Butler v Acting Deputy Commissioner Peter Barron - [2015] QSC 321

SUPREME COURT OF QUEENSLAND

CITATION:

Butler v Acting Deputy Commissioner Peter Barron [2015] QSC 321

PARTIES:

Scott Andrew Butler

(Applicant)

v
Acting Deputy Commissioner Peter Barron

(Respondent)

FILE NO/S:

TS No 557 of 2014

DIVISION:

Trial Division

PROCEEDING:

Trial

ORIGINATING COURT:

Supreme Court of Queensland at Townsville

DELIVERED ON:

12 November 2015

DELIVERED AT:

Brisbane

HEARING DATE:

12 October 2015

JUDGE:

Boddice J

ORDER:

1. I shall hear the parties as to the form of orders and costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – RELEVANT CONSIDERATIONS – where the applicant is a Sergeant in the Queensland Police Service (“QPS”) – where the respondent called upon the applicant to retire from the QPS pursuant to s 8.3(3) of the Police Service Administration Act 1990 (Qld) (“the Act”) – where s 8.3(3) of the Act allows a prescribed authority to call on an officer to retire having regard to medical opinions on the health or condition of the officer unless the commissioner takes action pursuant to 8.3(5) of the Act by appointing the officer to a non-operational police position in lieu of retirement – where the applicant submits that the respondent impermissibly took into account the opinion of a psychologist, which was a non-medical opinion – where the applicant submits that the respondent failed to take into account a relevant consideration by failing to consider whether the applicant could or should be appointed to a non-operational police position pursuant to s 8.3(5) of the Act in lieu of being called upon to retire – where the applicant had repeatedly refused to be appointed to a non-operational police position – where the applicant submits the respondent failed to disclose all relevant material prior to making the decision because it disclosed extracts of reports and not complete reports

Judicial Review Act 1999 (Qld)

Police Service Administration Act 1990 (Qld), s 8.3

COUNSEL:

M Black for the applicant

S A McLeod for the respondent

SOLICITORS:

Gilshenan & Luton for the applicant

Public Safety Business Agency for the respondent

The applicant, a Sergeant in the Queensland Police Service (QPS), seeks judicial review of a series of decisions made by the respondent, which culminated in a decision dated 4 July 2014 dismissing the applicant from the QPS on medical grounds.
The application, brought pursuant to the Judicial Review Act 1991 (Qld), seeks orders setting aside each of those decisions. The grounds for review are that each of the decisions: involved an improper exercise of power and/or an error of law and/or were in breach of the rules of natural justice and/or were otherwise contrary to law.
At issue is whether the respondent: impermissibly relied on non-medical opinions; failed to consider whether the applicant should have been appointed to a non-operational police position, and/or failed to disclose all relevant material to the applicant prior to making his decision.
Background
The applicant was born on 7 October 1969. He commenced as a recruit in February 1991. He was sworn in on 12 December 1991. He was promoted to Senior Constable in July 1999. In January 2007, he was promoted to Sergeant and Team Leader, Tactical Crime Squad, Townsville. Since that time, he has acted as a Senior Sergeant on at least six occasions.
In November 2009, an offender struck the applicant on the head with a hammer and he sustained a head injury. Subsequent medical investigations revealed the applicant had multiple brain stem cavernomas. Those cavernomas were, at the time, asymptomatic. The applicant made a full recovery. After a period on restricted duties, he resumed full operational duties from November 2011.
In July 2012, the applicant had a bleed from a cavernoma adjacent to the pons area of his brain. As a consequence, he was partially paralysed in the right side of his face and neck. In 2013, the applicant had elective surgery on the cavernoma. The applicant’s surgical treatment was apparently successful. On 15 April 2013, the applicant returned to work on a gradual return to work program. He later returned to full-time work but with the restriction that he not have offender contact.
On 3 June 2013, the applicant received notice that an Assistant Commissioner, under s 8.3 of the Police Service Administration Act 1990 (Qld), reasonably suspected that by reason of physical and mental infirmity the applicant was currently incapable of performing the duties of office or any other duties as an officer that he might reasonably be directed to perform. The applicant was directed to undergo medical examinations.
By letter dated 14 June 2013, a QPS employee directed the applicant to consult a neuropsychologist, Peter Perros, and a neurosurgeon, Dr Michael Coroneos. The applicant consulted Mr Perros on 21 June 2013 and Dr Coroneos on 19 July 2013. Mr Perros prepared reports dated 19 August 2013 and 26 November 2013. Dr Coroneos prepared reports dated 28 June 2013 and 17 September 2013.
Both Dr Coroneos and Mr Perros expressed concerns about the risks of further injury for the applicant’s long-term health. The applicant did not accept those opinions. The applicant arranged for his own reports. Those reports indicated the applicant was fit to return to full duties without restrictions. QPS did not accept the applicant was fit to return to full duties.
By letter dated 2 December 2013, QPS’s director of Safety and Wellbeing advised the applicant that he was satisfied the applicant was not fit to carry out operational police work, and that a medical career transition would be arranged in which the QPS “will review current vacancies to assess [his] suitability for appointment to an alternative vacant position”. The applicant did not accept he should undergo career transition. He requested he be allowed to resume operational duties. The applicant also requested access to all correspondence and doctor’s reports.
The decisions
The decisions the subject of the application are contained in letters sent to the applicant by the respondent on 23 May 2014 and 4 July 2014.
Relevantly, the letter dated 23 May 2014 advised:
“I refer to your restriction from fully operational police work, having no offender contact in your role as Sergeant, Team Leader (Tactical Crime Squad) since you returned to work on 16 April 2013 after a period of leave from 9 July 2012 due to a haemorrhage from a brain stem cavernoma and your subsequent medical examination by independent specialists Dr Michael Coroneos and Mr Peter Perros performed at the request of Assistant Commissioner C D O’Regan.
I have considered the reports of Dr Michael Coroneos and Mr Peter Perros.
In the report dated 19 August 2013 and 26 November 2013, Mr Peter Perros stated that your neurological and head trauma history has made you more vulnerable statistically of sustaining debilitating post-concussive symptoms, and at increased risk of suffering permanent neuro-behavioural impairment from a subsequent severe blow to the head or neck. He states that his concerns ‘revolve around the potential for further post-traumatic impairment of attention, memory, and executive functioning – symptoms of which are currently subtle yet noticeable on testing.’
In the report dated 17 September 2013, Dr Michael Coroneos stated ‘I have respectfully reviewed all the information you have provided, and I believe you should follow the psychological risk addressed by Mr Peter Perros and follow up on that, which would mean restricting the patient from potentially volatile offenders.
On 2 December 2013 Mr Colin Anderson, Director of Safety and Wellbeing initiated medical career transition so that the Queensland Police Service (QPS) may review current vacancies to assess your suitability for appointment to an alternative vacant position.
On 4 January 2014, you have formally written to Mr Colin Anderson requesting that the QPS reassess the decision for you to be placed on medical career transition and that you resume full operational duties.
On 28 January 2014, Mr Colin Anderson upon review of your case has stated that as a consequence of the medical advice received from independent and treating specialists, he is of the view that your physical health now and for the foreseeable future precludes you from working as a Queensland Police Officer, and that the QPS will continue with the career transition process to try and identify a suitable position that you may be appointed to.
On 7 February 2014 you stated that you refused to take part in job transition.
…
Having regard to the medical opinion of Dr Michael Coroneos and Mr Peter Perros regarding your present condition, I am satisfied that you should not continue to perform your duties of office and pursuant to section 8.3(3) of the Act, I hereby call upon you to retire from the service with effect from midnight on 22 August 2014.
…”
Relevantly, the letter dated 4 July 2014 advised:
“I refer to my previous letter dated 20 May 2014 calling upon you to retire on the grounds of medical incapacity in pursuance of Section 8.3(3) of the Police Service Administration Act 1990.
Your correspondence dated 20 June 2014 has been received in which you do not accept the direction to retire.
I note Mr Anderson’s letter and attached house profile to you dated 28 January 2013 responded to the recommendations you propose in your correspondence dated 4 January 2014. In this letter Mr Anderson stated: ‘After due consideration we will continue with the previously proposed action and continue with career transition to try and identify a suitable position that you may be appointed to.’
Mr Anderson considered all medical evidence, including that provided by independent specialists Dr Coroneos and Mr Perros, as well as treating specialist Dr Tomlinson.
You confirmed in an email to Mr Fogarty on 7 February 2014 that you refused to take part in career transition.
In your correspondence dated 20 June 2014, you stated: ‘It appears that QPS is attempting to medically retire me, not on the basis that I cannot perform the role of an operational police officer, but rather on the basis that “if” I am injured in the future; any injury received may result in more serious medical repercussions than what would occur in another officer.’
This statement is essentially correct. Policing is an inherently dangerous occupation. Officers are exposed to a wide variety of risks and hazards through the normal course of their employment.
…
The Queensland Police Service takes into consideration the opinion of specialists, such as Mr Perros who is a well-respected, qualified neuropsychologist whose opinion on cognitive functioning is of value and needs to be considered when the Queensland Police Service is managing the short and long-term health and wellbeing of its employees.
Dr Coroneos in his supplementary report dated 17 September 2013, which I note a copy was forwarded to your treating doctor, Dr Gregory Winter on 13 December 2013 for your consideration, stated: ‘I have respectfully reviewed all the information you have provided and believe you should follow the psychological risk addressed by Mr Peter Perros and follow up on that, which would mean restricting the patient from potentially volatile offenders. I would also thus agree with Dr Perros that this would restrict him from returning to full operational duties which would involve offender contact. Dr Peter Perros is a very senior and experienced psychologist and his opinion must be respected.’
Dr Frank Tomlinson, treating specialist and neurosurgeon, stated in his report dated 24 September 2013: ‘I believe there is a significant risk to Mr Butler’s long-term health if he was to sustain another assault to the head or neck region.
I agree with Dr Perros that it would be best for Mr Butler to return to a role that does not involve a high likelihood of a head injury or physical trauma to the neck region.’
I have reviewed the medical reports you have provided from Dr Gregory Winter, sports and exercise physician, dated 24 February 2014. With respect to Dr Winter, he has provided no medical information that contradicts your risk for injury as assessed by Dr Tomlinson and Dr Coroneos.
…
After giving due consideration to your case, taking into consideration all medical information, and materials provided by you, I am satisfied you should not continue to perform your duties of office.
I understand that you have been provided the opportunity to participate in the career transition program but have declined. Should you reconsider participation in the career transition program please complete and return the career transition document to me by 25 July 2014. I will then consider your request.
However, based on the information I have before me, and in pursuance of section 8.3(4) of the above Act, I hereby dismiss you from your employment with the Queensland Police Service on the basis of your medical incapacity, with effect from midnight on 22 August 2014.
…”
Legislation
Section 8.3 of the Act provides:
“(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.
(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…the prescribed authority is satisfied that the officer should 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.”
Applicant’s submissions
The applicant submits s 8.3 of the Act empowers the decision-maker to obtain a medical opinion from a “medical practitioner”. However, before the respondent may call upon the applicant to retire from the QPS, he must be satisfied that the respondent should not continue to be required to perform the duties of office. That satisfaction can only be based upon medical opinions, from medical practitioners.
The applicant submits the respondent’s decision was based on non-medical opinions. Whilst Dr Coroneos is a medical practitioner, Mr Perros is not a medical practitioner. The respondent relied on the opinion expressed by Mr Perros. Such an opinion is not relevant for the purpose of s 8.3 of the Act. By having regard to it, the respondent took into account irrelevant considerations.
The applicant also submits the reports of Dr Coroneos and Mr Perros were improperly obtained, as the direction by which the applicant attended on those examinations was given by a person who did not hold a relevant authority to give the direction. Any reliance upon the reports obtained as a consequence thereof amounted to the taking into account of irrelevant considerations.
The applicant further submits that s 8.3 of the Act obliged the respondent to consider a non-operational policing role for the applicant. That obligation existed even though the applicant indicated that his preference was to resume operational policing and did not consent to a transfer under the career transition process. As the respondent did not consider a non-operation position role for the applicant, the respondent failed to have regard to a relevant consideration.
Finally, the applicant submits the respondent acted in breach of the rules of natural justice. The respondent failed to disclose all relevant material to the applicant, despite requests from the applicant for access to that material. The provision of extracts from the relevant reports was not sufficient.
Respondent’s submissions
The respondent submits that s 8.3 of the Act does not mean the opinions expressed by Mr Perros were irrelevant to the decisions of the respondent. Dr Coroneos was entitled to refer to and take into account Mr Perros’s opinions. Each decision of the respondent expressly referred to Dr Coroneos’ opinion (even though it did also refer to the opinions of Mr Perros). The decision of 4 July 2014 also referred to the opinions of Dr Tomlinson and Dr Winter. Those opinions were medical opinions from medical practitioners.
The respondent also submits the reports of Dr Coroneos and Mr Perros were obtained pursuant to a direction validly given to the applicant. The applicant expressly accepted the terms of that direction. The subsequent correspondence, designating the times of the examination, merely facilitated this process. That correspondence did not constitute the direction.
The respondent further submits that whilst there exists a discretion, under section 8.3 of the Act, either to decide to retire an officer or to offer alternate duties as a staff member, there is no obligation on the respondent to offer the applicant duties as a staff member. Consideration of the availability of a non-operation role was not a relevant consideration under s 8.3 of the Act. In any event, the applicant expressly advised he would not take up a non-operational position.
Finally, the respondent submits there was no breach of procedural fairness in any decision. Whilst the applicant was not given copies of the full report of Dr Coroneos, the applicant was provided with the relevant extracts of that report and of any other medical reports. Those extracts informed the applicant of the case against him.
Discussion
Improper exercise of power
Section 8.3(1) of the Act empowers the Commissioner, in specified circumstances, to obtain medical opinion in relation to an officer. That medical opinion must be obtained from a medical practitioner or practitioners. “Medical practitioner” is not defined in the Act. However, the Acts Interpretation Act 1954 (Qld) defines it as meaning a person “registered under the Health Practitioner Regulation National Law to practice in the medical profession, other than as a student”.[1]
[1] Acts Interpretation Act 1954 (Qld) Schedule 1.
The Health Practitioner Regulation National Law(Queensland) 2009 (Qld) allows for the registration of persons within various health professions. One such profession is the “medical profession”. Another such profession is the “psychology profession”. A psychologist is defined as a person who is registered in the “psychology profession”. Mr Perros is registered in the psychology profession. Mr Perros is not registered to practice in the medical profession.

Section 8.3 of the Act is clear and unambiguous. The medical opinions that may be relied upon for the purposes of a decision to retire an officer from the service must be from a medical practitioner. The strictness of this requirement is understandable. It is a serious matter to force the retirement of an officer on medical grounds. Any such decision, in accordance with the Act, must be made having regard to medical opinions expressed by medical practitioners.
The respective decisions of the respondent had regard to opinions expressed by Mr Perros. Mr Perros is not a “medical practitioner”. However, that fact does not mean the opinions expressed by Mr Perros are not properly to be considered by the respondent. They may be properly considered, if those opinions are material to any medical opinion expressed by a medical practitioner.
This distinction is important, as Dr Coroneos, in his report of 17 September 2013, expressly referred to, took into account and adopted opinions expressed by Mr Perros. Similarly, Dr Tomlinson took into account and adopted opinions expressed by Mr Perros. The opinions so adopted are properly to be categorised as medical opinions expressed by a medical practitioner. Those opinions are a relevant consideration for the respondent.
However, in his letter of 23 May 2014, the respondent specifically quoted from a passage in Mr Perros’s report of 26 November 2013. That report was never shown to Dr Coroneos or Dr Tomlinson. Dr Coroneos’s earlier adoption of the risks identified by Mr Perros, in the report dated 17 September 2013, cannot include the risk specifically referred to by the respondent, as Dr Coroneos’s report was prepared prior to preparation of Mr Perros’s supplementary report. Those specific risks were not addressed by Mr Perros in the earlier report.
Whilst the respondent, in the letter of 23 May 2014, referred to medical opinion expressed by medical practitioners, the opinion expressed by Mr Perros as to future risk was a key matter in the respondent’s decision that the applicant should not continue to perform his duties of office. The respondent expressly said his satisfaction that the applicant should not continue to perform those duties was based on the opinions expressed by Dr Coroneos and Mr Perros.
The only aspect of Dr Coroneos’s opinion referred to, in that context, was Dr Coroneos’s adoption of the risks addressed by Mr Perros. However, the risks identified by Mr Perros which were relied on by the respondent were risks raised in the report of Mr Perros of 26 November 2013 which was not shown to Dr Coroneos. It cannot be said that Dr Coroneos adopted those risks. There is no evidence those risks were adopted by any other medical practitioner. As such, Mr Perros’s opinion, whilst significant, is not a medical opinion from a medical practitioner.
Further, the section of Mr Perros’s report specifically referred to by the respondent expressly drew a distinction between the nature of Dr Coroneos’s ongoing concerns and the ongoing concerns of Mr Perros. Relevantly, Mr Perros said:
“Dr Coroneos suggests Mr Butler can return to his substantive role but will need to have regular (costly) checks of his brain stem (presumably by way of MRI brain scan) to ensure early detection of re-haemorrhaging. My concerns go past the brain stem cavernous haemangioma and revolve around the potential for further post-traumatic impairment of attention, memory, and executive functioning – symptoms of which are currently subtle yet noticeable on testing, and the risk of accelerating cognitive decline due to ageing.”
The decision of 23 May 2014, to call upon the applicant to retire from the QPS, was affected by reviewable error. The respondent’s reliance upon the opinion expressed by Mr Perros in the report of 26 November 2013, which was not subsequently adopted as a medical opinion by any medical practitioner, amounted to the taking into account of an irrelevant consideration. An improper exercise of a power includes taking into account an irrelevant consideration.[2]
[2] Judicial Review Act 1991, s 23.
In the letter of 4 July 2014, the respondent did not specifically refer to any particular aspect of Mr Perros’s report. The respondent advised that he took into consideration the opinion of specialists such as Mr Perros, as well as the opinions expressed by Dr Coroneos and Dr Tomlinson. In respect of Dr Tomlinson’s opinion, the respondent expressly noted that Dr Tomlinson opined there was a significant risk to the applicant’s long-term health if he was to sustain another assault to the head or neck region, and agreed with Mr Perros that it would be best for the applicant to return to a role that did not involve a high likelihood of a head injury or physical trauma to the neck region.
The respondent’s decision on 4 July 2014, to dismiss the applicant from his employment, was not specifically based on any opinion of Mr Perros which had not been adopted as the medical opinion of a medical practitioner. However, the respondent’s power to dismiss the applicant, pursuant to s 8.3 of the Act, specifically arose after the respondent, having been satisfied in accordance with s 8.3(3) of the Act, called upon the applicant to retire from the service and that officer, having been properly called upon to retire, did not retire within the specified time.
As the decision of the respondent on 23 May 2014, to call upon the applicant to retire from the service, was affected by reviewable error, the decision of 4 July 2014 to dismiss that officer is likewise affected by reviewable error. Both decisions should be set aside.
The conclusion that the decisions of 23 May 2014 and 4 July 2014 should be set aside renders it unnecessary to consider the remaining grounds. However, I shall briefly state my conclusions in relation to them.
Reports improperly obtained
The applicant attended upon Mr Perros and Dr Coroneos following correspondence from QPS advising of the date of those appointments. That correspondence was signed by a person who was not delegated with a power to direct the applicant to attend any medical examinations pursuant to s 8.3 of the Act.
Prior to that correspondence, the applicant had been advised by letter dated 3 June 2013, signed by an Assistant Commissioner, that the impact of his current medical condition on his capacity to perform his duties as a Sergeant was under review and that the Assistant Commissioner, in accordance with s 8.3 of the Act, reasonably suspected by reason of physical or mental infirmity that the applicant was currently incapable of performing the duties of office or any other duties as an officer that he might be reasonably directed to perform. The letter went on to advise that “unless compelling evidence indicates otherwise, an independent medical opinion regarding the matter will be obtained pursuant to s 8.3(1) of the Act”.
Whilst that correspondence did not nominate any medical practitioner or practitioners, or specially direct the applicant to submit to an examination by any nominated medical practitioner or medical practitioners, the applicant by email dated 5 June 2013 acknowledged receipt of that letter and advised that he accepts “that the QPS is directing me to attend other specialists and [he would] attend as required”. Against that background, there was no requirement for the Commissioner’s authorised delegate to thereafter nominate the medical practitioner or medical practitioners and direct the applicant to submit to such examinations. The applicant had accepted he would undertake that course. Notification of the names of the medical practitioners and the dates of examinations did not require formal direction under s 8.3(2) of the Act. The reports subsequently obtained were not improperly obtained in all the circumstances.
Failure to consider non-operational police position
A consideration of the correspondence entered into between the QPS and the applicant, prior to the decisions of 23 May 2014 and 4 July 2014, indicates the respondent gave consideration to having the applicant engage in career transition. The applicant refused to participate in any such career transition. The applicant maintained that position even after the decision of 23 May 2014. Against that background, there is no basis upon which to conclude the respondent failed to have regard to the possibility the applicant could perform duties as a staff member.
Breach of natural justice
As Mason J (as His Honour then was) articulated in Kioa v West, the question in most cases is not whether the principles of natural justice apply: “[i]t is: what does the duty to act fairly require in the circumstances of the particular case?”[3] The applicant submits that a breach of natural justice occurred because although the respondent did provide him with relevant extracts of the reports prior to the decisions being made,[4] it did not provide him with the full reports.
[3] (1985) 159 CLR 550, 585.
[4] Cf O’Donnell v Deputy Commissioner Brett Pointing & Anor [2015] QSC 314.
In O’Donnell v Deputy Commissioner Brett Pointing & Anor,[5] Flanagan J observed that “for the purposes of affording procedural fairness, it remains necessary to convey the substance of the adverse material to a person in the applicant’s position”. A consideration of the material reveals that the applicant was provided with copies of relevant extracts of the medical reports, and given the opportunity to make submissions in relation to them, before the making of the decisions of 23 May 2014 and 4 July 2014.
[5] [2015] QSC 314, [41].
The material provided adequately informed the applicant of the case against him and of the material relied upon in support of the respondent’s decisions. There was no obligation on the respondent to provide the applicant with full copies of the medical reports. The failure to do so did not constitute a breach of natural justice. The extracts provided were sufficient to inform the applicant of the practitioners’ opinions and the bases for those opinions.
Conclusions
The applicant has established that the respondent’s decisions of 23 May 2014 and 4 July 2014 relied on opinions which were not medical opinions expressed by medical practitioners. In relying upon that material, the respondent had regard to irrelevant considerations.
The applicant has established grounds for a statutory review of the decisions of 23 May 2014 and 4 July 2014. Each arose as a consequence of an improper exercise of the powers conferred by s 8.3 of the Act. Each of the decisions contained in those letters is set aside. The matters to which those decisions relate are referred back to the Commissioner of Police for consideration in accordance with s 8.3 of the Act.

Orders

I shall hear the parties as to the form of orders and costs.