The Mobbing of Lynette Downe at Nepean Hospital
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Millions of Health Dollars Wasted by Local Health District.
Originally Posted on 16 May 2011 by whistlebloweraustralia
Dr Downe appeals in the Supreme Court against her unlawful
treatment by Sydney West Area Health Service.
Introduction
There appears to be an ongoing lack of accountability, transparency and
governance at Sydney West Area Health Authority as shown by the bullying and
reprisals against Dr Downe, the one doctor who was willing to speak out for the
her patients.
Numbers in brackets in the text below refer to the paragraph numbers in
Justice Rothman’s judgement.
In summary Justice Rothman found that Sydney Area Health Service had acted
unlawfully, and granted injunctive relief to Dr Downe preventing Sydney West
Area Health Service or NSW Health from suspending her indefinitely at their
will. (466). His Honour also found that Dr Downe was an excellent clinician who
was correct to be concerned about the quality of care that was being provided
in her unit.
The Background
Dr Lynette Downe was, and is, the Director of the Nepean Hospital Neonatal
Intensive care Unit. The other neonatologists (baby specialists) were Dr Mark
Tracy, Dr Heather Coughtrey and Dr Jan Klimek. From Dr Downe up the managers
were an Obstetrician Dr John Pardey who was Clinical Director of Woman’s and
Children’s Health, a nurse Maya Drum, a Professor of Nursing Jane Gordon who
was Director of Clinical Operations, and a Master of Health Services Management
(MHSM) Mr Mark Cormack who was Executive Director of Nepean Hospital.
Dr Downe was of the opinion that general paediatricians had no place in
treating babies requiring intensive or special care in a dedicated Neonatal
Intensive care Unit. This view is shared by the specialists in most NSW
Neonatal Intensive Care Units. And yet the management at Nepean Hospital failed
to implement the finding of three external reviews at Nepean Hospital that
supported Dr Downe’s views. Non-medical managers, Mr Cormack in particular,
simply imposed their own views on the Unit in order to placate the
paediatricians (189, 190).
Dr John Pardey insisted that Dr Downe must attend high risk deliveries at
the Nepean Private Hospital. Dr Pardey delivered private patients there and no
doubt they would be reassured to know that a ‘baby specialist’ was on hand at
their deliveries. Dr Downe’s usual medical indemnity insurance, which covered
her as Director of the neonatal intensive care unit at Nepean Hospital where
she was employed, did not cover her at the Nepean Private Hospital (86) where
she was not employed. And her attendance at the Private Hospital was not
required by her employer Sydney West Area Health Service. Dr Downe declined to
attend Dr Pardey’s private deliveries at the Private Hospital. She was employed
full time, at tax payer’s expense, in the public health system by Sydney West
Area Health Service.
That Dr Downe found it difficult to deal with Dr Pardey is shown by Dr
Pardey’s own complaint that Dr Downe refused to meet with him unless her Union
representative was present (A13). Presumably Dr Downe had a right to have a
representative present if she felt she needed one.
In March 2004 the Client Liaison Officer at Nepean Hospital disclosed a
pattern of complaints against Dr Coughtrey from parents of patients in the
Neonatal Unit (170). Shortly after that Mr Mark Cormack suggested and initiated
an external investigation and Report of the Neonatal Unit (the Reynolds Review)
(171, 175). Mr Cormack, however, knowingly allowed the other doctors in the
Neonatal Unit to mistakenly believe that the investigation was initiated by Dr
Downe for the purpose of discrediting Dr Heather Coughtrey (180-184).
Predictably this led to a breakdown of trust between Dr Downe and the other
doctors in the Unit (150, 183).
The Complaints
On the 28 June 2004 Dr Downe wrote a letter to Mr Mark Cormack, Executive
Director of the health service. The letter raised a series of matters that were
said to give rise to a pattern of victimisation of Dr Downe as a result of her
raising genuine concerns about matters of patient safety and medico-legal
issues. (36 – 38)
Unfortunately for Dr Downe she went on two months long service leave three
days later.
Dr Mark Tracy was appointed Acting Director of the Unit while she was away.
Dr Downe believed herself to be on friendly terms with Dr Tracy at this time.
Dr Tracy had asked Dr Downe to be a mentor to his daughter.
On the 17 August 2004, fourteen days before Dr Downe was due to return from
Long Service Leave, Dr John Pardey submitted a formal complaint about Dr Downe.
A flood of complaints followed. Justice Rothman said that “the timing of the
complaints was beyond coincidence” (35). The complaints appeared to have been
coordinated.
The further complaints were from Dr Heather Coughtrey 19 August, Dr Mark
Tracy 23 and 24 August and Professor of Paediatrics Ralph Nanan 25 and 26
August.
Justice Rothman noted a pattern of emails ending on the 16 August, the day
before Dr John Pardey’s formal complaint, between Mr Mark Cormack, the Chief
Executive of Nepean Hospital, and Mr Geoff Murphy of the workplace relations
(Human Resources) department of Sydney West Area Health Service. They were
advising at least one of the ‘complainants’ about how to structure their formal
complaints (35).
The suspension.
Dr Downe was suspended before she could return from long service leave on the
6 September.
Mr Cormack and the Sydney Area Health Service (now the Blue Mountains and
Nepean Local District) used these complaints as a reason to suspend Dr Downe
pending an investigation by the Honourable Russell Peterson SC into the
complaints. Later the suspension was unlawfully continued indefinitely despite
the Peterson Report being overwhelmingly in Dr Downe’s favour (56, 103).
Dr Downe had already felt that she was the victim of a systematic campaign
against her (37).
Sydney West Area Health Service insisted that in the alternative Dr Downe
would be transferred to the Westmead Hospital Neonatal Service where Professor
Tarnow Mordi was Director.
The Terms of Reference for the review were agreed between Dr Downe, the
complainants and Sydney West Area Health Service. It should be noted that an
incorrect and detrimental version of the terms of reference was given to the
Honourable Russell Peterson by Sydney West Area Health Service (40) until this
was belatedly corrected by Dr Downe. Mr Mark Cormack also detrimentally briefed
(prejudiced) Mr Peterson about matters not related to the Terms of Reference
(205).
The correct terms of reference are given at (40) including the complaints
against Dr Downe (A) and submissions in reply by Dr Downe (B).
Sydney West Area Health Service knew that at least one of the allegations
that they made, on oath in court, was false. None of the allegations necessitated suspending Dr Downe (50).
It was clear to Justice Rothman that the Honourable Russell Peterson QC
found that most of the allegations against Dr Downe were not substantiated and
those that were substantiated were minor or inconsequential (56). The finding
of a complete breakdown of relationships between Dr Downe and the other doctors
was spurious and arose from the actions of Mr Mark Cormack and his briefing of
The Honourable Russell Peterson rather than from the facts (150, 184, 205).
Dr Downe’s continuing suspension by Sydney West Area Health Service and the
Department of Health was found to be unlawful (466) and unwarranted (56). In
theory Dr Downe could anticipate a speedy return to her position as Director of
the Neonatal Unit at Nepean Hospital.
Demeanour in Court
His Honour Justice Rothman commented on the demeanour (behaviour) of the
witnesses in Court.
Dr Lynette Downe
“I reiterate that Dr Downe was a person whose evidence I accept for the
reasons set out already and that conclusion applies to all of her evidence and
the conflicts that arise in the evidence” (78). “Dr Downe has exceptional
clinical capacity” (2).
Dr John Pardey
Dr John Pardey was willing to swear (on oath) to the details of a
conversation, but under cross examination Dr Pardey changed his storey and
agreed that the conversation probably never took place. This was consistent
with the general behaviour of Dr Pardey in Court (82).
Justice Rothman accepted that Dr Downe felt intimidated by words used by Dr
Pardey (88).
Dr Jane Gordon
Professor of Nursing Jane Gordon was the Director of Clinical Operations for
Sydney West Area Health Service. Her attitude was to sheet home the blame to Dr
Downe for the breakdown of personal relationships. “In doing so, Professor
Gordon disadvantages Dr Downe”. On the contrary his Honour found that “a very
significant part of the personal relationship breakdown has been caused
directly by management action or lack of action” by Sydney West Area Health
Service. The management’s actions were inappropriate (97).
Professor Gordon expressed the view that the Peterson Report was not in
favour of Dr Downe despite being taken to various findings of the Report
showing that all the complaints were either not substantiated or were
inconsequential (95).
Mr Geoffrey Murphy
Law graduate and health administrator Mr Geoffrey Murphy was the Human
Resources person involved in Dr Downe’s unlawful suspension by Sydney West Area
health Service. Mr Murphy accepted that the findings of the Peterson Inquiry
were overwhelmingly in favour of Dr Downe (103). He accepted that he did not
let other staff involved in the case know of this view.
Ms Maya Drum
Nurse Ms Maya Drum and Paediatric Professor Nanan investigated an allegation
that Dr Downe had said “I have to stop paediatricians from killing babies on
level 4”. Ms Drum recorded that she supported the person making the allegation.
Ms Drum’s note records that “as there were no witnesses willing to take a stand
we have reached an impasse”.
In Court it was shown that not only was there a witness willing to take a
stand, but that witness was willing to give evidence that Dr Downe had NOT said
the words alleged (129). Yet Sydney West Area Health Service persisted in
making this allegation to the Peterson Inquiry and in the Supreme Court.
Justice Rothman considered this behaviour to be inappropriate (131).
Dr Jan Klimek
Dr Jan Klimek said that Dr Downe said at a meeting “Heather (Dr Heather
Coughtrey) is lazy, incompetent and inefficient.” All the Neonatologists except
Dr Coughtrey were present. None of them disagreed with Dr Downe. (133)
Dr Mark Tracy
Dr Mark Tracy had a friendly relationship with Dr Downe. Dr Tracy had asked
Dr Downe to be a ‘mentor’ to Dr Tracy’s daughter. When she went on long service
leave Dr Downe still believed that she had a friendly relationship with Dr
Tracy.
Dr Mark Tracy was appointed Acting Director of the neonatal Unit while Dr
Downe was on long service leave. He continued in that position when Dr Downe
was unlawfully suspended in part due to his own complaints (136).
Justice Rothman found that “Dr Tracy’s evidence in cross-examination was
obfuscatory and his recollection convenient” (137).
While Dr Mark Tracy was in the position of Acting Director he changed the
clinical practice of Dr Downe and allowed general paediatricians to work in the
Neonatal Intensive Care Unit. This was inconsistent with the recommendations of
the independent reviews that had been done and inconsistent with the practice
in other neonatal intensive care units in NSW. This was done at the direction of
Mr Mark Cormack prior to the finalisation of the Peterson Inquiry and prior to
the finalisation of the Reynolds Report (190).
It appears that Dr Tracy acquiesced to a non-medical administrator dictating
medical policy in the unit.
Dr Heather Coughtrey
Dr Heather Coughtrey asserted that she was clinically on an equal footing
with Dr Downe. But Justice Rothman accepted that the evidence proved the
opposite (138).
“During her evidence, Dr Coughtrey sighed in exasperation, rolled her eyes,
did not make eye contact and crossed her arms. She continually shrugged her
shoulders and smirked…. Her demeanour was arrogant in the extreme, her memory
at best convenient and she gave the impression that she was reluctant to give
evidence and very careful to ensure that the minimum information was given, to
the point of being obfuscatory. She was, at times, disparaging and dismissive
of other staff in the answers that she gave in the courtroom” (142).
One of Dr Coughtrey’s complaints against Dr Downe was that she was required
to work 1 day per year extra than she felt she should (165).
“ Dr Coughtrey said she could not remember recent criticisms …(but) when it
became clear that there were notes of the meeting relating to those criticisms,
her memory returned” (143).
“ Unless otherwise accepted by another believable witness, or subject to
independent documentary corroboration, I do not accept Dr Coughtrey’s
evidence.” (143).
Mr Mark Cormack
Mr Mark Cormack was the Executive Director of Nepean Hospital.
“Mr Cormack was a difficult witness. He seemingly deliberately gave evidence
that was ambiguous or misleadingly short” (147).
“Mr Cormack’s actions are at the heart of the dispute between the parties. A
proper analysis of the acceptable evidence attributes to Mr Cormack the
responsibility for the breakdown in personal relationships to the degree that
occurred” (150).
Justice Rothman found that SWAHS was undeserving of trust or belief. “It is
to the discredit of senior management of the Health Service that this matter
was even the subject of a serious investigation. Nevertheless, it was and,
given the role of Mr Cormack, it is understandable that it was” (169).
Justice Rothman found that Mr Cormack knew, and even caused, the mistaken
belief that the other doctors held to the effect that Dr Downe had initiated
the Reynolds Review to discredit Dr Coughtrey (183), and Mr Cormack then had encouraged
them to complain about it, and then had used those complaints to call the
Peterson Inquiry and to suspend Dr Downe (184).
Mr Cormack said that there was a possibility of reprisals against the other
doctors by Dr Downe. “It is an allegation by Mr Cormack” without basis in fact
“of alleged mala fides of Dr Downe, if not her criminal behaviour. Yet it was
contained in an affidavit settled by the Health Service” (145).
His Honour found Mr Cormack’s evidence to be marked by obfuscation and most
unsatisfactory (147).
The outcome
After further obstacles were placed in her path Dr Downe was finally
reinstated functionally as Director of the Neonatal Unit at Nepean Hospital. It
had taken over four years.
Mr Mark Cormack left the Area Health Service to become the Chief Executive
of ACT Health and then the first Chief Executive Officer of Health Workforce
Australia.
Professor Jane Gordon was on the Board of Directors of the College of Nursing
in 2007 and became Director of Nursing Rashid Hospital, Dubai, UAE.
Dr Mark Tracy was promoted by Sydney West Area Health Service to Director of
the Neonatal Unit at Westmead Hospital. Professor Tarnow Modi had not been
reappointed Director.
Dr Jan Klimek transferred to the Neonatal Unit at Westmead Hospital.
Dr Heather Coughtrey remained at Nepean Hospital.
Dr John Pardey remains in private practice and at Nepean Hospital.
Legal issues of Note
A large part of the findings were of legal interest. Perhaps a precedent was
set regarding the misuse of Health Administration Policies for unlawful
purposes. Certainly infinite suspension had been found to be unlawful and Sydney West Area Health Service was found not to have appropriately addressed bullying.
The Australian Salaried Medical Officers’ Federation (ASMOF) NSW was very
concerned that Health Services (now Local Health Districts) simply choose not
to follow their own Health Policies, including their anti-bullying policies,
and did not accord due process to its employees. ASMOF believes that Health
Districts’s Human Resources personnel require training in the notion of
procedural fairness Section 2.2 of Suspension ASMOF submission to NSW
Health.
ASMOF appears to point to Human Resources manager Mr Geoffrey Murphy rather
than Mr Mark Cormack as the main actor in unlawfully continuing the suspension
of Dr Downe.
Many of the issues brought up during the Supreme Court Appeal were rightly
not relevant to the Judgement of His Honour Justice Rothman. These issues still
remain unaddressed by the Nepean and Blue Mountains Local health District (and
its precedent, Sydney West Area Health Service). These issues are still of
public interest. There is still no visible response to, or consequences for,
the unacceptable behaviour and actions of the staff involved. There is still no visible response to unlawful conduct by management, there is still no visible response to
questionable behaviour in Court and there is still no visible response to valid
questions of patient safety, fitness to practice and accountable governance in
Obstetrics, Paediatrics and the Neonatal Unit.
The Cost to the Taxpayer.
According to Natasha Wallace of the Sydney Morning Herald Dr Downe spent almost One Million Dollars on her case. Dr Downe was later awarded costs so Sydney West Area Health Service and the Health Department paid most of her costs in addition to the costs of
the Area Health Services and Dr Downe’s salary during the years she was
unlawfully suspended. This money was unwisely spent. There is an irony in
Sydney West Area Health Services’ alleged Aims and Objectives which include
“Providing a Service that is accountable and value for money” and “Supporting
our skilled workforce”.
The Department of Health noted in their Annual Report 2008 NSW Health Annual Report 2008 pg 241 that His Honour also found there were implied terms of mutual trust and confidence, as well as an implied term of good faith, in Dr Downe’s contract of employment. It is a
sad indictment that his Honour would need to make a finding on an issue that
all doctors would hope they could take for granted. The public would prefer
that NSW Health would base its relationships with doctors on confidence and
good faith.
Postscript.
The systematic campaign to silence Dr Downe and rob her of her career was fully exposed in the judgement of his Honour Justice Rothman in the Supreme Court. But there is little to show that anything has changed since then.
The judgement is discussed in detail because it illustrates a problem
with our health system that needs to be addressed. It is a judicial document in
the public record and is examined as fair comment and is educative of the need
for a public inquiry because the identified problems in the renamed remnants of
the old Sydney West Area Health Service remain unaddressed.
Sydney West Area Health Service has been split into a number of networks
(now called Districts) with new names. Two of the networks that were formed from
the original Sydney West Area Health Service are now called the Nepean and Blue Mountains Local Health District which manages the Nepean Hospital and the Western Sydney Local Health District which manages Westmead Hospital.
The Sydney West Area Health Service spent Millions of dollars in managerial salaries, lawyer’s fees, court costs and damages in a failed and unlawful bid to silence and harm Dr
Downe. Millions of dollars that could have been better spent on caring for patients.
Sydney West Area Health Services was shown to violate its own policies and procedures, to apparently view itself as above the law and to lack transparency and governance. It was
shown to be willing to systematically bully anyone who speaks out.
The judgement of Justice Rothman in the Supreme Court of New South Wales
documents the mobbing of Dr Lynette Downe by the very people who were her
colleagues and by those managers who had a duty of care to protect her. Downe v
Sydney West Area Health Service (No 2) [2008] NSWSC 159 (3 July 2008).
Next Page: The Tarnow Mordi Scandal
John Pardey
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