evidence regarding KS. [218] Dr Wilson was cross-examined about patient KG. Dr Wilson explained that on 30 March 2010 he made a note in KG’s medical record that she was “tangential+++”, which he explained was a shorthand notation of the severity of her elevated mood. In effect, he was noting that her elevated mood was very severe. [219] Dr Wilson was then cross-examined about Dr Harper’s dissatisfaction with Dr Maiocchi having misread the pathology results in respect of patient SM. Dr Wilson said that he had been told by Dr Harper that she believed that Dr Maiocchi was not aware of the difference between sodium and haemoglobin but that he was unaware whether that belief related to this particular patient. Dr Wilson accepted, however, that the course of action taken by Dr Maiocchi in respect of that patient in reducing the water restriction to 800 mL per day was appropriate in the case of a patient with a sodium reading of 122 mmol/L, but he added that the treatment should have been made by the consulting psychiatrist and not by the registrar alone. When it was put to Dr Wilson that Dr Maiocchi demonstrated that she knew how to manage low sodium by the plan she introduced for SM in March 2010, Dr Wilson said that Dr Maiocchi implemented the management plan “based on an incorrect result without discussing it first with a consultant”. I accept this evidence. [220] As is evident from the material above, I consider that Dr Wilson’s evidence should be accepted and, in particular, it is to be preferred where there is a dispute as to the facts between he and Dr Maiocchi. Dr Wilson came across as a witness who generally had a good memory and a sound recollection of events. Where he had no specific recollection, Dr Wilson did not hesitate to say so. In some instances his recollections were corroborated by relatively contemporaneous notes which he had prepared. This “paper trail” indicates that Dr Wilson was aware at the time of the significance of the relevant events and the need for a proper process to be followed in relation to them. Dr Wilson also spoke with several other persons about his concerns regarding Dr Maiocchi, which fortified his own assessment of her. [221] Even if it is the case that others might view Dr Wilson’s assessment of Dr Maiocchi as too harsh (as did Associate Professor Greenwood in his report), I am satisfied there was a reasonable basis for those concerns. Perhaps even more significantly, however, whatever view is taken regarding the soundness of those concerns, I unreservedly accept Dr Wilson’s evidence that his actions regarding Dr Maiocchi were not motivated by her ethnic or national origins. It bears repeating that it was never put to Dr Wilson in cross-examination that his oral evidence on this central issue was false. Dr Jurd [222] Dr Stephen Jurd is Director of Postgraduate Training Psychiatry for various area health services. He also conducts his own clinic two half-days a week at North Shore Private Hospital. He is based at Macquarie Hospital in North Ryde. [223] Dr Jurd (like Dr Maiocchi and Dr Wilson) gave his evidence in chief orally. He described his role as the College’s director of training, to whom trainees’ supervisors reported. He explained that he saw his role as supervising both trainees and their supervisors. He said that he would normally visit hospitals where trainees were working once a year on average, but more often if there were problems. Dr Jurd confirmed that he personally had supervised Dr Wilson approximately 10–12 years ago when Dr Wilson himself was a trainee. He described Dr Wilson as a committed and competent supervisor. Dr Jurd said that he currently had approximately 100 people Page 28 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 under his control, 90 per cent of whom were trainees. He also stated that there was a wide ethnic diversity in this group. [224] Dr Jurd described the Northside Clinic and the public psychiatric hospital system as being in “some ways quite starkly different”. He explained that in the public sphere, a registrar does “much of the running” and private consultants tended to be more removed and concentrated on administrative matters. In the private sphere, however, administrative issues are generally managed by the private hospital and consultants tend to have a greater stake in their patients and be more involved. He said that he received constant feedback that placements at Northside Clinic were demanding. I accept that evidence. [225] Dr Jurd also said that he had five site co-ordinators of training who report to him with each site co-ordinator having responsibility for about 15–20 trainees. He said that Dr Dennis Ladd was the site director with responsibility for Northside Clinic in 2010. [226] Dr Jurd explained that he first met Dr Maiocchi in either 2006 or 2007. He said that he also had contact with Dr Maiocchi when she was under a remediation plan from May to November 2009 after having failed two written exams. He said Dr Maiocchi sat her written exam in March 2010 for the third time and passed. He said that it was a College requirement for a trainee to enter into a remediation plan if they failed an exam twice. [227] Dr Jurd said that Dr Harper expressed concerns to him about Dr Maiocchi’s oral and written communication skills. He also said that Dr Wilson told him in 2010 that Dr Maiocchi did not reach the appropriate standard for a trainee at her level. The particular areas of concern were deficiencies in Dr Maiocchi’s medical knowledge, as well as communication issues and her understanding of some verbal expressions. Dr Jurd made reference to the “chubby” incident and the difficulties about sodium levels. Dr Jurd said that Dr Wilson told him in a telephone conversation that Dr Maiocchi was attempting to give positive feedback to an anorexic patient when she used the word “chubby”. He said that that was a matter of significant concern to him and indicated that Dr Maiocchi may have been unable to deal with Australian English in a nuanced way when dealing with a distressed patient. Dr Jurd said that in February 2010 he was told by Dr Wilson that he was not sure that he could “make this work” with Dr Maiocchi. He said that he responded and advised Dr Wilson that, if there were serious concerns, there was the option of a further remediation plan but that he would need to have a sound basis for pursuing that course. I accept this evidence. [228] Dr Jurd confirmed that he received a copy of Dr Wilson’s mid-term rotation report for Dr Maiocchi. He explained that he drafted the second remediation plan which outlined a process for development for Dr Maiocchi. He said that in determining to proceed with a second remediation plan he took into account the feedback he had received from Dr Wilson, the fact that Dr Maiocchi had not yet passed the exams despite the earlier remediation plan and the mid-term rotation report. [229] Dr Jurd said that he met in April 2010 with Drs Lyndon and Wilson to discuss the draft second remediation plan. He explained that the reference in his notes of that meeting to “culturally vindictive” and “racist” were remarks which Dr Wilson claimed Dr Maiocchi had used in relation to Dr Wilson when they discussed the “chubby” incident. [230] Dr Jurd explained the importance of communication skills in psychiatry in the following terms: As psychiatrists, my belief is that we should be ultimate communicators. That we — ideally — we should know the difference between a relaxed silence and a tense one. That we should know intended and unintended double meanings of words. That we should be fluent as professionals in high-powered English, and that we should be fluent in the — in the language spoken by our often distressed and uneducated clientele. I accept that evidence. It is supported by that of Dr Samuels. [231] Dr Jurd confirmed that both Dr Maiocchi and he signed the remediation plan on 13 April 2010. He explained that he saw the purpose of the plan as addressing Dr Maiocchi’s training issues as identified by Dr Lyndon, Dr Wilson and himself, and which also reflected feedback received from other sources. He said that the identified outcome he sought to achieve with the plan was to enable Dr Maiocchi to finish the term successfully and become a psychiatrist. I accept that evidence. [232] Dr Jurd explained various aspects of the second remediation plan, including its stated goal of improving Dr Maiocchi’s verbal communication by moderating her accent. He explained that many patients have “narrower lives” and are less able to deal with foreign accents than other people. Dr Jurd then said that he personally had problems with Dr Maiocchi’s accent at times and that he felt that other people who were less well-educated would also experience difficulty. He cited as an example Dr Maiocchi saying the word “ventilate”, which he heard as “benilate”. He said that he noticed that she had difficulty differentiating between the letters “v” and “b”. Dr Jurd explained that his primary concerns related to Dr Maiocchi’s communication skills with patients, rather than to her dealings with other professionals or in describing particular medications. He said that his concern was that there could be miscommunication between Dr Maiocchi and patients and that patients could become frustrated and disengage from their dealings with Dr Maiocchi if she used language which was incomprehensible to them. I accept this evidence. Page 29 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [233] Dr Jurd explained that the recommendation in the plan that Dr Maiocchi read “lowbrow” magazines was intended to have her improve her understanding of “low Australian English” so that she was better able to deal with patients who had narrow vocabulary and used vernacular regularly. Dr Jurd said that he regarded Dr Maiocchi’s misuse of the word “chubby” and her reaction to Dr Wilson’s concerns on that matter as indicating that she was out of touch with Australian language and that this might improve if she had a greater exposure to such language through reading such magazines. I accept this evidence. [234] When Dr Jurd was asked whether his decision to require the second remediation plan was based on Dr Maiocchi’s race, migrant status or ethnicity Dr Jurd said that these matters played no role in his actions. I accept this evidence without reservation. [235] Dr Jurd described the meeting which he had with Dr Maiocchi on 13 April 2010 in relation to the remediation plan. Dr Jurd’s executive assistant, Ms Paula Britten, was also present. He said that he recalled that the meeting was long and tiring (it went for approximately two hours) and that Dr Maiocchi gave “little ground” concerning the issues which needed to be addressed in her training. He said that she resisted the remediation plan at the meeting. Dr Jurd confirmed that he discussed the “chubby” incident with Dr Maiocchi and told her that it was an inappropriate word, a proposition which he said she resisted. Dr Jurd then said that, in frustration, he said to Dr Maiocchi: “You called her ‘fatso’”. He told Dr Maiocchi that it would have been appropriate for her to have said something along the lines of: “You look heathier”. Dr Jurd also explained that, in further frustration, he described Dr Maiocchi in this meeting as “pugnacious”. He said he recalled the conversation well and that it was evident to him that when he first described her in that way, she did not understand the term. So, relying upon his “schoolboy Latin”, he used the word “pugno”, to which Dr Maiocchi responded by saying that she understood that word and she held up her fist. Dr Jurd explained that he used the word “pugnacious” in the context of the two hour meeting and that specific episode. Dr Jurd also confirmed that Ms Britten kept a note of the discussion. That note was not in evidence but was subsequently made available to Dr Maiocchi, who did not seek to tender it. I accept Dr Jurd’s evidence regarding the meeting on 13 April 2010. [236] Dr Jurd accepted that Dr Maiocchi was not involved in the preparation of the second remediation plan even though he acknowledged that, in principle, a trainee should be involved. Dr Jurd explained that he considered that there was no point consulting with Dr Maiocchi because he believed that she did not have any personal insight into her own issues. I accept that assessment. [237] Dr Jurd said that he considered that there was no alternative but to put in place a second remediation plan because the Clinic was unhappy with Dr Maiocchi’s performance and they needed to be convinced that things were being done to bring her up to an appropriate standard if she was to remain at the Clinic. Dr Jurd said that he was also trying to assist her progress in her traineeship. I accept that evidence. [238] Dr Jurd explained that the plan would have operated to the end of Dr Maiocchi’s rotation at the Clinic ie until July 2010. He said that he told Dr Maiocchi at their meeting on 13 April 2010 that they would meet again the following month to discuss her progress. [239] Dr Jurd then gave evidence of the events which occurred on 10 May 2010. He said that Dr Wilson contacted him around that time to discuss Dr Maiocchi and to advise that he could no longer work with her. Dr Wilson described to him the incident relating to BM’s sodium levels and how dissatisfied he was with Dr Maiocchi’s inadequate response to what he said was a medical emergency and required the patient’s hospitalisation. Dr Jurd also confirmed that he was getting similar feedback from Dr Lyndon. Dr Wilson said he believed that Dr Maiocchi would not be able to continue her traineeship at the Clinic. He said that the sodium issue was the “straw that broke the camel’s back”. [240] Dr Jurd described the meeting held on 11 May 2010, which was attended by Dr Maiocchi and Dr Wajnryb. Ms Britten was also there and took notes. He said that Dr Wajnryb described herself as a linguist and presented her card to Dr Jurd, saying that she was helping Dr Maiocchi with her English. Dr Jurd recalled commenting on the difficulties with Dr Maiocchi’s oral communication skills and her accent. At the meeting, Dr Wajnryb indicated that Dr Maiocchi had a “discoursal” issue in that her language was “not necessarily goal-directed, and that it might become a little bit more diffuse and less contained”. Dr Jurd recalled Dr Wajnryb saying that she believed that the use of the word “chubby” reflected the Hispanic word “gordito”, which means a little fat and she believed that it was “culturally understandable” that Dr Maiocchi would use that word. [241] Dr Jurd then expressly denied that Dr Maiocchi’s race, migrant status or national origin played any role in any of his decisions in respect of her, including his decision to withdraw her clinical privileges. I accept that evidence without reservation. [242] Dr Jurd then explained that he spoke with Dr Paton (to whom he reported). Dr Paton told him that a risk assessment would have to be done for Dr Maiocchi in circumstances where it was considered not safe for her to continue practising at the Clinic. Dr Jurd said that he agreed with Dr Paton’s view that such an assessment should be conducted if Dr Maiocchi was to continue to work in the public health system. [243] With respect to Dr Wilson’s letter of complaint, Dr Jurd said that he took the letter “very seriously” and that he was conscious of the gravity of the allegations being made against Dr Maiocchi. He said that he did not accept the Page 30 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 allegations uncritically and without personal evaluation. Dr Jurd reaffirmed that Dr Maiocchi’s race had nothing to do with his views. Again, I accept this evidence unreservedly. [244] Dr Jurd confirmed that around 19 May 2010 he completed the risk assessment. He explained that the basis for the risk assessment was the feedback he had received from Drs Lyndon and Wilson, together with Dr Wilson’s letter of complaint, Dr Maiocchi’s own comments and his personal experience of her, as well as the feedback from other doctors. Dr Jurd said that although the risk assessment reflected his concerns, it may well be that it was not extensive enough. Dr Jurd confirmed that although he had no specific recollection of speaking with Dr Maiocchi about the risk assessment, he believed that he had. [245] Finally, Dr Jurd reaffirmed that his ultimate decision to withdraw Dr Maiocchi’s clinical privileges on or around 19 May 2010 was not based on her race, ethnic origins or migrant status. Dr Jurd also denied that he ever said to Dr Maiocchi that all South Americans are pugnacious, usually avoid hard work, called names or are too proud to withstand feedback. I accept that evidence without reservation. As will shortly emerge, it was never put to Dr Jurd in cross-examination that his denials were false. Cross-examination of Dr Jurd [246] Dr Jurd was briefly cross-examined by Mr Knowles. Dr Jurd confirmed that he was not paid by the College, nor was it involved in his day to day psychiatry practice. He said that he did not consider himself to be an employee of the College. Dr Jurd confirmed that he consulted with Dr Paton before determining to remove Dr Maiocchi’s clinical privileges. Dr Jurd also confirmed that he was aware that copies of the College’s Regulations and policies were available on its website. He was taken to the College’s policy on bullying. He acknowledged that part of that policy dealt with equal opportunity and he said that he recognised that equal opportunity included not discriminating on the basis of ethnic background. [247] Dr Jurd said that he did not send a copy of the draft second remediation plan to the College. He acknowledged that cl 14.3 of the Regulations conferred upon a trainee the right to appeal an adverse decision to the College if the decision was made by a supervisor or the director of training. (That clause further provided that the relevant College committee and/or the Board of Education “will consider such requests”. Moreover, the same provision also provided that a trainee who was adversely affected by a decision in relation to training and assessment may appeal to the Appeals Committee of the College in accordance with the relevant College by-laws). [248] Dr Jurd confirmed that the mid-term rotation report prepared by Dr Wilson was not a document which would be forwarded to the College and that the document had no formal status. However, he believed that it was open to Dr Maiocchi to have appealed the mid-term rotation report if she had wanted to. I accept this evidence. [249] Dr Jurd was also cross-examined by Dr Maiocchi. In that cross-examination, Dr Maiocchi frequently lapsed into giving further oral evidence in chief rather than formulating appropriate questions in cross-examination. She was repeatedly reminded by the Court of the need to ask Dr Jurd relevant questions, rather than herself making statements and assertions from the Bar table. [250] Dr Jurd confirmed that he was aware that Dr Maiocchi had passed the College’s requirements prior to her traineeship at the Northside Clinic, apart from having failed her written exam twice. In particular, he stated that this meant that in her earlier rotations she had been assessed as having reached the requisite standard in English. He also acknowledged that: (a) he was aware that Dr Maiocchi had worked in the public health system at Sutherland Hospital, which would have involved her having to engage with patients who had varying levels of education and command of English; (b) he was aware that Dr Maiocchi had passed her rotation at RNS Hospital in the Child and Adolescent unit, which involved her dealing with young people, including young girls with suicidal thoughts and that this required her to be competent in family psychotherapy; (c) Dr Maiocchi’s earlier traineeship rotations involved her working with different cultures and in different wards and involved “clinical liaison” with other professionals, patients and their families; and (d) he was aware that Dr Maiocchi had passed her two case studies, which involved her undertaking written examinations in the form of essays. [251] Dr Maiocchi put to Dr Jurd that he must have recognised that when she commenced her traineeship at Northside Clinic she had already achieved a level of English proficiency and communication which the College would accept. He denied that proposition. He explained that the next significant hurdle for Dr Maiocchi in her training would be the clinical examination, which involved an oral examination that was face to face, high pressure and required “synthetic thinking”, which he explained involved quick synthesis of information and conveying it to professional colleagues clearly and in “excellent quality English”. Dr Jurd added that he believed that there was a very difficult barrier confronting Dr Maiocchi, given the quality of her verbal expression. I accept this evidence. Page 31 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [252] When Dr Jurd was asked to comment on Dr Maiocchi’s expectation that, when she was accepted for psychiatric training in 2005, she would be admitted as a Fellow of the College in 2010 as long as she achieved the relevant requirements, he responded that the clinical exams were the most difficult test and had the highest failure rate. When he was asked how many trainees who had a Master’s Degree in Psychiatry had failed to become Fellows at the College, Dr Jurd said that it probably was a fairly small percentage. [253] Dr Jurd commented that it was not only his personal opinion that Dr Maiocchi had language difficulties — he had received feedback from seven of her previous supervisors who said that she had issues with English communication. He therefore deduced that this was an area for development in her case. He explained that he was conscious of the fact that the clinical examination was the next test in her traineeship and that before she could undertake that task she had to pass her written examination, which she had failed twice before. I accept this evidence. [254] When it was put to Dr Jurd that the second remediation plan had stopped Dr Maiocchi from undertaking the clinical examination and that it was not “a step forward” for her, Dr Jurd disagreed and said that the remediation plan addressed the relevant issues and was intended to help Dr Maiocchi be accepted as a Fellow of the College. I accept that evidence. [255] Dr Jurd also commented that when the second remediation plan was formulated Dr Maiocchi was not eligible to sit the clinical examination because, although she had sat the written examination in March 2010, the results were not known when the remediation plan was devised in mid-April 2010. The results only became known in May 2010. [256] Dr Jurd acknowledged that he considered that Dr Maiocchi had much determination and a strong motivation to become a Fellow. He described his challenge as steering that motivation in the correct direction. I accept that evidence. [257] Dr Jurd acknowledged that Dr Maiocchi had approached him for advice in relation to the first remediation plan. He agreed that the second remediation plan was presented quite differently from the first. He explained that this was because the first remediation plan was compulsory in circumstances where Dr Maiocchi had failed a written examination twice and therefore the College requirement of a remediation plan was triggered. In the case of the second remediation plan, this was instigated by Dr Jurd’s opinion that it was necessary, informed by the opinions of Drs Wilson and Harper, who had passed on their views and concerns about Dr Maiocchi. Dr Jurd explained that he formed the view that the second remediation plan was the only way in which Dr Maiocchi could progress in her traineeship. He said that he understood that Dr Maiocchi would be unhappy with that course. He also acknowledged that he did not consult with Dr Maiocchi in formulating the second remediation plan. He explained that he believed that it was desirable to prepare the remediation plans in advance of meeting with Dr Maiocchi to discuss it because she “needed to be clear that this was the sort of thing that I thought needed to happen”. He acknowledged that Dr Lyndon was Dr Maiocchi’s tutor for the purposes of her written dissertation in her Master’s degree but he considered that it was a matter of opinion as to whether Dr Maiocchi’s standard of English was acceptable. I accept this evidence. [258] Dr Jurd acknowledged that Dr Maiocchi had successfully completed nine rotations and that she was progressing in her traineeship but he disagreed that she had met the relevant College guidelines. He explained that this was because she had started her training in 2005 and in April 2010 she still had not completed the requisite three years of basic training. He acknowledged that Dr Maiocchi had been training on a part-time basis for one year but he added that he considered that her training had been delayed by her failure to pass the written examination twice and the necessity to sit a third exam. Dr Jurd added that the relevant College guidelines were directed at people in other circumstances than Dr Maiocchi’s who, in 2010, was five years into her training program and still had not completed her basic training. He said that his goal was to try to have Dr Maiocchi complete her training within five years. When Dr Jurd was asked to comment what percentage of trainees passed their written examinations, he said that he understood that it was in a range of 65–70 per cent of trainees who pass the written exam at their first attempt. I accept this evidence. [259] Dr Jurd said that it was only as at close of business on 7 May 2010, when he learned that she had passed her written exam, that Dr Maiocchi was eligible to apply to enter the advanced training program. [260] Dr Jurd accepted that in November 2009 he had signed a document which stated that Dr Maiocchi had satisfactorily complied with the first remediation plan. He added, however, that he had concerns even at that time because of Dr Maiocchi’s track record and her having failed the written exam twice. He said that he tried to support Dr Maiocchi but that he apprehended that there was a chance that she might fail her third attempt at the exam. [261] When it was put to Dr Jurd that in Dr Maiocchi’s nine previous rotations, nine supervisors had rated her as either having achieved above expectation or acceptable, with one exception, he accepted that that was the case. When it was then put to him whether something had changed in respect of Dr Maiocchi in January 2010, Dr Jurd said that it had. He explained that personalities do change and even though Dr Maiocchi had received acceptable scores in her earlier rotations he was nevertheless aware that there were “friction points” with numerous people during her earlier training, including “that a mild mannered child psychiatrist was reduced to shouting at you”. He Page 32 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 said that he had received feedback from two of Dr Maiocchi’s site co-ordinators and two supervisors that Dr Maiocchi had been involved in “significant frictions” during some of her rotations. Dr Jurd added that while he was aware that Dr Maiocchi had some practical difficulties in complying with one of her rotations at Manly Hospital because of transport difficulties, he was advised by the drug and alcohol team that Dr Maiocchi had difficulties with members of the team. I accept this evidence. [262] Dr Jurd was then cross-examined on the recommendation in the April 2010 remediation plan that Dr Maiocchi read “lowbrow magazines” and try to improve her fluency in local vernacular. He said that he was unaware of any specific College requirements that trainees be familiar with local vernacular but he explained that he came to the view that Dr Maiocchi needed to focus on that subject because of the “chubby” incident and also because he formed the view that while Dr Maiocchi may have understood the dictionary meaning of terms she was unaware of nuanced meanings of some words in Australian English. I accept this evidence. [263] When Dr Jurd was cross-examined about Dr Maiocchi’s accent, he confirmed that he found her accent to be difficult and that he was concerned that some patients and nurses would also experience difficulties with it. When he was asked to explain how Dr Maiocchi’s accent was different from other people’s accents, Dr Jurd said that her accent was more extreme and “complicated with a number of issues of diction”. He said that he hoped that Dr Maiocchi might have been able to move towards an “Australian English accent”. I find that this evidence was truthfully given and I accept it. It accords with my own observations of Dr Maiocchi’s communication skills, especially when she was stressed. She was also prone at times to misunderstand questions when she was being cross-examined. [264] Dr Jurd was cross-examined about Dr Wilson’s letter of complaint. Dr Jurd confirmed that when he met with Dr Maiocchi on 11 May 2010 he had not had access to medical records about the various patients who figured in complaints about Dr Maiocchi. He also accepted that he did not have those medical records when he undertook the risk assessment. When it was put to Dr Jurd that he did not comply with relevant parts of the College’s management guidelines because he did not have access to the relevant medical records, he accepted that while he was trying at all times to do his duty, he may not have always followed the guidelines to the letter. I accept that evidence. [265] It is significant that at no point during his cross-examination was it put to Dr Jurd that his repeated denials that any of his relevant actions were motivated by Dr Maiocchi’s race, ethnicity or migrant status were false. Indeed, not a single question was put to Dr Jurd in cross-examination which dealt directly with the question whether any of his actions were so motivated. [266] Dr Jurd was an impressive witness. He gave his evidence confidently, responsively, sensitively and dispassionately. His experience, professionalism and objectivity were very evident, as was his concern for Dr Maiocchi personally. I have no hesitation in accepting all of Dr Jurd’s evidence and in preferring it to that of Dr Maiocchi’s on any disputed matters. Dr Maiocchi’s submissions summarised [267] Dr Maiocchi relied on two written documents which outlined her submissions. They were dated 17 June 2015 and 15 July 2015 respectively. Dr Maiocchi also handed up on the final day of the hearing a further written document entitled “Applicant’s Oral Submissions for 21 July 2015”. Dr Maiocchi supplemented these materials with brief oral submissions in closing address. [268] I have considered all of Dr Maiocchi’s submissions, both written and oral. It has to be said that some of her submissions were directed to matters which were not properly raised by the Statement of Issues or, when they did, some were expressed rather obscurely. This is perhaps unsurprising in circumstances where Dr Maiocchi has no legal training, but it also further illustrates some of her difficulties with her written and oral expression. As best I can, I have endeavoured to understand Dr Maiocchi’s case. [269] In broad terms, Dr Maiocchi’s submissions were as follows. The Court was urged to consider all of the evidence in all of the affidavits sworn by Dr Maiocchi in the proceeding, including both the text and the exhibits thereto. Dr Maiocchi submitted that the Court should regard all her statements from the Bar table, including her comments during her cross-examination, as part of her oral evidence in chief and as admissible evidence, citing in support of that contention Lina Obieta v New South Wales Department of Education and Training [2007] FCA 86 (Obieta). Dr Maiocchi further submitted that her letter of complaint dated 18 July 2011 to the Commission ought to be considered by the Court as evidence and/or submissions. Dr Maiocchi also submitted that the responses provided by Drs Jurd and Wilson to the Commission should be added to their evidence in chief in the proceedings as if the material had been included in their sworn statements, as should also all correspondence sent to the Commission in respect of Dr Maiocchi’s complaint. Alternatively, Dr Maiocchi submitted that such material should be regarded as submissions to the Court. She identified particular documents which were exhibited to her affidavits as fitting into this category. [270] Dr Maiocchi submitted that she was entitled to be awarded aggravated damages having regard to her allegations that: Page 33 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 (a) her employment was terminated while the proceedings were on foot in mid-2013 in circumstances where the basis for that termination was inseverable from the issues in the Court proceedings; (b) the College and the NSLHD failed to follow its written policies of “zero tolerance” in respect of bullying and harassment; (c) the NSLHD failed to follow written mandatory policies of NSW Health; (d) the NSLHD and its employees failed to comply with their obligations under occupational health and safety legislation. In particular, Dr Maiocchi complained that the NSLHD failed to take into account the possibility of bullying, discrimination or harassment while she was being investigated; (e) Dr Maiocchi’s training with the College was put on hold on 11 May 2010 even though there were other activities which could have been undertaken by her which would have entitled her to continue her College training; (f) her clinical privileges were not restored in May 2011 while the conciliation process in the Commission was taking place; and (g) the NSLHD’S investigation failed to provide fairness. [271] Dr Maiocchi submitted that the Court was obliged to consider all documents which were attached to the notice of termination issued by the Commission or on which the Commission based its investigation irrespective of whether Dr Maiocchi had specifically referred to them in the proceedings. She also submitted that the Court was obliged “to actively seek whether there are any matters of law or legal issues that may have been lost to an unrepresented applicant”, citing Barghouti v Transfield Pty Ltd [2002] FCA 666 ; (2012) 122 FCR 19. [272] Dr Maiocchi challenged the significance which the respondents attached to her failure to attend the performance assessment ordered by the Medical Council of NSW She claimed that Nicholas J “did not follow proper curial process” in dismissing her case against the Medical Council of NSW She submitted that, once she had passed the communication skills assessment required by the AMC, and had completed her internship at an Australian public hospital, it was not open to the Medical Council of NSW or any of the respondents to question her communication skills. [273] Dr Maiocchi made detailed submissions regarding several clinical matters, which may be summarised as follows. [274] On the matter of her having prescribed Seroquel immediate-release instead of Seroquel slow-release, Dr Maiocchi submitted that: (a) her error was related to the off-label use of the medication; (b) there was no evidence of orthostatic hypotension in the patient’s medical records and that the follow up of the patient requested by the specialist practitioner, Dr Ming Tan, “was his personal preference but not supported by pharmoco-dynamics and -kinetic of the drug”; (c) medication charting errors, although unwanted, were not unavoidable, relying on Associate Professor Greenwood’s assessment which was contrary to Dr Wilson’s claim; and (d) Dr Wilson had evaluated Dr Maiocchi differently and his actions were “based on prejudice and making accusations that are vexatious and not supported by evidence”. [275] Dr Maiocchi submitted that the Court should accept her evidence regarding Dr Wilson having made an entry concerning the treatment of BM in the now lost communication book. Dr Maiocchi added that her case was disadvantaged by the destruction of the notebook and that it was unjust because she was not able to provide the tangible evidence which she needed to support her version of events, namely that she was acting under Dr Wilson’s direction on 7 May 2010. [276] Dr Maiocchi submitted that Dr Wilson’s evidence was in conflict with relevant medical records and that without the addition of Dr Wilson’s claim that BM had urinated in the lift, BM’s mental state did not amount to delirium. Dr Maiocchi was critical of other aspects of Dr Wilson’s evidence concerning BM’s medical condition and treatment. She submitted that Dr Wilson presented an inconsistent account concerning BM in the period 7–10 May 2010 and that such inconsistencies were “based on prejudice regarding Dr Maiocchi’s professionalism and Dr Maiocchi’s medical knowledge and cannot be independently supported by evidence”. [277] As to Dr Wilson’s claim that Dr Maiocchi failed to inform him of BM’s low sodium level, Dr Maiocchi submitted that she did in fact tell Dr Wilson verbally about the low reading and that his denial should not be accepted. Dr Maiocchi was also critical of Dr Wilson’s view that BM’s low sodium level constituted a medical emergency. She said that this view was inconsistent with the management plan Dr Maiocchi carried out in response to the sodium Page 34 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 level of 128 mmol/L on 10 May 2010, as well as Associate Professor Greenwood’s views. Dr Maiocchi submitted that Dr Wilson had failed to “upkeep the alarming situation of the patient expressed in the letter 14 May 2010” and failed to demonstrate any wrongdoing by Dr Maiocchi or lack of knowledge. She said that these matters, together with Dr Wilson’s denial of having written in the communication book, showed “a biased behaviour toward the Applicant and assumptions based on prejudices leading to unequal treatment”. [278] As to patient KS, Dr Maiocchi submitted that the medical records indicated that KS’s body mass index remained at a “healthy weight” throughout her admission and that she never met the DSM-IV-TR criterion A for anorexia nervosa. Dr Maiocchi emphasised that while Dr Wilson had accepted in his evidence that KS was not suffering from anorexia nervosa, this apparent diagnosis formed part of the allegations against her. [279] Dr Maiocchi submitted that Dr Wilson had misled Dr Jurd and the investigators in claiming that KS had anorexia nervosa and that this “deception” produced serious consequences for Dr Maiocchi, including the loss of her clinical privileges. [280] Dr Maiocchi was critical of the medical competency of some of Dr Wilson’s other statements, both in the proceedings and in the earlier investigations. Dr Maiocchi submitted that the medical records did not indicate “that patient KS was not eating to the dangerous level described by Dr Wilson” and that her fluid chart did not show an intake of fluid below the daily normal requirements, with the consequence there was no need to contemplate intravenous fluids and nasogastric food. She submitted that Dr Wilson was “distorting” the reality of KS’s condition, which served to make Dr Maiocchi’s actions to be “perceived wrongly”. In particular, she challenged Dr Wilson’s description in his letter of complaint to Dr Jurd that KS’s position was life-threatening, which she said was not supported by KS’s medical records, especially the fact that she had been downgraded from a category 4 to a category 3 patient and was waiting for a bed back in the normal ward. [281] Dr Maiocchi accepted that KS’s medical records recorded the patient as saying that she felt “disgusting” and “really big at the moment” and that she would like her weight to be 60 kgs and not her then current weight, but she submitted that this was in conflict with Dr Wilson’s statement regarding KS having body image disturbance because KS’s evaluation of her weight was accurate and she did not have anorexia nervosa. As to her use of the word “chubby”, Dr Maiocchi accepted that she had used that word but she submitted that this was because she was under so much stress and duress following her “heated supervision” with Dr Wilson. Dr Maiocchi submitted that “Dr Wilson shows that he perceived and portrayed Dr Maiocchi as intrinsically different from and alien to him” and that his “misleading information” about KS prompted actions against Dr Maiocchi. [282] Dr Maiocchi challenged Dr Harper’s comments regarding the Bactrim incident. Dr Maiocchi said that Dr Harper’s assessment was inconsistent with available evidence concerning the pharmaceutical prescription reference guide for Bactrim (the Monthly Index of Medical Specialities (MIMS)). Dr Maiocchi defended her actions in having prescribed one tablet of Bactrim twice daily, particularly because she said there was only one form of Bactrim which was in tablet form (Bactrim DS), as opposed to prescribing Bactrim oral suspension. She submitted that her actions were consistent with the MIMS. Dr Maiocchi also relied on Associate Professor Greenwood’s assessment of this incident. Finally, Dr Maiocchi submitted that she was extremely distressed when she discussed the matter with Dr Harper. She added that she thought the discussion was in relation to the second remediation plan which had been directed by Dr Jurd and she believed that she was being unfairly targeted for “non-existent performance issues”. Dr Maiocchi submitted that Dr Harper was “misrepresenting the facts”, that her evidence was hearsay and had been collected by Dr Wilson with the “only purpose of supporting his biased opinions”. Dr Maiocchi described Dr Harper’s treatment of her as “discriminatory” and as causing her distress. [283] Dr Maiocchi challenged Dr Brown’s statements to the HCCC regarding treatment which he ordered for one of his patients. Dr Maiocchi said that Dr Brown’s statements lacked veracity, were hearsay and had been collected by Dr Wilson with the sole purpose of supporting “his biased opinions”. [284] As to Dr Bradley’s comments in her assessment of Dr Maiocchi and areas which she said needed further development, Dr Maiocchi pointed out that despite Dr Bradley’s comments regarding her accent in June 2009 she approved Dr Maiocchi’s “CBT case”, which involved talking therapy. Dr Maiocchi emphasised that she had completed tutorial presentations in her Master’s Degree in Psychiatry over a period of three years and had never received any feedback about her accent impeding her performance. Dr Maiocchi added that, prior to her time at Northside Clinic, none of her previous supervisors had identified her accent or communication as being so “unsatisfactory” as to require a remediation plan. In response to Dr Jurd’s evidence that seven of Dr Maiocchi’s supervisors had identified communication as an area for further development, Dr Maiocchi said that this did not mean that she was incapable of progressing in her training and that accent and communication were areas in which she always could further develop. She submitted that Dr Wilson and Dr Jurd perceived and portrayed her as “intrinsically different from and alien to them”. [285] Dr Maiocchi submitted that Dr Wilson’s evidence regarding Dr Maiocchi’s health, including following her car accident, displayed a “paternalistic attitude” on his part and ignored “the detrimental effect of his prejudice”. Dr Maiocchi emphasised that neither Dr Wilson nor Dr Jurd had any “duty of care” to enquire about her health and she described their enquiries about her health as “boundary crossing”. Page 35 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [286] Dr Maiocchi criticised Dr Jurd for continuing to say that her use of the word “chubby” with patient KS was cultural. Dr Maiocchi said that she maintained the explanation she had given since 2010 for using that word. [287] Dr Maiocchi added that Dr Jurd failed to demonstrate that she did not achieve the level of performance required by the College to progress in her training and that, by March 2010, she had completed the basic training requirements and was eligible to apply for advanced training. She said that the recent passing of her written exam placed her in the most favourable position to attempt the clinical examination. She submitted that she had progressed in a timely manner in her training, consistently with the requirements in the College’s Link 71. She had completed ten observed clinical interviews by the end of her first year; she had commenced her long psychotherapy case in her second year; and had completed the requirements in Link 71 for her third and fourth years. Dr Maiocchi submitted that Dr Jurd had a biased perception of her and her clinical performance because she had already achieved the College requirements to be eligible to apply for advanced training. [288] Finally, Dr Maiocchi was highly critical of Dr Jurd’s acceptance “at face value” of the allegations made against her by Dr Wilson in his letter of complaint, which she said were unsupported by the evidence and displayed a “strong prejudice” by Dr Jurd and doomed her career. Dr Maiocchi emphasised that Dr Jurd admitted in his oral evidence that he did not have the relevant medical records before him when he determined the need for a risk assessment of her. She submitted that Dr Jurd also confirmed in his oral evidence that he did not follow procedure when formulating the risk assessment. [289] In broad terms, Dr Maiocchi’s written submissions in reply filed on 15 July 2015 may be summarised as follows. [290] Dr Maiocchi emphasised that the AMC had assessed her English language as sufficiently sound for her to have been granted a full registration in 2004 and that the respondents had not impugned the AMC’s standing. She also emphasised that she had practised with full registration from 2004–2010 and had passed relevant College training requirements, which needed a good command of English, such as in talking therapies. Dr Maiocchi added that she had also completed her Master’s Degree in Psychiatry. Dr Maiocchi submitted as follows: Given the Applicant’s Australian qualifications, and given how comprehensive the process of evaluation leading to obtaining the Australian qualifications of the Applicant (including her Master’s Degree in Psychiatry), it is not open to the Court or to the current Respondents, or the President of the RANZCP, and it was not open to the Medical Council of NSW or the HCCC, to evaluate whether the command of English Language for the Applicant is, and was, fit to practice (sic) medicine, including psychiatry. [291] Dr Maiocchi submitted that the second remediation plan and the allegations of medical malpractice made against her were “vexatious” in circumstances where the panel who decided upon the remediation plan considered that some health issue was affecting her performance. [292] Dr Maiocchi complained about various aspects of the second remediation plan, including that it required that she not threaten her supervisor, not “call names” and that she was required to perform basic tasks under the supervision of the NUM. She submitted that none of these requirements was justified or explained and that the remediation plan stereotyped her as “a South American woman as constructed by Dr Jurd”. Dr Maiocchi submitted that the respondents had failed to adduce any independent evidence either in the Court or before the Commission, which indicated that any other College trainee had been treated like her, including being required to read “trashy magazines in order gain (sic) command of the ‘local vernacular’ beyond what a general practitioner needs”. [293] Dr Maiocchi submitted that no independent evidence had been presented either to the Court or the Commission relating to aspects of Dr Jurd’s role in the first investigation, nor had any explanation or justification been given as to why Dr Maiocchi’s clinical privileges had been withdrawn based on what she described as “an obviously flawed risk assessment”. In support of that submission, Dr Maiocchi complained that although a further risk assessment which was done in January 2011 addressed some of the deficiencies in the earlier assessment, there were still some problems, including the absence of any “IIMS” number (a reference to the Incident Information Management System which records incidents in the public health system), or of any “SAC” rating (a reference to the Severity Assessment Code, which rates the risk level of a IIMS report). She also submitted that the “actual option of restricting clinical privileges was not properly selected”. [294] Dr Maiocchi strongly disputed the claim that the second remediation plan was made to help her progress with her training. [295] Dr Maiocchi made separate serious allegations that what she described as “crucial documents” were not provided to the Court in earlier interlocutory proceedings. They included Dr Wilson’s letter of complaint to Dr Jurd. (But, as Dr Maiocchi herself acknowledged, this document was used by Nicholas J in formulating the Statement of Issues and must therefore have been before him. The document was also in evidence in the substantive proceeding). Dr Maiocchi complained that Associate Professor Greenwood’s report should have been provided at an interlocutory hearing before Nicholas J held on 9 November 2012. (As noted above, that document was in evidence in the substantive proceeding, albeit only on a non-hearsay basis). Page 36 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [296] Dr Maiocchi also made allegations concerning the Medical Council of NSW and the HCCC arising from her claim that they were “prosecuting” her in another court while the current proceedings were on foot. Those matters fall outside the Statement of Issues and need not be elaborated upon. [297] Dr Maiocchi made detailed responses to the outlines of written submissions filed by Dr Wilson, Dr Jurd and the NSLHD. In broad terms, Dr Maiocchi submitted that Dr Wilson’s assessment of her reflected a stereotyping of her as an overseas doctor and was biased and contributed to her “toxic” work environment. Dr Maiocchi again drew attention to her professional achievements, including completing her Master’s Degree in Psychiatry, her publications and favourable references provided by various of her colleagues, former patients and their families. [298] Dr Maiocchi contended that she had been progressing in a timely manner and was poised to do her advanced training but that the stress which she experienced as a result of the claimed discrimination and harassment could affect performance. She submitted that the stress she felt at the Northside Clinic resulted from her interactions with Dr Wilson but that the professional tasks she carried out were not a source of stress. Dr Maiocchi added that the errors she made while on rotation attracted a high level of scrutiny and disproportionate consequences which would not have occurred with any other registrar [36]. She also emphasised that the medical records of the relevant patients did not record any reported adverse medical and/or psychological consequences arising from her conduct. [299] Dr Maiocchi submitted that all her previous supervisors had said in their end-of-term evaluations that they had no reservations about her progressing to the next stage of training and that while her language skills had been highlighted as needing further development, none of her previous nine supervisors considered that this would impact upon her ability to practise psychiatry. [300] In response to Dr Jurd having pointed out that, in 2008, Dr Furst had included a comment in his evaluation of Dr Maiocchi that she should “improve her medical and psychiatric knowledge base”, Dr Maiocchi contended that Dr Furst was a junior specialist and was “vulnerable to Dr Jurd’s authority”. Notably, this contention was not put to Dr Jurd in cross-examination. Dr Maiocchi added that as a result of this particular training term, she had taken six months stress leave and spent one year working part-time. [301] In response to Dr Wilson’s submissions regarding patient KS, Dr Maiocchi accepted that KS had anorexia, but submitted that her medical records stated that she was “eating although not hungry”. This, Dr Maiocchi submitted, was not indicative of a life-threatening anorexia as Dr Wilson had alleged in his letter of complaint. Dr Maiocchi was critical of Dr Wilson’s letter because even though it did not state that KS had been diagnosed with anorexia nervosa she submitted that this diagnosis was assumed by the investigators. Moreover, it was not until Dr Wilson gave evidence in these proceedings that he clarified that he had meant to say that KS had anorexic symptoms and not anorexia nervosa. [302] Dr Maiocchi contended that Dr Wilson’s letter was “deliberately misleading in regards to its account of the severity of the medical situation of the patients described in the allegations”, which was intended to damage Dr Maiocchi’s reputation and career. Dr Maiocchi also accused Dr Wilson of having acted in breach of policy in not having recorded on KS’s medical records the fact that the word “chubby” was used and in failing to make relevant entries in BM’s medical records to support his diagnosis of delirium and BM’s opioid dependency. [303] Dr Maiocchi was critical of Dr Wilson’s alleged failure to elaborate in his evidence on why he made a hand- written note recording Dr Maiocchi’s lack of appreciation of BM’s low sodium result during their supervision on 10 May 2010, in contrast with her own evidence on that subject. Dr Maiocchi submitted that there was no evidence to support Dr Wilson’s opinion, yet it produced severe consequences for her. She submitted that Dr Wilson’s view of her: … was informed by his perception of [her] as incompetent and unknowledgeable due to her standing of being a migrant doctor (despite evidence to the contrary) and his perception of her lack of appreciation of and integration into Australian culture. [304] Dr Maiocchi submitted that Dr Jurd’s opinion of whether patients could understand her English was “a personal opinion and not based on consistent written evidence or patient complaints”. She again pointed to the successful assessments she had received in previous rotations concerning her psychiatric and clinical interviewing skills. Dr Maiocchi was critical of Dr Jurd’s actions in suspending her from clinical duties and placing her in a non- clinical role, as well as him carrying out the risk assessment in a way which she submitted did not follow health service guidelines. She submitted that if Dr Jurd had been acting in good faith he could have placed her in a non- clinical position which would have counted towards her training, such as a supervised research position. [305] Dr Maiocchi reiterated that she had passed the College training requirements for English and that this was inconsistent with Dr Jurd’s assessment of her language skills. [306] Dr Maiocchi disputed Dr Jurd’s evidence that he had put her into the second remediation plan in order to help her perform well in the clinical exam which required her to have a high level of verbal expression. She complained that the remediation plan contained elements which had no objective standard and that it operated to prevent her Page 37 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 from sitting the clinical exam. Dr Maiocchi also challenged Dr Jurd’s evidence that Dr Maiocchi’s attitude to supervision was due to Dr Maiocchi’s behaviour and not the environment created by Dr Wilson. [307] Dr Maiocchi emphasised that Dr Jurd had not followed proper protocol when creating the second remediation plan, in that it was prepared without her participation and was created in a way which caused her considerable distress. [308] Dr Maiocchi submitted that the Court should find that both Dr Wilson and Dr Jurd lacked credibility because their evidence differed from information they had provided to the Commission, including Dr Jurd’s statement to the Commission that there had been “an intervention” in Dr Maiocchi’s rotation dealing with children and adolescence, which, she submitted, misled the first investigation team. Dr Maiocchi also repeated her earlier submission that Dr Wilson’s “substandard medical record keeping” cast doubt on his credibility. [309] In support of her claim that her treatment by Dr Wilson and Dr Jurd was based on race, ethnicity or her “condition as a migrant”, Dr Maiocchi made the following additional submissions in reply: (a) she was bullied by Dr Wilson, who also discriminated against her by producing the mid-rotation report which evaluated her in an unfairly harsh way and with a view to her being placed on a remedial; (b) Dr Maiocchi had “similar experience and aptitude as any other Australia-trained psychiatry registrar” and Dr Wilson’s treatment of her was “unique” and related to her “condition as a migrant”; (c) the mid-rotation report was also unfairly harsh as the objectives which were set were substantially similar to the previous training objectives which Dr Maiocchi had met; (d) the second remediation plan was discriminatory in that it posed a condition on Dr Maiocchi to “moderate accent”, yet there was no such requirement in the College training requirements and there was no objective standard against which the condition could be judged; (e) Dr Jurd took into account his own personal difficulties in understanding Dr Maiocchi’s expression and his assumption that patients would have more difficulty than him in this regard, yet there were no patient complaints and Dr Maiocchi’s previous record was inconsistent with his assessment; (f) the requirement to read lowbrow magazines was not a part of the College training requirements and simply reflected a perception that Dr Maiocchi had not integrated into the local-vernacular culture of Australia; (g) Dr Jurd’s reaction to Dr Maiocchi using the word “chubby” was misdirected because it had nothing to do with cultural differences but was due to emotional distress as a result of Dr Maiocchi’s recent supervision with Dr Wilson; (h) the requirement in the remediation plan that Dr Maiocchi was not to “name-call” or “threaten” was defamatory and unwarranted and “could be interpreted as an unspoken stereotype of [Dr Maiocchi’s] background”; (i) the requirement that Dr Maiocchi perform duties under the supervision of the NUM was also “defamatory” and undermined Dr Maiocchi’s position in the workplace; and (j) Dr Maiocchi repeated her earlier submissions concerning her placement on non-clinical duties and the removal of her clinical privileges, as well as her reliance on Associate Professor Greenwood’s assessment. [310] Dr Maiocchi contended that the “crux” of the proceedings is whether her treatment by Dr Jurd and Dr Wilson was related to their perception of her as a migrant. [311] Dr Maiocchi made detailed submissions in support of her claim for damages and the vicarious liability of the College and the NSLHD. It is unnecessary to elaborate upon those matters. They arise for determination only if Dr Maiocchi succeeds on liability. [312] With reference to the Statement of Issues, Dr Maiocchi contended that issues [1], [2], [4] and [5] should be answered “yes”. She submitted that it was clear that: (a) her migrant status, her previous medical career in Argentina and her having English as a second language were taken into account by Dr Wilson and Dr Jurd when she was evaluated and caused them to have a “distorted perception” of her; (b) this distorted perception then led the respondents to conclude that Dr Maiocchi would be a risk to patients and the respondents formed a “target” to prevent Dr Maiocchi from further training with the College or working as a doctor in Australia; (c) she has been discriminated against because the various evaluations of her ignored her Australian qualifications, including her English language skills in the practice of medicine; and Page 38 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 (d) the various adverse evaluations of her were unreasonably harsh and constituted bullying and/or harassment which were the product of the matters raised above. [313] Secondly, with respect to [4(b)] of the Statement of Issues, Dr Maiocchi submitted that: (a) no proper independent evaluation was arranged by Dr Jurd, who selected colleagues whom he believed would not challenge the views of fellow psychiatrists and co-workers (it should be noted that this was never put to Dr Jurd in cross-examination); (b) Dr Jurd’s assessment was flawed by his non-access to relevant medical records; and (c) if a critical evaluation had been properly conducted, a “SAC” rating would have resulted so as to comply with the relevant policies of NSW Health. [314] Thirdly, Dr Maiocchi submitted that the respondents acted in a co-ordinated fashion to achieve their “target” as described above, including Dr Wilson’s conduct in preparing the mid-term evaluation which then led to Dr Jurd preparing the second remediation plan which would be judged by Dr Jurd, and Dr Wilson having made “vexatious allegations of poor performance” in order that Dr Jurd could make an adverse risk assessment. [315] Finally, in the written document handed up by her on the final day of the hearing, Dr Maiocchi made various submissions concerning remedies, vicarious liability, the HCCC’s investigation and the proper construction of Art 5 of the International Convention on the Elimination of All Forms of Racial Discrimination (the Convention). She also reiterated her strong reliance on Associate Professor Greenwood’s assessment. The College’s closing submissions summarised [316] The College opposed Dr Maiocchi relying upon any additional material which had not already been admitted into evidence, at least without her seeking leave to re-open her case. It also opposed the Court treating comments made by her during cross-examination as evidence. It submitted that Dr Maiocchi’s contrary position was not supported by Obieta. The College emphasised that the issues in dispute were limited to the Statement of Issues made on 22 August 2014, however, Dr Maiocchi raised the following issues which were beyond the scope of that document: (a) the College continually failed to follow its written policies regarding zero tolerance towards bullying and harassment; (b) the training with the College was “for all practical terms” terminated on 11 May 2010; and (c) the College had a contractual obligation to abide by its own policies and bylaws and to act in good faith. [317] The College submitted that it was an abuse of process to attempt to raise these three matters. The College declined to respond to them. [318] On more general matters relating to racial discrimination allegations under s 9 of the Act, the College submitted that Dr Maiocchi carried the onus of establishing unlawful discrimination; and because her allegations were serious they attracted the principles in Briginshaw v Briginshaw and s 140 of the Evidence Act. [319] After noting that allegations of both direct and indirect discrimination were raised by Dr Maiocchi against Dr Wilson and Dr Jurd, the College submitted that the two forms of discrimination were mutually exclusive, citing Australian Medical Council v Wilson [1996] FCA 591; AustLII citation [1996] FCA 1618 ; (1996) 68 FCR 46 (Wilson) at 55 per Heerey J and at 74 per Sackville J. Moreover, the College submitted that, to succeed in the proceeding, Dr Maiocchi had to establish that the actions of Dr Wilson and/or Dr Jurd nullified or impaired her enjoyment or exercise of a “human right or fundamental freedom in the political, economic, social, cultural or any other field of public life”. The College cited Wilson in support of its contention that the proceeding did not relate to the “right to work” per se, but involved a claim that Dr Maiocchi was entitled to work as a psychiatrist in unrestricted practice or to participate in the College’s training program, which was not a protected right for the purposes of Art 5 of the Convention. [320] The College submitted that the proceedings were not an investigation into Dr Maiocchi’s professional competence, however, it acknowledged that Dr Maiocchi’s competence and the various incidents relating to her training might be relevant to the extent that Dr Maiocchi’s unsatisfactory clinical performance provided an explanation for the actions of Dr Wilson and Dr Jurd. The College added, however, that the Court did not need to judge Dr Maiocchi’s clinical competence because, while there might be room for debate regarding the seriousness of Dr Maiocchi’s errors, “there can be no questions errors were made”. Reiterating the importance of the fact that Dr Maiocchi carried the burden, the College submitted that the Court should not infer racial discrimination in circumstances where Dr Maiocchi’s professional performance provided a plausible, if not compelling, justification for those actions. Page 39 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [321] As to Dr Maiocchi’s allegations of direct discrimination under s 9(1) of the Act, the College submitted that she was required to demonstrate that the conduct of Dr Wilson and Dr Jurd was “based on” her race or ethnic origin. Although a strict causal nexus was not required, Dr Maiocchi had to demonstrate “a close relationship between the designated characteristic and the impugned conduct”, citing Macedonian Teachers Association of Victoria Inc v Human Rights & Equal Opportunity Commission [1998] FCA 1650 ; (1998) 91 FCR 8 (Macedonian Teachers Association) at 33 per Weinberg J. The College emphasised how little evidence there was which established any connection between Dr Maiocchi’s ethnic origin and the relevant conduct of which she complained. It submitted that the only potentially relevant aspects of the complaint concerned: (a) Dr Wilson’s suggestion that the use of the word “chubby” by Dr Maiocchi may be the result of “cultural differences”; (b) the recommendation in the remediation plan that Dr Maiocchi continue to study English and increase her fluency in local vernacular; and (c) Dr Jurd’s attempt to translate the word “pugnacious” into Spanish so as to assist Dr Maiocchi understand his feedback. [322] The College submitted that none of these actions were discriminatory because they did not involve a “distinction, exclusion, restriction or preference” but rather were to be characterised as entirely proper attempts to give Dr Maiocchi feedback concerning her professional development. [323] As to Dr Maiocchi’s allegations of indirect discrimination under s 9(1A) of the Act, Dr Maiocchi had to identify precisely the term, condition or requirement which she alleges to be discriminatory, but she has failed to do so, so submitted the College. Moreover, even if it were demonstrated that a discriminatory requirement relating to English language proficiency was imposed, the uncontested evidence of both Professor Hopwood and Dr Samuels is that effective communication with patients, including in understanding vernacular expression, is an essential aspect of psychiatry and would not be unlawful having regard to s 9(1A)(a) of the Act. [324] The College also made detailed submissions in support of its position that it did not bear any vicarious liability under s 18A of the Act for the actions of either Dr Wilson or Dr Jurd. In particular, it submitted that: (a) the Court should accept the evidence of both Dr Wilson and Dr Jurd that they were not College employees; and (b) nor should the Court find that either of them was an agent of the College in the sense of having an authority or capacity to create legal relations with third parties on behalf of the College. The College accepted that both Dr Wilson and Dr Jurd in their respective capacities as supervisor and director of training were performing functions within the training program developed by the College but that was insufficient to establish agency, so the College submitted. That is because the College did not specifically authorise or direct the conduct of either Dr Wilson or Dr Jurd and neither of them had authority to bind the College. In oral submissions, the College drew attention to the fact that the mid-rotation report prepared by Dr Wilson was not provided to the College and was prepared for the purpose of providing feedback to Dr Maiocchi. The College drew attention to Dr Maiocchi’s entitlement under cl 14.3 of the Regulations for Dr Maiocchi to appeal any adverse decision made by Dr Wilson or Dr Jurd in the performance of their functions. [325] The College submitted that s 18A(2) of the Act would apply to absolve it of any liability because the effect of that provision is that vicarious liability does not arise to an act done by an employee or agent if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. In support of this submission the College relied upon its written policy against the bullying and harassment of a trainee, of which Dr Wilson and Dr Jurd must have been aware. [326] In any event, the College submitted that event if its submissions above were rejected, Dr Maiocchi was not entitled to damages because: (a) there is no evidence which demonstrated that, but for any unlawful discrimination, Dr Maiocchi would have successfully completed her psychiatrist’s training program; and (b) Dr Maiocchi has failed to establish that any of the conduct of which she falls within the Statement of Issues caused any of her loss because that loss was attributable to her failure to participate in the professional performance assessment which led to her medical registration being cancelled. Dr Wilson’s closing submissions summarised Page 40 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [327] It is sufficient to summarise Dr Wilson’s submissions in very broad terms. That is to avoid repetition because, as will shortly emerge, I substantially agree with his contentions (as, indeed, I do with the submissions made on behalf of both the College and Dr Jurd). [328] In response to Dr Maiocchi’s claim against Dr Wilson that his conduct amounted to direct discrimination contrary to s 9 of the Act, Dr Wilson submitted there was no evidence that he took the steps raised against him in the Statement of Issues (ie preparing the mid-rotation report dated 23 March 2010 and the content of his letter of complaint), by reason of Dr Maiocchi’s race or ethnic origin or migrant status. [329] To the extent that a case of indirect discrimination was also pressed against Dr Wilson, Dr Wilson emphasised that Dr Maiocchi had failed to identify any requirement or condition imposed on her by him with which she could not comply and which was not reasonable in all the circumstances. [330] Detailed submissions were made by Dr Wilson in support of these contentions by reference to parts of both the mid-rotation report and his letter of complaint. [331] Dr Wilson made submissions which were critical of Dr Maiocchi’s credit, with particular reference to her acceptance in cross-examination that some of the matters raised by her in her complaint to the Commission were without foundation. [332] Dr Wilson made submissions concerning the operation of s 18A of the Act, and the absence of causation so as to give rise to any liability to pay damages. He opposed Dr Maiocchi’s request that her affidavits be accepted as evidence notwithstanding that the Court ordered that she, Dr Wilson and Dr Jurd were to give their evidence orally. Closing submissions of Dr Jurd and the State of NSW summarised [333] For similar reasons to those given in respect of Dr Wilson, it is sufficient to outline the closing submissions of these two respondents in very broad terms so as to avoid undue repetition because, substantially, the submissions are reflected in my reasons below for rejecting Dr Maiocchi’s claims. [334] In broad terms, those submissions were to the effect that: (a) no admissible evidence supported the relevant claims made by Dr Maiocchi in [4] and [6] of the Statement of Issues that Dr Jurd had contravened s 9 of the Act. Emphasis was placed upon the fact that Dr Maiocchi never put to Dr Jurd that the actions taken by him against her of which she complained were based on any of the attributes as set out in s 9; (b) Dr Maiocchi carried the onus of establishing unlawful discrimination and the Briginshaw standard applied; (c) the Court should accept Dr Jurd as a witness of truth, including his evidence that the steps taken by him during the period February to May 2010, including the remediation plan, were aimed at assisting Dr Maiocchi to complete her basic training and were not in any way based on an attribute in s 9; (d) the Court should find that Dr Maiocchi was not a credible witness, was often non-responsive and gave evidence which she thought would assist her case; and (e) based on the unchallenged expert witness of Dr Samuels as to the importance of a high level of proficiency in written and oral English in psychiatry, the remediation plan was reasonable and had a logical and understandable basis. This evidence was also supported by Professor Hopwood. Determination of Dr Maiocchi’s claims [335] It is desirable to first set out some of the relevant statutory provisions and briefly to analyse relevant caselaw. Generally speaking these matters were not disputed. (a) Relevant legislative provisions. [336] In her opening address Dr Maiocchi confirmed that she complained of both direct and indirect discrimination. It is convenient to set out the entirety of s 9 of the Act, which deals with these kinds of discrimination in s 9(1) and (1A) respectively, as well as s 18A, which deals with vicarious liability. 9 Racial discrimination to be unlawful (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. (1A)Where: Page 41 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 (a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and (b) the other person does not or cannot comply with the term, condition or requirement; and (c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin. (2) A reference in this section to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of a kind referred to in Article 5 of the Convention. (3) This section does not apply in respect of the employment, or an application for the employment, of a person on a ship or aircraft (not being an Australian ship or aircraft) if that person was engaged, or applied, for that employment outside Australia. (4) The succeeding provisions of this Part do not limit the generality of this section. 18A Vicarious liability (1) Subject to subsection (2), if: (a) an employee or agent of a person does an act in connection with his or her duties as an employee or agent; and (b) the act would be unlawful under this Part if it were done by that person; this Act applies in relation to that person as if that person had also done the act. (2) Subsection (1) does not apply to an act done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing the act. (b) Analysis of relevant caselaw [337] I accept the respondents’ submissions that Dr Maiocchi carries the onus of proof and that the standard is the civil standard as informed by the Briginshaw standard to reflect the seriousness of her allegations. [338] As to Dr Maiocchi’s claims of direct discrimination under s 9(1) of the Act, it is evident from authorities such as Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 ; (2014) 221 FCR 86 (Iliafi) at [44] per Kenny J (with whom Greenwood and Logan JJ agreed), that Dr Maiocchi needed to establish that: (a) either or both Dr Wilson or Dr Jurd did an act; (b) the act: (i) involved a distinction, exclusion, restriction or preference; which was. (ii) based on race, colour, descent or national or ethnic origin; and (c) the act: (i) had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of Dr Maiocchi’s, (ii) that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life. [339] For the purposes of s 9, it is important to focus on the established meaning of the phrase “an act … based on …”. In Wilson, Heerey J made the following relevant observations on that phrase at [40]: This expression was considered by the South Australian Full Court in ALRM v South Australia (1995) EOC 92–759 at Page 42 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 78,634. That case was concerned with the appointment of the Hindmarsh Island Royal Commission. Doyle CJ (with the concurrence of Bollen J) said: … I am of the opinion that the appointment of the Royal Commissioner is not made unlawful by s 9 of the Racial Discrimination Act. In my opinion that section is not attracted unless an act (the relevant act being the appointment of the Royal Commissioner) is done which in fact produced a distinction on the base of race (which has occurred here because the inquiry is into and affects Aboriginal beliefs only) and the existence of that racial distinction is the basis of the relevant act in the sense that the act occurred by reason of or by reference to the racial distinction. This does not mean that the inquiry is one as to motive. The inquiry is into whether the racial distinction is a material factor in the making of the relevant decision or the performing of the relevant act. [340] Accordingly, the concept of “based on” requires that there by a form of causal relationship between the matters which influenced the relevant respondents to act as they did and the act itself. This does not require that there be a strict causal nexus, however, as the College submitted, Dr Maiocchi must show a close relationship between the designated characteristic and the impugned conduct (see Macedonian Teachers Association at 33 per Weinberg J). [341] As to Dr Maiocchi’s claims of indirect discrimination under s 9(1A), she needed to show that: (a) either or both Dr Wilson or Dr Jurd imposed a term, condition or requirement on her; (b) the term, condition or requirement was not reasonable in the circumstances; (c) she did not or cannot comply with the term, condition or requirement; and (d) the term, condition or requirement has the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as Dr Maiocchi, of any human right or fundamental freedom in the political, economic, social, cultural or other field of public life (see Iliafi at [45] per Kenny J (with whom Greenwood and Logan JJ agreed)). [342] There are four further points to note regarding Dr Maiocchi’s claims relating to indirect discrimination, namely: (a) it is essential that the relevant term, condition or requirement which forms the subject of the complaint be precisely identified (see Waters v Public Transport Corporation [1991] HCA 49 ; (1991) 173 CLR 349 at 393 per Dawson and Toohey JJ and at 406 per McHugh J); (b) there may be an issue as to whether s 9(1) and (1A) are mutually exclusive (see, for example, Sackville J’s remarks in Wilson at [73]), but it is unnecessary to resolve that debate here); (c) in relation to what is “reasonable” for the purposes of s 9(1A), the test is less demanding than one of necessity, but more demanding than one of convenience and the Court’s task is to weigh the nature and extent of the discriminatory effect of the relevant term, condition or requirement against the reasons advanced in favour of its imposition (see Wilson at [47] per Heerey J). “Reasonable” in this context refers to a term, condition or requirement “that is dictated by reason and rationality” even though it is not necessarily one with which all people or even most people agree (Wilson at [53] per Heerey J); and (d) while the “right to work” and “free choice of employment” are protected rights under Art 5 of the Convention and, therefore a “human right or fundamental freedom” for the purposes of s 9(1) as required by s 9(2) of the Act, doubt has been expressed as to whether the right to practise medicine on an unrestricted basis is a “human right or fundamental freedom” (see Wilson at [74] per Heerey J). For reasons which will shortly emerge, it is also unnecessary to resolve that issue here. (c) Application of these principles to the evidence here [343] It is convenient to apply those general principles, where relevant, to the particular facts and circumstances of this case. I shall first address Dr Maiocchi’s claims against Dr Wilson before addressing the claims against Dr Jurd and, finally, the College. For the reasons which follow, I find that Dr Maiocchi has failed to establish any of her claims as defined and confined by the Statement of Issues. (i) Claims against Dr Wilson [344] As noted above, Dr Maiocchi’s claims against Dr Wilson regarding the alleged contravention of s 9 of the Act related to three matters, namely: (a) the mid-term evaluation report which Dr Wilson prepared and adopted; Page 43 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 (b) his request to Dr Jurd that Dr Maiocchi be subject to a remediation plan; and (c) Dr Wilson’s allegations of unsatisfactory performance by Dr Maiocchi as set out in the letter of complaint. [345] For the following reasons, I consider that Dr Maiocchi has failed to discharge her burden of demonstrating that these acts by Dr Wilson were “based upon” her national or ethnic origin or migrant status or that such acts had the purpose or effect of impairing Dr Maiocchi’s human rights. [346] Dr Maiocchi’s claims that the mid-term rotation report manifested Dr Wilson’s prejudice against her because of her national or ethnic origin were primarily based upon the following three matters: (a) Dr Maiocchi’s claim that, prior to that report, the evaluations of her work and of her communication skills were positive and she was well on track to achieving her College Fellowship. Accordingly, the report could only have been motivated by Dr Wilson’s racial prejudice against her; (b) Dr Wilson’s reaction and comments following Dr Maiocchi’s interview with KS manifested Dr Wilson’s perception of Dr Maiocchi as “intrinsically different from and alien to him”; and (c) from 9 March 2010, Dr Maiocchi alleges that she was working in a “toxic environment” at the Northside Clinic and had no chance of passing the term. She claims that this was the date on which she was told by Dr Wilson that he would propose a remediation plan for her. [347] In my view there is a sufficient objective and plausible basis for Dr Wilson’s comments in the mid-rotation report relating to matters which were impeding Dr Maiocchi’s progress at the Clinic, which matters are unrelated to Dr Maiocchi’s national or ethnic origin. [348] The report is written on a standard form. The introduction to the report refers to reg 7.1(i) and a supervisor’s responsibility to provide a trainee with “formative feedback on your progress, half-way through each rotation, which shall be used to identify your strengths and weaknesses as well as your progress towards the training objectives for the rotation”. The standard form also records that the supervisor has a discretion to prepare a mid-term rotation report prior to the mid-rotation point if there are concerns regarding a trainee’s progression through the rotation. [349] Dr Wilson assessed Dr Maiocchi’s performance as unsatisfactory in respect of the following five training objectives: (a) competence in psychiatric interviewing and in comprehensive assessment skills, including risk assessments; (b) competence in presenting cases to the team, on call and in supervision; (c) further development of competence working as a member of a multidisciplinary mental health team; (d) professional attitudes including safety, boundaries, consistency, availability, confidentiality, respect, accountability, motivation and commitment; and (e) attitude to supervision. [350] Dr Wilson assessed Dr Maiocchi as being either below expectation or meeting expectation in respect of the remaining training objectives. He also commented that Dr Maiocchi’s areas of particular strength were “Diligence with self-directed research to improve knowledge base” and “Endeavouring to have a thorough & professional attitude”. The areas which needed further development according to Dr Wilson related to Dr Maiocchi being “defensive and adversarial in supervision” and being “very poor in accepting feedback”; her patient interviewing demonstrated “disturbing judgement errors” and her “communication skills in both expression & comprehension are dramatically below the required level to practise psychiatry”. [351] In circumstances where Dr Wilson considered that Dr Maiocchi had not shown satisfactory progress to date, Dr Wilson recommended that a further remediation process be developed with Dr Jurd, with a substantial focus on communication, understanding and attitude. Dr Wilson signed the report and made an express declaration that the information contained therein “was provided in good faith and is considered to be a true reflection” of Dr Maiocchi’s ability. [352] There is no reason to doubt the sincerity of Dr Wilson’s declaration (nor was it ever put to him that his declaration was false). There were numerous incidents involving Dr Maiocchi which provided the foundation for Dr Wilson’s assessment. I do not consider that in proceedings such as these that the Court is the ultimate arbiter of the question of Dr Maiocchi’s clinical competence (or, indeed, that of Dr Wilson or Dr Jurd). Dr Maiocchi plainly disputed Dr Wilson’s judgment and assessment of many of the incidents. In particular, she disputed the seriousness of many of the errors which were attributed to her and she relied upon Associate Professor Greenwood’s report in support of her position. It is important to reiterate, however, that this report was admitted only on a non-hearsay Page 44 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 basis and its author was not called as a witness. Accordingly, there was no opportunity to cross-examine him on his report. That is to be contrasted with Dr Wilson and Dr Jurd, both of whom were cross-examined. Furthermore, Dr Maiocchi elected not to cross-examine on the written evidence of both Professor Hopwood and Dr Samuels. [353] It should also be noted that, while Associate Professor Greenwood was briefed with some of the written materials which were also in evidence in the proceedings, much more extensive evidence was available to the Court, including the opportunity to assess the evidence of witnesses such as Dr Maiocchi and Dr Wilson and Dr Jurd. Associate Professor Greenwood did not have that opportunity. His report was based entirely on the papers which were briefed to him. Furthermore, it is significant to note that his report was written in a different context, being one which ultimately related to the issue whether Dr Maiocchi was guilty of unsatisfactory professional conduct in refusing to participate in the performance assessment which was arranged to take place in late 2011. For all these reasons, I give little weight to Associate Professor Greenwood’s views. [354] Having regard to the nature of the proceedings here (which are not the equivalent of an appeal or review under cl 14.3 of the Regulations), it seems to me sufficient to focus on the question whether or not there was a reasonable or plausible clinical basis which is unrelated to Dr Maiocchi’s national or ethnic origin for Dr Wilson’s assessment without ultimately determining whether these assessments were clinically right or wrong. These matters fall to be determined by reference to evidence which was admitted in the proceedings. As noted above, Dr Maiocchi urged the Court to treat as evidence all the affidavits sworn by her in the proceedings, her statements from the Bar table and the contents of many documents which were admitted into evidence only on a non-hearsay basis. I consider that that would be an entirely inappropriate course to take, substantially for reasons which were advanced by the respondents in opposing Dr Maiocchi’s submissions to the contrary. [355] In my view, the following incidents provide a reasonable and plausible basis for Dr Wilson’s assessment of Dr Maiocchi as reflected in the mid-term evaluation report he prepared: • Dr Maiocchi had made various medication errors, including failing to chart regular medications and failing to keep medication charts up to date. For example, Dr Maiocchi misunderstood Dr Wilson’s instruction that she transfer KS’s pathology results to ECT forms and instead understood the instruction was that she order blood tests. There was also the incident of Dr Maiocchi prescribing immediate-release Seroquel in respect of patient LB instead of the slow-release form of that drug; • Dr Maiocchi had communication difficulties with consultants, nursing staff and patients, a subject which was raised by Dr Wilson with Dr Maiocchi during the course of her supervision on 16 March 2010; • she was told by Dr Wilson during the supervision on 16 March 2010 that she needed to see patients at least twice weekly and to see category 4 patients on a daily basis and, because of their priority, early in the day; • there were concerns that Dr Maiocchi was not reading patient notes after individual patients had been seen by the consultant in circumstances where that was the manner in which consultants often communicated with registrars; • on 15 March 2010, Dr Maiocchi misread SM’s pathology results and placed that patient on severe fluid restrictions until Dr Harper pointed out the error; and • on 16 March 2010, Dr Maiocchi told patient KS, who suffered body disturbance issues, that she was “chubby”, which alarmed Dr Wilson. [356] For the following reasons, I reject Dr Maiocchi’s claims regarding the significance of her previous evaluations and past progress towards College Fellowship. It may be accepted that Dr Maiocchi demonstrated sufficient communication and language skills for the purposes of her various professional qualifications, including her Master’s degree. As Dr Jurd pointed out, however, this does not mean that her competency in these areas was sufficient for the purposes of her becoming a qualified psychiatrist. The particular communication and language skills required of such a person were fully described by Dr Samuels and Dr Jurd, as well as Dr Wilson. Their evidence should be accepted. It might be noted that the certificate of completion from Wyong Hospital was signed by Dr Furst, whose comments are set out at [73] above. This form was read by Dr Jurd in his capacity as director of training and signed by him on 15 January 2008, ie well before the events which occurred at Northside Clinic. [357] There is a long history of Dr Maiocchi being told that there were difficulties with her English communication and accent, dating back as far as 1 July 2005 when she received a certificate of completion from Sutherland Hospital, which noted a need for her to improve her English communication skills. Similar remarks were made in various other certificates of completion and mid-rotation reports from other Hospitals, including: • the certificate of completion dated 5 July 2006 from Greenwich Hospital; • the certificate of completion dated 8 January 2007 from RNS Hospital; Page 45 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 • the certificate of completion dated 2 July 20078 from RNS Hospital; • the certificate of completion dated 15 January 2008 from Wyong Hospital; • the certificate of completion dated 4 December 2008 from Macquarie Hospital; • the certificate of completion dated 17 July 2009 from Ryde Hospital; • the mid-rotation report dated 31 April 2009 signed by Dr Bradley; and • the mid-rotation report dated 22 October 2009 signed by Dr Russell. [358] Previous evaluations which identified the need for Dr Maiocchi to improve her interaction with multi- disciplinary teams include: • the certificate of completion dated 12 January 2006 from Sutherland Hospital (which identified this as a primary area requiring further development); • the certificate of completion dated 4 December 2008 from Macquarie Hospital (in which it was identified as the first of three areas requiring further development); • the mid-rotation report dated 22 October 2009, in which Dr Russell noted that the primary area requiring further development by Dr Maiocchi was “stress management — dealing with some colleagues who don’t share her values & attitudes”; and • the certificate of completion dated 7 January 2010 from RNS Hospital. [359] As noted above, Dr Maiocchi was also informed on various occasions that she had to improve her medical and psychiatric knowledge base. This was noted in: • the certificate of completion dated 15 January 2008 from Wyong Hospital; • the mid-rotation report dated 16 September 2008 signed by Dr Gregory McLean; and • the certificate of completion dated 4 December 2008 from Macquarie Hospital. [360] Although Dr Maiocchi correctly pointed out that she had passed her two case histories, this does not establish that she had a sufficient level of English proficiency for the purposes of her College Fellowship. I accept Dr Jurd’s explanation in his oral evidence that this demonstrated Dr Maiocchi’s communication skills were adequate for the purpose of her written exams, however, the clinical exams required a higher level of oral communication which Dr Jurd described as “a very difficult hurdle” for Dr Maiocchi. Dr Jurd’s assessment should be accepted. It is supported by Dr Samuel’s unchallenged evidence as to the importance of communication skills in psychiatry. It was also evident at various times during the course of the hearing that Dr Maiocchi did experience difficulties with her English communication and comprehension. There were numerous occasions on which she appeared to have difficulty in understanding questions which were put to her and needed to have them repeated. She also displayed some difficulty in providing responsive answers to many questions and the questions she posed for witnesses during cross-examination were often obscure and poorly expressed. I fully appreciate that Dr Maiocchi was under considerable stress as a litigant in person during much of the hearing. This serves to underline the fact, however, that when she is under stress her communication and language skills deteriorate. This was Dr Jurd’s assessment and I agree with it. [361] Other evidence confirms that Dr Maiocchi’s progress through her psychiatry training was not free from difficulties. This is reflected, for example, in the fact that: (a) although she commenced her three year basic training in 2005, by April 2010 she was still to complete that basic training and move to her advanced training; (b) approximately two-thirds of registrars pass the written exams on their first attempt, whereas Dr Maiocchi only passed on her third attempt; and (c) Dr Maiocchi was still to sit the clinical exams which, as Dr Jurd stated, would be “a very difficult hurdle” for her given the requirements for clear thinking and clear, concise communication. [362] As to Dr Maiocchi’s use of the word “chubby”, I do not consider that the fact of Dr Maiocchi’s ethnic or national origin was a material factor in Dr Wilson’s reaction. It is unnecessary to determine whether or not KS actually suffered from anorexia nervosa because the evidence is clear from KS’s medical notes that she had body image disturbance and had made statements such as “I feel disgusting” and “I feel really big at the moment”. Dr Page 46 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 Wilson’s comment to Dr Maiocchi to the effect that “I don’t know if this is a cultural difference or what it is, but that’s so not okay” does not demonstrate racial prejudice on his part. Rather, I see that comment as Dr Wilson endeavouring to understand how Dr Maiocchi could have used such an inappropriate expression. It was the fact that Dr Maiocchi used that word which was the material factor in the actions which then ensued, not the fact that Dr Maiocchi was a migrant from Argentina. [363] In support of her claim that she was experiencing a “toxic work environment” at the Northside Clinic, Dr Maiocchi relied in part on her claim that during her supervision with Dr Wilson on 9 March 2010, he threatened her career and told her that he was organising for her to be placed into a remedial. In my view, the evidence does not support these claims. Dr Wilson denies that he made any mention of a remediation plan during the 9 March 2010 supervision. There is no contemporaneous written document which supports Dr Maiocchi’s claim to the contrary. Significance must attach to the fact that despite Dr Maiocchi’s numerous complaints to various institutions and people (including the Australian Medical Association, the College, the Commission and the NSLHD), Dr Maiocchi never mentioned that Dr Wilson had told her on 9 March 2010 that he intended to place her into a remedial or otherwise threatened her career. I have no doubt that Dr Maiocchi was finding her time at the Northside Clinic to be stressful and demanding, not the least because of some of the incidents in which she had been involved which caused concern to other professionals but, as noted above, I consider that there was a plausible and reasonable objective basis for those concerns. [364] The evidence indicates that Dr Maiocchi had difficulty in accepting feedback from Dr Wilson almost right from the beginning of her traineeship at the Northside Clinic and that this affected their relationship. This falls far short, however, of demonstrating that Dr Wilson’s interactions with Dr Maiocchi were driven by racial prejudice on his part. As I have emphasised above, that proposition was strongly denied by Dr Wilson and it was never directly put to him in cross-examination that his denials were false. Those denials should be accepted. [365] It is convenient to now turn and address Dr Maiocchi’s claims against Dr Wilson by reference to the contents of his letter of complaint. [366] The first thing to note about the detailed letter of complaint is that it was written in response to a request from Dr Jurd and following the decision which had been arrived at on 11 May 2010 by Dr Jurd, Dr Lyndon and Dr Wilson that Dr Maiocchi be permitted no longer to work at the Northside Clinic. [367] Secondly, Dr Maiocchi’s claims of racial discrimination by Dr Wilson related primarily to those aspects of the letter of complaint which dealt with the incidents involving Dr Maiocchi and patients BM and KS. For the following reasons, I consider that there was a reasonable and plausible objective basis for Dr Wilson’s comments regarding Dr Maiocchi’s dealings with those two patients. [368] As to patient BM, Dr Maiocchi strongly disputed Dr Wilson’s claim that BM was delirious. As noted above, in proceedings such as this, it is not the Court’s task to rule upon the clinical judgment or competency of Dr Wilson. The critical issue is whether his description and assessment of the relevant events involving Dr Maiocchi has a plausible and objective basis and is inconsistent with the claim that he was racially prejudiced against Dr Maiocchi. [369] I am not satisfied that Dr Maiocchi has established that BM was not delirious on 7 May 2010 in circumstances where: (a) Dr Wilson consistently maintained that she was and he had examined BM on that day, whereas Dr Maiocchi had not; (b) Dr Wilson’s contemporaneous written notes of BM as recorded on 7 May 2010 are consistent with BM being delirious; and (c) Dr Wilson’s actions on 7 May 2010 in ordering investigations into BM’s condition and ordering on 10 May 2010 that she undergo an MRI are also consistent with Dr Wilson’s diagnosis. [370] Nor am I satisfied on the evidence that Dr Maiocchi has discharged her burden of establishing that Dr Wilson had written to her about BM in the communication book. I accept that the communication book is no longer available but I cannot accept Dr Maiocchi’s claims that Dr Wilson wrote in it in circumstances where: (a) it was not his practice to use the communication book to pass messages to a registrar; and (b) the evidence establishes that Dr Wilson normally gave instructions to Dr Maiocchi concerning BM by making entries in her patient notes. [371] Dr Maiocchi also complained that Dr Wilson inaccurately stated in his letter of complaint that, during the supervision session on 11 May 2010, Dr Maiocchi showed that she did not understand the seriousness of BM’s low sodium level and that this was inconsistent with her treatment of BM the previous day. I find that Dr Wilson’s description of these matters has a reasonable and plausible basis because: Page 47 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 (a) I accept his evidence that on 11 May 2010 and in the course of the discussion of BM’s low sodium level Dr Maiocchi had said to Dr Wilson that a sodium result of 120 mmol/L “was just the limit to order a consult”. Dr Wilson made a contemporaneous note of this remark because he was so surprised by it. It was never put to Dr Wilson that the note was a fabrication; and (b) there is also a reasonable and objective basis for Dr Wilson’s criticisms of the adequacy of Dr Maiocchi’s treatment plan for BM’s low sodium, particularly its lack of specification of the level of fluid restriction, the omission to provide for repeat blood tests or to arrange a review of BM by a physician. [372] Dr Maiocchi’s criticisms of Dr Wilson’s reference in the letter of complaint to her being subject to a performance management system at Northside Clinic does not establish racial discrimination on his part in circumstances where, although Dr Wilson had no personal involvement in that process, there existed an acceptable rationale for his belief, including Dr Wilson’s receipt of an email dated 23 March 2010 from Dr Lyndon who informed him that Dr Lyndon and the NUM would be addressing concerns about Dr Maiocchi through “the Clinic’s channels (called Performance Management)”. [373] Contrary to Dr Maiocchi’s claims, I do not consider that it was unreasonable or wrong of Dr Wilson to make reference in his letter of complaint to the “chubby” incident involving KS. On the contrary, it would have been a remarkable oversight on Dr Wilson’s part not to have made mention of this incident when he was responding to a request from Dr Jurd that he reduce to writing the concerns which he had about Dr Maiocchi. [374] Dr Maiocchi was also critical of what Dr Wilson said about patient KG in the letter of complaint. Dr Wilson said that there was a high degree of suspicion that Dr Maiocchi did not conduct sufficient assessment of new patients she admitted, including KG. He recorded that the patient had told him that the admission process conducted by Dr Maiocchi had been done in less than 10 minutes when normally it should take at least one hour. Dr Wilson confirmed that the nursing staff confirmed the short amount of time taken by Dr Maiocchi in admitting the patient and also that regular medications had not been charted on the patient’s admission documents. Dr Wilson recorded that he had raised these and other concerns with Dr Maiocchi regarding her admission of KG and that she had entirely denied them. In cross-examination Dr Maiocchi accepted that she had failed to record relevant information on KG’s patient record. In her interview with the Commission in March 2011, Dr Maiocchi stated that she should have included more in her mental state examination of KG about KG’s behaviour during the admission interview. In cross-examination in the proceeding, Ms Horvath asked Dr Maiocchi whether she stood by her evidence to the Commission to the effect that she should have included more information about KG in the admission documents, to which Dr Maiocchi responded affirmatively. [375] Dr Maiocchi also challenged the accuracy of Dr Wilson’s reference in his letter of complaint to her being “largely unaware that there were different formulations of medications” and his reference to patient LB as having suffered a presyncopal episode after being given the wrong form of Seroquel. Dr Maiocchi has not established that this aspect of the letter of complaint was driven by racial prejudice on Dr Wilson’s part. The essential fact remains that Dr Maiocchi did not dispute that she had mischarted the proper medication. [376] For all these reasons, I find that Dr Maiocchi has failed to establish to the relevant standard the allegations made against Dr Wilson under s 9 of the Act. It is not entirely clear that Dr Maiocchi pressed any complaint of indirect discrimination against Dr Wilson. Any such claim should be rejected, not the least because Dr Maiocchi failed to identify any requirement or condition imposed upon her by Dr Wilson with which she could not comply which was not reasonable in all the circumstances. (ii) Claims against Dr Jurd [377] As noted above, the claims against Dr Jurd related to: (a) his preparation and adoption of the second remediation plan; (b) his alleged uncritical acceptance of the contents of the letter of complaint; and (c) his involvement in the decision to terminate Dr Maiocchi’s clinical privileges at the Northside Clinic. [378] I unreservedly accept Dr Jurd’s evidence that his decision to implement the second remediation plan for Dr Maiocchi was not motivated by any consideration of her national or ethnic origin but was instead intended positively to assist Dr Maiocchi progress further in her traineeship. In deciding to implement the plan, Dr Jurd took into account the information included in the mid-term rotation report, Dr Jurd’s own experience of Dr Maiocchi during the first remediation which occurred in May 2009, other information he had received in relation to Dr Maiocchi and his personal interactions with her. As noted above, it was not put to Dr Jurd that his evidence in this respect (or, indeed, in any other respect) was false. Putting that matter to one side, however, I reiterate that I found Dr Jurd to be a most impressive and truthful witness and I accept all of his evidence without qualification. Page 48 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 [379] I reject Dr Maiocchi’s claim that Dr Jurd uncritically evaluated the letter of complaint. Dr Jurd denied this claim and his denial was not directly challenged in his cross-examination as being false. Similarly, Dr Jurd expressly denied that his initial decision on 11 May 2010 to withdraw Dr Maiocchi’s clinical privileges was based on a relevant attribute under s 9 of the Act. Again, this denial went unchallenged. I accept Dr Jurd’s denial. [380] His denial is also supported by additional objective evidence which is inconsistent with the claims that the three relevant matters manifested racial discrimination on his part. I find that the purpose of the remediation plan was to assist Dr Maiocchi to progress in her traineeship by addressing issues which had been identified by Dr Wilson, Dr Lyndon and Dr Jurd. The remediation plan itself records its objectives as including having Dr Maiocchi continue her study of English and address spoken language skills, as well as moderate her accent so as to improve her verbal communication. Dr Jurd confirmed in his oral evidence that the purpose of the remediation plan was to enable Dr Maiocchi to finish her term successfully at the Northside Clinic and subsequently become a good psychiatrist. [381] I also accept Dr Jurd’s evidence regarding the importance of psychiatric patients being able to communicate effectively with a psychiatrist and his concerns that less-educated and less intelligent people might have difficulties with Dr Maiocchi’s accent in circumstances where Dr Jurd himself experienced such difficulties. Dr Jurd’s evidence on this subject is supported by the evidence of Dr Samuels and it also conforms with the Court’s own impressions of Dr Maiocchi’s communication and language skills as manifested during the course of the hearing. Significantly, Dr Maiocchi herself acknowledged during the hearing that she agreed with Dr Jurd’s view “that when I am stressed, my English deteriorates”. Although Dr Maiocchi claimed that Dr Jurd had referred to South Americans as “pugnacious” during the meeting between them on 13 April 2010, she ultimately accepted in cross-examination that he had made no such statements about South Americans generally. I accept the submission made on behalf of Dr Jurd that that meeting was a difficult one, but that he was motivated by a desire to help Dr Maiocchi by improving her communication skills and improve her working relationship with Dr Wilson so she could successfully complete her term at the Clinic. I have no hesitation in concluding that Dr Maiocchi’s ethnic or national origin or migrant status was not a material factor in any of Dr Jurd’s actions in respect of her. [382] No particular significance attaches in these proceedings to the fact that the second remediation plan was finalised without any input from Dr Maiocchi herself, which was contrary to the College’s protocols, or that Dr Jurd did not have all the medical records before him when he prepared the plan. I accept Dr Jurd’s evidence which was to the effect that ideally Dr Maiocchi ought to have been involved but that matters proceeded as they did because of the serious dissatisfaction at the Clinic with Dr Maiocchi’s progress and the need to implement a plan expeditiously in order to preserve Dr Maiocchi’s prospects of serving out her term at the Clinic. Dr Jurd also explained that he believed that it was important that when he met with Dr Maiocchi he had finalised the remediation plan for her so that she clearly understood its requirements. Furthermore, Dr Jurd explained that he did not expect to receive much meaningful input from Dr Maiocchi regarding the remediation plan because he found her to lack personal insights into her own circumstances. That evidence provides a plausible and acceptable explanation for Dr Jurd’s actions which is inconsistent with him having any racist motive. In particular, there is simply no basis to conclude that Dr Jurd’s non-compliance with College protocols was driven by Dr Maiocchi’s race or ethnic origin or migrant status. [383] As to the absence of medical records, I am not persuaded that this criticism goes anywhere near demonstrating that Dr Jurd was motivated by racial prejudices against Dr Maiocchi. The evidence is clear that Dr Jurd was well aware of the issues concerning Dr Maiocchi. I find that there was a reasonable and sound assessment by Dr Jurd and it was never put to him that his evidence concerning his motives and desires in respect of the remediation plan being intended to assist Dr Maiocchi was untruthful. [384] Similarly, I unreservedly accept Dr Jurd’s evidence as to the steps he took and his reasoning for deciding on 11 May 2010 that Dr Maiocchi’s clinical privileges should be withdrawn. Dr Wilson informed him around that time that he had lost confidence in Dr Maiocchi and was not prepared to have her treat his patients any longer. Dr Jurd spoke to Dr Lyndon at around this time and he was told by Dr Lyndon that the Mood Disorders Unit in the Clinic had lost confidence in Dr Maiocchi. This input caused Dr Jurd to conclude that there was no prospect of Dr Maiocchi continuing at the Clinic under any circumstances. On 11 May 2010 Dr Jurd told Dr Maiocchi that she could not return to work at the Clinic. He subsequently considered the letter of complaint from Dr Wilson. I reject Dr Maiocchi’s allegations that he did so uncritically. I accept Dr Jurd’s evidence that he gave careful consideration to the contents of that letter and also drew upon information which he had received from other professionals, as well as his own personal experience of Dr Maiocchi in confirming the termination of her privileges. I also accept that he conferred with Dr Paton before finalising the letter dated 19 May 2010 which informed Dr Maiocchi that, pending further investigation, her clinical privileges were withdrawn. Dr Paton was the director of clinical governance at the NSLHD and he advised Dr Jurd that a risk assessment should be conducted in relation to Dr Maiocchi with a view to determining whether or not she could safely carry out duties in the public health system. I accept Dr Jurd’s submission that the fact that he conferred with Dr Paton is consistent with him acting professionally and properly considering the issue of whether Dr Maiocchi should remain in clinical practice while a more detailed investigation Page 49 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 was being carried out of the complaints made against her. This was entirely unrelated to Dr Maiocchi’s race or ethnic origin. [385] Dr Jurd advised Dr Maiocchi that she should report to Macquarie Hospital for non-clinical duties until a formal investigation into her clinical work could be completed. All of these matters are inconsistent with the claim that Dr Jurd’s decisions were “based on” Dr Maiocchi’s national or ethnic origin. Not only has Dr Maiocchi failed to establish the burden which she carried but I positively find that Dr Jurd’s actions were not “based on” these or any other relevant attributes for the purposes of s 9 of the Act. [386] Finally, Dr Jurd expressly rebutted in cross-examination: (a) that he ever said to Dr Maiocchi that he believed South Americans to be pugnacious (a proposition that Dr Maiocchi herself subsequently withdrew); (b) that he ever said that South Americans usually avoid hard work; (c) that he ever said to Dr Maiocchi that he thought South Americans called names; and (d) never told Dr Maiocchi that he thought South Americans were too proud to withstand feedback. [387] I unreservedly accept those rebuttals. [388] To sum up, I make the following additional findings in respect of the claims made against Dr Jurd. First, in his capacity of director of training, Dr Jurd properly relied on feedback which he received from relevant professionals as to Dr Maiocchi’s performance as a trainee, including Drs Wilson and Lyndon. [389] Secondly, Dr Jurd is a highly qualified and experienced medical professional, in relation not only to the requirements of the practice of psychiatry but also as a supervisor of trainees. There is no need to repeat the findings I have made above regarding Dr Jurd’s impressiveness as a witness. [390] Thirdly, I find that Dr Jurd was not motivated, informed or in any way influenced by Dr Maiocchi’s national or ethnic origin in respect of the actions he took which affected her. On the contrary, I find that at all times Dr Jurd was endeavouring to assist Dr Maiocchi to progress through the College’s training program, including by having her act in accordance with the second remediation plan. [391] Fourthly, I consider that all of Dr Jurd’s conduct of which Dr Maiocchi complains was in fact reasonable, professional and objectively well considered. To the extent that Dr Maiocchi pressed her claim against Dr Jurd of indirect discrimination, I find that the requirement that she comply with the second remediation plan was reasonable in all the circumstances and that, in any event, it did not have the effect of impairing any relevant human right of Dr Maiocchi’s. [392] Finally, I find that Dr Jurd performed his role appropriately and with exemplary professionalism. The serious allegations made against him are without any evidentiary foundation. (iii) The College [393] In view of the absence of any adverse findings in respect of Drs Wilson or Jurd, no issue arises as to the College’s vicarious liability for their conduct. The allegations against Drs Wilson and Jurd have not been established. Accordingly, it is unnecessary to consider and determine whether or not the College (or the NSLHD) is vicariously liable for their conduct. Conclusion [394] I do not doubt the sincerity of Dr Maiocchi’s sense of grievance in relation to the matters which have given rise to these proceedings. The Court is not lacking in sympathy for the position in which Dr Maiocchi now finds herself and the severe impact the events have had on her career and personal life. Her frustration and dissatisfaction with the events which resulted in her traineeship failing are genuine. However, having now listened at some length to Dr Maiocchi’s evidence and submissions I am left with an abiding impression that her real grievance lies with the correctness of the clinical judgments and assessments of her colleagues, including but not limited to Dr Wilson. Dr Maiocchi pursued a range of complaints with various bodies and institutions, including complaints of racial discrimination to the Commission. My considered assessment is that Dr Maiocchi has made strained and unsubstantiated allegations of direct and indirect discrimination under the Act. I have no hesitation in concluding that Dr Maiocchi has failed to discharge the burden which she carries of establishing on the balance of probabilities and to the Briginshaw standard her various serious allegations of racial discrimination, I also find that the conduct of which she complains, as specified in the Statement of Issues, does not amount to direct or indirect discrimination for the purposes of that legislation. Accordingly, her application must be dismissed. [395] It is unnecessary, therefore, to rule on other issues, the relevance of which were dependent on Dr Maiocchi making good her claims of racial discrimination against either or both Dr Wilson and Dr Jurd. In particular, it is unnecessary to rule on the relevant submissions of the respondents relating to such matters as the College’s vicarious liability, causation, whether Dr Maiocchi has established any loss which would attract an award of Page 50 of 50 Maiocchi v Royal Australian & New Zealand College of Psychiatrists (No 4), [2016] FCA 33 damages or whether she is entitled to exemplary or aggravated damages. None of these matters arise because the base allegations against both Dr Wilson and Dr Jurd that each of them engaged in conduct which is in contravention of either s 9(1) or (1A) of the Act are, on the evidence, groundless. [396] I can indicate, however, that I have considered each of these additional matters and, if it had been necessary for them to be ruled upon, each of them would have been determined against Dr Maiocchi. On the issue of costs, there was no dispute that they should follow the event. [397] Orders will be made accordingly. Order 1. The originating application filed on 15 June 2012 be dismissed. 2. The applicant pay the costs of the first, second, third and fourth respondents as agreed or assessed. The applicant appeared in person. Counsel for the first respondent: Mr P M Knowles Counsel for the second respondent: Ms P A Horvath Counsel for the third and fourth respondents: Mr J McLeod Solicitors for the first respondent: Moray & Agnew Solicitors for the second respondent: Holman Webb Lawyers Solicitors for the third and fourth respondents: Lander & Rogers End of Document