State loses appeal to ‘psychologically injured’ unaccredited trainee

By Siobhan Calafiore

9 Oct 2023

An unaccredited trainee will receive state compensation for a psychological injury he sustained on his last day of work, after the health district that employed him lost an appeal.

The IMG had been employed by the Western NSW Local Health District (LHD) as an unaccredited trainee in paediatrics and child health at Dubbo Base Hospital in regional NSW under a 12-month contract starting from 29 April 2019.

However, he resigned just six weeks later, notifying the LHD shortly after that he had sustained a psychological injury he described as “burnout” and “depression”.

When his claim was denied, he commenced proceedings in the Personal Injury Commission for compensation (weekly and lump sum) and treatment expenses [link here].

The trainee had graduated with a Master’s degree in paediatrics and worked as a paediatric registrar in India for six years, then worked in his own practice for five years, before arriving in Australia in 2010 and working at a number of hospitals.

He accepted the job offer from Dubbo Base Hospital to work as an unaccredited trainee under a supervised practice plan.

However, he claimed, from commencement of his employment he received only limited orientation and received ongoing criticism and “demeaning, demoralising, ridiculing and humiliating” treatment principally by a senior staff specialist.

He said on occasions he was subjected to racial remarks and bullying by staff.

“I was required to attend a meeting and was accused of performance issues where I was told that my knowledge was below-level and my neonatal skills were ‘just satisfactory’. I felt humiliated and demoralised,” the trainee told the commission.

“I have previously had good performance ratings and I felt completely unvalued and bullied. I felt that I had no alternative but to resign. I was threatened that if I did not resign the hospital would forward a very bad performance report to AHPRA.”

Supervisor testimony

In giving his account of events, the senior staff specialist – who had been on the interview panel when hiring the trainee and had the role of supervisor – described the trainee’s performance and ability on the job as “impaired in almost all areas”.

The supervisor said the trainee had difficulties engaging with the nursing staff, was caught sleeping on shift and struggled to complete his work in a timely fashion.

He said the trainee had been involved in two “near misses” of concern.

The first was a child with a chest infection who received a limited review and was discharged without the trainee performing blood tests or speaking to a consultant.

Over the next 48 hours, the child represented multiple times in a deteriorated state before being transported to a Sydney ICU with septic shock from a urine infection.

The second case was an appendicitis patient, which the trainee along with a surgical registrar failed to diagnose. The patient underwent emergency surgery.

Following these cases, the trainee was placed under additional supervision.

The supervisor said that every two or three days the nursing staff would raise concerns about the trainee and there were complaints he was slow and ineffectual.

After testing the trainee on diagnoses, the supervisor said he found the trainee’s paediatric knowledge and ability to apply common sense “serious lacking” and that he fell short of what would be expected in a “completely functioning doctor”.

The supervisor said it became clear the trainee had serious mental health issues, which resulted in the mental health team admitting him to the psychiatric ward.

After a series of meetings, the trainee was placed on an Improving Performance Action Plan, but only a week later – after more complaints – the trainee was told there was a mismatch between job expectations and the work he was doing.

He was told to resign or he would be stood down, according to multiple people who attended the meeting.

The trainee told the commission if he was as incompetent as asserted by the senior staff specialist, it was difficult to see how he had performed without a single complaint at his previous hospitals.

He also said it was unfair to blame him for the appendicitis case when the parents weren’t willing to admit the child and the surgical registrar, whose team were required to diagnose and admit the patient, was not concerned about the child.

Blaming him highlighted the mistrust and humiliation he had received, he said.

A member of the commission who heard the case said the actions of the State of NSW (Western NSW Local Health District) in relation to the trainee’s performance appraisal and discipline were unreasonable, particularly during the final meeting.

The member accepted the submission that being in charge of a hospital requires stringent standards to be applied, particularly in the area of paediatric medicine.

However, they added that the consideration must be dealt within the context of the respondent being employed as a trainee, who required significant supervision.

The member also pointed out that the trainee’s employment only lasted six weeks, and the time between implementing an action plan for improvement and suggestions to resign occurred within a matter of days.

The State of NSW (Western NSW Local Health District) was ordered to pay the trainee’s weekly compensation at the maximum weekly entitlement from July 2019 until September 2021 as well as any reasonably necessary treatment expenses.

It appealed the decision, arguing that the member erred by considering that the respondent was a trainee with little experience rather than a practitioner with lengthy experience and also failed to give consideration to the urgency that was required by the health district to prevent “life-endangering actions and omissions”.

However, the arguments in the appeal were rejected and the decision upheld.

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