Discussion – Notice of Suspicion of unfitness for duty on medical grounds; Section 8.3 Police Service Administration Act 1990 (Qld)

One of the matters Queensland Police officers regularly contact me about is the good old ‘Notice of Suspicion of unfitness for duty on medical grounds’. For those who are not familiar with what I’m referring to, section 8.3 of the Police Service Administration Act 1990 (Qld) gives the Commissioner of Police certain powers if he suspects on reasonable grounds that you are unfit for duty. This provision can be used to gain further medical information to assist your return to work, to form a suitable duties plan, or to initiate the medical retirement or career transition process. It’s important to remember that if you are served with one of these Notices, you are certainly not going through it alone – you’re not Robinson Crusoe. These Notices are handed out like Oprah hands out cars, and often done so prematurely and/or unjustifiably. The legislation (in part) is provided below, and I will discuss this further.

Section 8.3

(1) If the commissioner suspects on reasonable grounds that an officer—

(a) by reason of physical or mental infirmity is incapable of; or

(b) for any other reason pertaining to the officer’s health or condition, is unfit for the purpose of;

performing the duties of office, or any other duties as an officer that the commissioner might reasonably direct the officer to perform, the commissioner is to advise the officer, in writing, of the suspicion and if upon receipt of such advice the officer does not accept the truth of the commissioner’s suspicion, the commissioner is to obtain medical opinion on the matter.

(2) For the purposes of subsection (1), the commissioner—

(a) may nominate any medical practitioner or medical practitioners to examine the officer concerned and report to the commissioner on the physical or mental health or other relevant condition of the officer, as the case may require; and

(b) may direct the officer concerned to submit to examination by the nominated medical practitioner or medical practitioners.

(2A) If the officer concerned fails without reasonable cause to comply in all respects with a direction given by the commissioner, it is to be conclusively presumed that the commissioner’s suspicion is true.

(3) If, having regard to any medical opinions expressed by medical practitioners (including any such opinions furnished by the officer) on the health or condition of the officer concerned, or because of the presumption prescribed by subsection (2A) , the prescribed authority is satisfied that the officer should not continue to be required to perform the duties of office, then, unless the commissioner takes action authorised by subsection (5) , the prescribed authority may call upon the officer to retire from the service within a time specified by the prescribed authority.

(4) If the officer called upon to retire does not retire within the time specified, the prescribed authority may dismiss the officer from the service.

(5) If the commissioner believes the officer referred to in subsection (3) is sufficiently fit to perform duties as a staff member, then in lieu of the action authorised by subsections (3) and (4) and without limiting the commissioner’s powers in relation to the officer, the commissioner may—

(a) in writing, appoint the officer to a position as a staff member, at a rate of salary not less than that of the officer immediately before such appointment; and

(b) direct the officer to report for and perform duty in the position to which the officer is so appointed.

(6) The person appointed to a position under subsection (5) thereby ceases to be an officer and is relieved of all powers and duties of a constable at common law or under any Act or law.

Officers usually panic when they are served with one of these notices, and it is certainly concerning when you read the words ‘retire’ and ‘dismiss’ on documentation that is officially served upon you by a member of management (often one who is sporting a set of pips). However, receipt of one of these notices does not necessarily mean you will be medically retired, dismissed, or transitioned into a civilian role. In fact, I know of some officers who have received more s.8.3 Notices than payslips (okay, I may have slightly exaggerated) and they remain employed due to having successfully disputed each Notice.

The Notice will be in the form of a letter which advises you of the grounds for the Commissioner’s suspicion, and you have 14 days to advise in writing whether you;

a) Accept the Commissioners suspicion as being true; or

b) Dispute the Commissioner’s suspicion.

The letter usually also states something along the lines of; “unless compelling evidence indicates otherwise, an independent medical opinion regarding the matter will be obtained”. The letter is not yet a direction to attend an independent medical examination unless it specifically states so. At this initial stage, this Notice is simply advising you of a ‘suspicion’ – a state of mind formed by the Commissioner that you may either agree or disagree with. You then have an opportunity to provide the above-mentioned ‘compelling evidence’ as to why an independent medical opinion should not be obtained, and/or why the Commissioner’s suspicion is not true.

An important thing to remember here is that s.8.3 (1) provides that the Commissioner’s suspicion must be formed on ‘reasonable’ grounds. When a statute prescribes that there must be “reasonable grounds” for a person to believe or suspect certain matters, it requires facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 104 at 112 cited in McKinnon v Secretary, Department of Treasury [2006] HCA 45 (6 September 2006).

What constitutes reasonable grounds for forming a suspicion or belief must be judged against “what was known or reasonably capable of being known at the relevant time” (Ruddock v Taylor [2005] HCA 48). There must be an evaluation of known facts by the decision maker before a fair and just judgment can be made regarding whether reasonable grounds exist. If a piece of information, an opinion, or an argument are relevant to the decision and forming the state of mind, just decision-making requires that it be taken into account (Papakosmas v The Queen (1999) 196 CLR 297 at 307 [23]; Goldsmith v Sandilands (2002) 76 ALJR 1024 at 1025 [2]; 190 ALR 370 at 371.

Now, I’m certainly no lawyer but my understanding is that if the suspicion is NOT reasonable with consideration to all of the circumstances known (or capable of being known), then the statutory requirements of this section are unable to be met. In fact, I often see these notices served on grounds that are not reasonable at all. One example is when the QPS have either sought (through IME’s) or have been provided with multiple medical opinions confirming that an officer is fit for duty, but choose to ignore such medical opinions. On some occasions I have seen the Notices used as an obvious bullying and intimidation tactic against officers who have ‘blown the whistle’ or who are not willingly bending over to receive whatever ‘pineapple’ the organisation launches their way.

I recently had a discussion with a client regarding s.8.3 (1), and how it should be interpreted. In the case in question, the officer actually agreed with the Commissioner’s suspicion and was not disputing it, however the organisation was still intending on pursuing further medical opinion. The legislation specifically states that;

“… the Commissioner is to advise the officer, in writing, of the suspicion and if upon receipt of such advice the officer does not accept the truth of the Commissioner’s suspicion, the Commissioner is to obtain medical opinion on the matter” (emphasis added).

My interpretation of this provision is that if the officer agrees that they are unfit to perform their duties, then the Commissioner has no grounds to obtain any further medical opinion on the matter. Usually by the time a Notice of Suspicion is served, the officer has usually been under the care of a number of treating practitioners for some time. Those practitioners (in most cases) would have provided substantial information to the QPS that should have been considered when forming the Commissioner’s suspicion. In my view, that already available medical evidence should be sufficient in cases when an officer does not dispute the suspicion.

I therefore understand (and I’m happy to be corrected) that for any new medical opinion to be lawfully sought pursuant to this section, the following elements of the legislation would need to be satisfied in order for the Commissioner to rely upon this provision;

  1. The suspicion itself must have been formed on reasonable grounds; and
  2. The officer does not accept the suspicion as being true

If both of those elements of the legislation are unable to be met, it is my interpretation that a direction for the officer to then attend upon an Independent Medical Examiner under s.8.3 (2) (a) & (b) would be unlawful. Likewise, any further action under s.8.3 (retirement, dismissal, transition) based on the same grounds would also be unlawful. That is, the fact alone that an officer does not accept a suspicion should not give the Commissioner an open slather to go on a fishing expedition and direct the officer to attend an independent medical examination if in fact that suspicion has not been formed on reasonable grounds. If the elements cannot be satisfied, it is my belief that any further action or direction under s.8.3 should be abandoned, unless new grounds become available that are sufficient for the Commissioner to form a new reasonable suspicion.

Don’t assume that you have to agree with the suspicion or that you can’t respond. This initial Notice of Suspicion is not a direction unless clearly stated as such. It is served to inform you of a ‘suspicion’ that you have a right to dispute with supporting medical evidence. Many officers, particularly in the case of psychological injuries, are too unwell to really dissect what this Notice means, or are too overwhelmed to respond. As such, they often simply accept the suspicion and before they know it, they are sitting in an independent medical examination or having to show cause as to why they should remain in the job.

If you are unsure of your rights or how to respond, make an appointment with Justice 4 Workers Qld and ask how I can assist with preparing the response on your behalf.

**Please note that the author of this blog is not a lawyer. The above-mentioned application of this legislation is based solely on my own interpretation and understanding, and an alternate interpretation may be available. Justice 4 Workers always recommends seeking legal advice.