Independent medical examinations (Directive 04/24)

1. Purpose

1. This directive:
   1. establishes the process and requirements for making decisions about medical examinations in accordance with chapter 3, part 8, division 5 (Mental or physical incapacity) of the Public Sector Act 2022 (the Act)
   2. provides a public sector employee the right to request an internal review of a decision requiring the employee to submit to a medical examination under section 104 of the Act
   3. provides a public sector employee the right to appeal a decision requiring the employee to submit to a medical examination under section 104 of the Act, on the basis that the decision does not meet the requirements of section 103 of the Act (a directive decision under section 131(1)(b) of the Act).

2. Commencement

2. This directive commences on 18 September 2024.
3. On commencement, Commission Chief Executive (CCE) Directive 10/20: Independent medical examinations is repealed and superseded by this directive.

3. Authorising provisions

3. Sections 109 and 222 of the Act.

4. Application

4. This directive applies to:
   1. public sector employees as provided for in section 12 of the Act
   2. public sector entities as provided for in section 8 of the Act
   3. chief executives of public sector entities as provided for in section 16 and 17 of the Act, in their capacity as a chief executive of a public sector entity or of public sector employees.
5. Section 229 of the Act outlines the relationship between a directive and an industrial instrument including how to deal with inconsistencies.

5. Principles

5. Chief executives are responsible for making decisions about medical examinations under the provisions of chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act.
6. Chief executives are required to act in a way that is compatible with the main purpose of the Act, including by:
   1. treating public sector employees fairly
   2. taking measures to promote the effectiveness and efficiency of public sector entities
   3. taking steps to promote equity, diversity, respect and inclusion in employment
   4. ensuring fair and accountable decision making, including by providing public sector employees with access to fair and independent reviews and appeals
   5. establishing a high-performing, apolitical public sector that responds to the needs of the community and the government.
7. Under the Human Rights Act 2019 (HR Act) decision makers must:
   1. act and make decisions in a way that is compatible with human rights
   2. consider human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.
8. Under chapter 1, part 3 (Reframing of State’s relationship with Aboriginal peoples and Torres Strait Islander peoples) of the Act, reframing entities have a unique role in supporting the State government in reframing its relationship with Aboriginal peoples and Torres Strait Islander peoples by fulfilling certain responsibilities. A chief executive of a reframing entity is responsible for ensuring the entity fulfils its role when applying and making decisions under the Act and Commissioner directives.
9. Under chapter 2 (Equity, diversity, respect and inclusion) and chapter 3 (Public sector arrangements) of the Act, chief executives of public sector entities have a duty to promote equity and diversity in relation to employment matters, which includes in the application of and making decisions under the Act and Commissioner directives.
10. Chief executives should consider their obligations under the Work Health and Safety Act 2011, the Managing the risk of psychosocial hazards at work: Code of Practice 2022, the Disability Discrimination Act 1992 (Cth) and Anti-Discrimination Act 1991 (and any successor legislation) when undertaking processes, or applying provisions, under this directive.
11. In addition to any specific requirements in this directive, chief executives of public sector entities are required to consider ways to support accessibility and inclusion for employees when undertaking processes, or applying provisions, under this directive.
12. The Queensland Government is committed to supporting public sector employees with mental or physical illness or disability to maintain their employment, including through the application of reasonable adjustment, where appropriate.
13. Chief executives are responsible for ensuring that medical examination processes and decisions are implemented with appropriate support, sensitivity and respect for the employee consistent with the public sector principles under section 39 of the Act. Additionally, processes must be without bias, impartial, and inform and involve the employee.
14. Public sector managers and employees are required to work together to:
    1. manage work performance and absence in an appropriately supportive manner, including where mental or physical illness or disability may be a contributing factor
    2. communicate regularly, openly and constructively, including while the employee is absent, or during performance management processes. Mutual information sharing can be beneficial and is likely to improve outcomes for employees’ health, safety, wellbeing and work performance
    3. where a medical examination report has been obtained under section 104 of the Act, explore opportunities for continuing employment consistent with the medical examination report, before ill health retirement of an employee is considered by the chief executive under section 107 of the Act.

6. Interpretation of directions

6. The requirements set out in these directions are binding and must be followed.
7. The Act provides a mechanism for seeking medical advice where the conditions in section 103 of the Act have been met, and how action may be taken following receipt of the medical examination report.
8. These directions should be read in conjunction with the relevant authorising provision/s of the Act.
9. A chief executive must consider any guidance material issued by the Commissioner as guidance material for the purpose of this directive, and which is published on the Commission’s website, or in another publicly available way.

7. Reframing the relationship with Aboriginal peoples and Torres Strait Islander peoples

7. Chief executives must consider the responsibilities under section 21 of the Act relating to supporting a reframed relationship with Aboriginal peoples and Torres Strait Islander peoples, when undertaking processes and making decisions relating to medical examinations in accordance with this directive. This includes but is not limited to:
   1. promoting cultural safety and cultural capability at all levels of the public sector
   2. working in partnership with Aboriginal peoples and Torres Strait Islander peoples to actively promote, include and act in a way that aligns with their perspectives, when making decisions directly affecting them
   3. promoting a fair and inclusive public sector that supports a sense of dignity and belonging for Aboriginal peoples and Torres Strait Islander peoples
   4. supporting the aims, aspirations and employment needs of Aboriginal peoples and Torres Strait Islander peoples and the need for their greater involvement in the public sector.
8. In the context of promoting cultural safety when undertaking processes and making decisions relating to medical examinations in accordance with this directive, the matters a chief executive may consider include, but are not limited to:
   1. ensuring that the decision maker and any contact officer is culturally capable and able to communicate effectively with Aboriginal peoples and Torres Strait Islander peoples required to submit to a medical examination
   2. ensuring support and communication is culturally safe during a medical examination process. This may include involving a cultural support person
   3. considering any elements of conscious or unconscious bias that may impact the process, including the use of mitigation strategies to address bias concerns
   4. consideration of the cultural rights of Aboriginal peoples and Torres Strait Islander peoples under section 28 of the HR Act.

8. Deciding whether to require an employee to submit to a medical examination

8. When deciding whether to require an employee to submit to a medical examination in accordance with section 104 of the Act, a chief executive must consider:
   1. whether there is a more appropriate option in the circumstances to attempt to resolve the employee’s unsatisfactory performance or absence. This must include consideration of legislative obligations relating to reasonable adjustment and obligations under the Workers’ Compensation and Rehabilitation Act 2003. This may also include positive performance management or seeking the employee’s consent to obtain information from the employee’s treating doctor to inform further discussions about the work performance or absence, or a graduated return to work
   2. whether the conditions in sections 103(a) and (b) of the Act have both been met.
9. Additionally, when deciding whether to require an employee to submit to a medical examination in accordance with section 104 of the Act, where an employee is covered by the Commissioner directive related to the voluntary medical retirement (VMR) scheme, a chief executive may consider as an alternative course of action:
   1. an application initiated by the employee under the Commissioner directive about the VMR scheme
   2. if the employee has not submitted an application under the Commissioner directive about the VMR scheme, the chief executive may wish to suggest to the employee, that they consider seeking medical advice to determine whether they could submit an application under the Commissioner directive about the VMR scheme.
10. To meet the conditions in section 103(a) of the Act, it is either a question of fact that the employee is absent from duty, or that there are sufficient grounds, supported by evidence to be reasonably satisfied the employee is not performing their duties satisfactorily.
11. Where an employee’s absence is relied upon, the chief executive must reasonably suspect it is caused by mental or physical illness or disability and not another reason, for example, a suspension unrelated to mental or physical illness or disability.
12. To meet the conditions in section 103(b) of the Act, the reasonable suspicion must be supported by sufficient grounds, which have been documented.
13. Relationship with the Commissioner directive about positive performance management:
    1. where the conditions in section 103 of the Act have been met, it is at the discretion of the chief executive to determine whether to commence or continue to take action under the Commissioner directive about positive performance management or apply the provisions under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act, after consideration of the circumstances, legislative obligations and the requirements in this directive
    2. where the provisions under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act are applied, nothing prevents a chief executive from commencing or continuing to take action under the Commissioner directive about positive performance management, where it is considered appropriate. For example, it may not be appropriate to commence or continue to manage unsatisfactory performance under the Commissioner directive about positive performance management without understanding the impact of the suspected mental or physical illness or disability on the employee’s work performance.

9. Use of existing medical reports to manage mental or physical illness or disability in the workplace

9. Workers’ compensation documents including WorkCover medical reports should not be used, referenced or paraphrased in any way when making a decision to take action under sections 104 or 107 of the Act, as it is contrary to section 572A of the Workers' Compensation and Rehabilitation Act 2003. This includes, for example, as evidence to support reasonable suspicion under section 103(b) of the Act, or as background information disclosed to an examining doctor when requiring an employee to submit to a medical examination under section 104 of the Act.
10. Where an employee provides a medical report or consents to the public sector entity being provided with a medical report from a third party (for example, a medical certificate or report from the employee’s treating doctor, a work capability assessment from an occupational therapist or a report from QSuper), for the purposes of managing the effects of the employee’s mental or physical illness or disability, the entity can:
    1. consider the information in determining what actions, if any, are required to manage the employee’s mental or physical illness or disability in the workplace, such as reasonable adjustments or a graduated return to work plan. This is distinct from taking action under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act
    2. use the medical reports (excluding workers’ compensation documents) to support decisions under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act, and disclose the medical reports to the examining doctor for the purpose of section 104 of the Act. This is an authority to use and disclose this information under Information Privacy Principle (IPP) 10 subsection (1)(c), IPP 11 subsection (1)(d) and National Privacy Principle (NPP) 2 subsection (1)(f) of the Information Privacy Act 2009 (Information Privacy Act) and any successor/s to any privacy principles resulting from legislative review.
11. An existing medical report cannot be used as a substitute for a report that the public sector entity would receive following an employee attending a medical examination in accordance with section 104 of the Act, to authorise action to be taken under section 107 of the Act. However, a chief executive may consider an existing medical report (excluding workers’ compensation documents) as additional relevant information when considering action under section 107 of the Act, following receipt of a medical examination report obtained under section 104 of the Act.

10. Requiring an employee to submit to a medical examination

10. Where a chief executive has determined that the conditions in section 103 of the Act are satisfied, the chief executive may require an employee to submit to a medical examination in accordance with section 104 of the Act. This is a lawful direction that does not require the employee’s consent.
11. Failure to comply with a direction to submit to a medical examination under section 104 of the Act may be grounds for discipline action in accordance with the Commissioner directive relating to discipline.
12. In accordance with section 105 of the Act, an employee must not be given sick leave for any period during which the employee fails to comply with a direction to attend a medical examination under section 104 of the Act, except where the employee has made a request for internal review or appealed and is awaiting the decision.
13. When making a medical examination appointment under section 104 of the Act, the information provided to the examining doctor must draw attention to clauses 12.1 and 12.2 regarding information to be contained in the medical examination report.
14. The notice to an employee to submit to a medical examination must be in writing and include:
    1. the basis and reasons (including evidence relied upon) for the direction under section 104 of the Act
    2. details of the medical examination appointment with at least 28 calendar days’ notice, unless the employee agrees to a shorter notice period
    3. advice that the employee is able to request a change to the appointment time by providing a reason for consideration by the chief executive. It is at the discretion of the chief executive whether this reason is considered valid
    4. the information provided to the examining doctor
    5. the employee’s right to seek an internal review under this directive or appeal the decision, and the applicable timeframes for these.
15. An employee required to submit to a medical examination under section 104 of the Act has the right to:
    1. continue to be treated with respect by all people in the workplace, be supported in the workplace and not be victimised or treated differently because of being required to submit to a medical examination
    2. access advice on their rights of review (for example, internal review and appeal) and support options from a contact officer, entity human resources team, or external advisory service including through access to the entity’s employee assistance service or union representative
    3. seek an internal review of the decision requiring the employee to submit to a medical examination in accordance with this directive
    4. appeal a decision that requires the employee to submit to a medical examination in accordance with this directive.

11. Internal review

11. An employee may, within 14 calendar days of receiving the notice to submit to a medical examination, notify the chief executive in writing:
    1. that they are seeking an internal review of the decision requiring them to submit to a medical examination, and
    2. why they believe the decision does not meet the conditions in section 103 of the Act or the procedural elements of this directive.
12. A chief executive may extend the timeframe for the employee to request an internal review, considering the employee’s individual circumstances.
13. Upon the chief executive receiving a request for internal review, the medical examination appointment must be cancelled. Once the outcome of the internal review is known, the appointment may be rescheduled (if it is still required).
14. The internal review must determine whether the decision to require the employee to submit to a medical examination meets the conditions in section 103 of the Act and the procedural elements of this directive.
15. The internal review must be conducted by an independent decision maker within the public sector entity, to whom the chief executive has delegated authority to conduct the internal review. The independent decision maker should be senior to the original decision maker where practicable and removed from the original decision-making process. The independent decision maker must be provided with all information considered for the original decision.
16. The internal review decision and the reasons for the decision must be communicated to the employee in writing, within 28 calendar days of the employee requesting the internal review, or a longer period subject to the employee’s written agreement.

12. The medical examination report

12. The medical examination report must contain:
    1. the information required by section 106 of the Act
    2. only information considered relevant by the examining doctor to the workplace impacts of the mental or physical illness or disability. Information that may be irrelevant may include family or personal history, past unrelated addictions, gender preferences for intimate relationships, gynaecological history, libido or past sexual behaviour.
13. Any information that is included in the medical examination report in addition to what is required by section 106 of the Act must be demonstrably related to the effect (either directly or indirectly) or management of the employee’s mental or physical illness or disability on their work performance or absence.
14. If the medical examination report contains information that is considered irrelevant, the chief executive must seek advice from the examining doctor as to the relevance of the information, whether it should be removed, and the medical examination report reissued.
15. A copy of the report must be provided to the employee or their nominated doctor in accordance with the requirements under section 106 of the Act.

13. Action following the medical examination report

13. Action under section 107 of the Act can only be taken where the chief executive has required a medical examination under section 104.
14. The chief executive must consider the medical examination report to determine whether they are reasonably satisfied that the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability.
15. The chief executive must then consider how best to support the employee, with a focus on continuing employment, and either propose no further action or an appropriate course of action in accordance with section 107 of the Act.
16. Where the medical examination report suggests adjustments, the chief executive must consider their legislative obligation to implement reasonable adjustments in consultation with the employee.
17. When proposing action under section 107 of the Act, options that the chief executive may consider, depending on the circumstances, includes but is not limited to:
    1. graduated return to work
    2. secondment or temporary opportunity in a different role, where the medical report indicates there are reasonable prospects for improvement in the effects of the employee’s mental or physical illness or disability on their performance
    3. transfer or redeployment
    4. retirement.
    All reasonably practicable options for continuing employment must be considered. Retirement of the employee should be considered as a last resort.
18. Following consideration of options, any action proposed under section 107 of the Act must be timely following receipt of the medical examination report to ensure decisions are based on current medical information.
19. In proposing a course of action, the chief executive must consider any applicable statutory protections such as protections against dismissing ill or injured employees under the Industrial Relations Act 2016 or the Workers' Compensation and Rehabilitation Act 2003.
20. A decision to take action under section 107 of the Act is subject to procedural fairness.
21. In proposing a course of action, the chief executive must provide the employee in writing:
    1. details of the action proposed and an explanation of why the action is proposed
    2. any alternative actions that were considered when determining the action to be proposed and why the alternative actions were not considered appropriate
    3. an opportunity to respond to the proposed action, affording the employee with a minimum period of 14 calendar days to respond, or longer where agreed between the employee and the entity
    4. an opportunity to submit any additional material they consider relevant as part of their response. For example, an existing medical report excluding workers’ compensation documentation.
22. The chief executive must consider the medical examination report, the employee’s response, and any other relevant information available to them (excluding workers’ compensation documentation) when deciding to take action under section 107 of the Act.
23. If the employee does not respond to the proposed action, or does not respond within the nominated timeframe and has not been granted an extension of time to respond, the chief executive must consider whether to take action under section 107 of the Act based on the information available to them.
24. A decision to take action under section 107 of the Act must be provided to the employee in writing as soon as possible, including the reasons for the decision and any rights of review available to the employee.

14. Appeals

14. An employee may appeal a decision that requires the employee to submit to a medical examination (a directive decision), on the basis that the decision does not meet the requirements of section 103 of the Act, as provided for in chapter 3, part 10 (Appeals) of the Act.
15. An employee may appeal an internal review decision under clause 11 that requires the employee to submit to a medical examination (a directive decision), on the basis that the decision does not meet the requirements of section 103 of the Act, as provided for in chapter 3, part 10 (Appeals) of the Act.
16. The internal review under clause 11 and appeal rights provided for in chapter 3, part 10 (Appeals) of the Act may not be exercised concurrently.
17. Appeals by public sector employees are heard and decided by the Queensland Industrial Relations Commission (QIRC) under chapter 11 of the Industrial Relations Act 2016 (IR Act).
18. The Commissioner directive relating to appeals should be referenced for information regarding appeal rights and associated timeframes.

15. Records

15. Records about medical examinations under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act must be managed in accordance with:
    1. section 108 (Record of requirement and report) of the Act
    2. chapter 8, part 3 (Confidentiality) of the Act
    3. relevant legislation governing information privacy including the IPPs under the Information Privacy Act 2009.

16. Transitional provisions

16. Section 306 of the Act sets out the transitional arrangements for decisions requiring an employee to submit to a medical examination under the repealed Act.
17. For matters that commenced prior to the commencement of this directive:
    1. Where a public sector entity required an employee to submit to a medical examination under the superseded directive, and upon commencement of this directive the chief executive has not yet taken action under section 107 of the Act, the remaining process and any decisions made under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act must be completed in accordance with this directive
    2. Where a public sector entity not covered by the superseded directive required an employee to submit to a medical examination under section 104 of the Act, and upon commencement of this directive the chief executive has not yet taken action under section 107 of the Act, the remaining process and any decisions made under chapter 3, part 8, division 5 (Mental or physical incapacity) of the Act must be completed in accordance with this directive, to the extent possible. For example, if the 14-day time period under clause 11 of this directive has passed upon commencement of this directive, it would not be possible for an employee to request an internal review under clause 11
    3. Where an employee requested an internal review of a decision requiring the employee to submit to a medical examination under the superseded directive, and the internal review was not completed by commencement of this directive, the internal review must be completed in accordance with this directive. For example, the employee may provide a further reason for requesting an internal review, on the basis that the decision does not meet the procedural elements in this directive in accordance with clause 11.1(b).

Unless otherwise provided, the terms in this directive have the meaning prescribed in the Act.

Chief executive in the context of exercising a decision-making power, includes a person to whom the chief executive has delegated the decision-making power under section 282 of the Act.

Employee means a public sector employee as provided for in section 12 of the Act.

Examining doctor means a doctor appointed under section 104(a) of the Act to examine the employee and give the chief executive a written report on the examination in accordance with section 106 of the Act.

Medical examination means a medical examination required under section 104 of the Act.

Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements–the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).

Public sector entity has the meaning provided for under section 8 of the Act.

Reasonable adjustment is a concept used within anti-discrimination legislation, most relevantly the Disability Discrimination Act 1992 (Cth) and Anti-Discrimination Act 1991 (and any successor legislation), which imposes obligations on employers to provide reasonable adjustments to employees with illnesses and disabilities to protect against unlawful discrimination in the workplace and facilitate equal access to the workforce.

Repealed Act means the Public Service Act 2008.

Superseded directive means the Commission Chief Executive Directive 10/20: Independent medical examinations.

Unsatisfactory performance means conduct or work performance that does not meet the standard required of the position.

Work performance includes, but is not limited to, matters relating to an employee’s:

1. quality of work (accuracy, thoroughness, competence, including professional competency)
2. quantity of work and diligence (productivity level, time management, ability to meet deadlines)
3. job knowledge (skills and understanding of the work)
4. working relationships (ability to work with others, including communication skills).