Independent medical examinations procedure

Audience

Department-wide

Purpose

This procedure outlines the process for directing an employee to an independent medical examination (IME) where it is reasonably suspected that mental or physical illness or disability is causing absence from duty or unsatisfactory performance.

Overview

The Department of Education (the department) is committed to appropriately supporting and managing employees whose absence or unsatisfactory performance may be caused by mental or physical illness or disability in accordance with the requirements of the Public Sector Act 2022 (Qld) (PS Act), Directive 04/24 Independent medical examinations and Supporting employees affected by illness and disability: a practical guide to independent medical examinations for the Queensland public sector (PSC Guideline).

Managers and employees are expected to work together early to:

• manage work performance and absence in an appropriately supportive manner, including where mental or physical illness or disability may be a contributing factor
• communicate regularly, openly and constructively, including while the employee is absent, or during performance management processes
• mutually share information, as it is likely to improve outcomes for employees’ health, safety, wellbeing and performance.

Chapter 3, Part 8, Division 5, Mental or Physical Incapacity of the PS Act provides the department the ability to direct an employee to submit to a medical examination if:

• the employee is absent from duty or the employee’s chief executive (or delegate) is reasonably satisfied the employee is not performing his or her duties satisfactorily; and
• the chief executive (or delegate) reasonably suspects that the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability.

The purpose of an IME is to obtain a written report of the examining doctor’s opinion as to whether the employee has a mental or physical illness or disability that may adversely affect the employee’s performance, and if so:

• the likely direct or indirect effect of the illness or disability on the employee’s performance;
• an estimate of how long the illness or disability or its effects are likely to last; and
• whether disclosing the report to the employee might be prejudicial to their mental or physical health or wellbeing.

This will assist the department to:

• understand whether an employee has a mental or physical illness or disability that is causing the employee’s documented unsatisfactory performance or absence; and if so
• explore opportunities for continuing employment in line with the report (including, where appropriate, through the application of reasonable adjustment) before considering ill health retirement of an employee under the PS Act; or if not
• deal with the unsatisfactory performance or absence issues in a performance management context as appropriate.

The department is committed to supporting a reframed relationship with Aboriginal and Torres Strait Islander peoples when managing medical examination processes, by promoting cultural safety, addressing bias, ensuring culturally appropriate communication, and respecting cultural rights under relevant legislation.

Responsibilities

Employees

• provide relevant and updated medical information and documents and participate in open and constructive discussions regarding the potential impact of any mental or physical illness or disability on work performance or absence. This includes:
  • confirming attendance at an IME as requested
  • attending and actively participating in an IME (when directed under the PS Act).

Principals, managers and supervisors

• engage early with employees about performance or absence concerns to explore what factors may be impacting on the employee’s ability to carry out the duties of their role
• appropriately manage and document engagement with an employee demonstrating unsatisfactory work performance or absence in accordance with the department’s policies and procedures, ensuring appropriate supports are in place
• where an employee discloses that a mental or physical illness or disability is affecting their performance or their current absence, the discussion may include:
  • exploring options for workplace rehabilitation arrangements or reasonable workplace adjustment
  • asking for current medical information from the employee, or for consent to contact their treating doctor.
• inform the human resources team of any employee reasonably believed to have a mental or physical illness or disability causing unsatisfactory performance or absence and continue to manage the employee.

Rehabilitation and return to work coordinators (RRTWCs)

• support and inform a principal/manager/supervisor of any employees who may directed to an IME as required
• collate school or work unit based information required to support an IME process, including any involvement in processes relating to the provision of rehabilitation support to an employee (excluding workers’ compensation documents).

Human resources team

• guide and inform employees, RRTWCs and principals/managers/supervisors through the IME process
• prepare appropriate documentation for the Director, Human Resources to consider for direction of an employee to attend an IME and any resulting proposed course of action

Director, Human Resources (Director, HR)

• direct employees to attend an IME in accordance with Chapter 3, Part 8, Division 5, ss.103–109 of the PS Act and the Human Resources Delegations Manual, including approval of funding for the appointment and costs incurred by the employee to attend the IME
• provide the employee with a copy of the report in accordance with the recommendations of the independent medical examiner
• advise the employee in writing of the proposed course of action following receipt of an IME report, within their authority under the Human Resources Delegations Manual. Where ill health retirement is proposed, refer the matter to the authorised delegate in accordance with the Ill health retirement procedure
• ensure all documentation is appropriately secured and the privacy of the IME report once obtained.

Internal review decision maker

• where a request for an internal review is made, determine whether the decision to direct the employee to submit to the IME was made in compliance with the conditions in Section 103 of the PS Act and the procedural requirements of Directive 04/24 Independent medical examinations
• notify the employee in writing of the internal review decision and reasons within 28 calendar days of the employee requesting the review, or a longer period agreed to by the employee in writing.

Process

Before recommending an IME, the human resources team must document consideration of more appropriate options, including reasonable adjustments and relevant workers’ compensation obligations. An employee must not be directed to remain away from work solely to establish an absence for an IME referral

Prior to commencing the formal IME process, supervisors and managers are to make every effort to identify the causes of unsatisfactory performance and absence and to resolve issues through positive performance management such as appraisal, guidance, counselling, coaching, training and development, and where practicable, reasonable adjustments, temporary variations to working arrangements and workloads. The department has a number of procedures for managing unsatisfactory performance and these are listed in the ‘Related procedures’ section. These procedures aim to improve unsatisfactory performance where possible. Should you require assistance with one of these processes, contact your relevant Human Resources Branch.

Decision makers must consider human rights and make decisions compatible with human rights. They must also consider accessibility and inclusion, the employee’s support needs and psychosocial risks throughout the process. The briefing note must record the relevant considerations and how these have informed the proposed decision.

1. Referral

Start of formal process

A direction to an IME may be considered when:

• the employee is absent from duty or the employee’s chief executive is reasonably satisfied the employee is not performing the employee’s duties satisfactorily; and
• the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.

Determine referral reason

The human resources team reviews the circumstances and the Director HR, must be reasonably satisfied that the referral meets the criteria for either:

Absence: the employee is currently absent from duty and available evidence supports a reasonable suspicion that the employee’s absence is caused by mental or physical illness or disability

Or

Performance: the employee is not performing their duties satisfactorily and the available evidence supports a reasonable suspicion that the employee’s unsatisfactory performance is caused by mental or physical illness or disability. Frequent absences (supported by evidence) may be considered as part of unsatisfactory performance referred to in section 103(a) of the PS Act but is not itself evidence of poor performance. The performance impact of the frequent absences must still be shown. (refer to PSC Guideline)

If the issue is performance, there must be:

• records to show that there have been appropriate discussions with the employee; and
• documentation to verify that the employee has been provided with a copy of these records before referral to the Director HR.

If the issue is absence then:

• this must be for a current absence from work
• it does not refer to frequent, intermittent absences whether due to illness or other reasons. (although these may also be reflected in the leave history of an employee with a current absence)
• A pattern of absences that affects work performance is a performance issue rather than a current absence. The Director HR must be reasonably satisfied that the performance impact of these absences has been identified and discussed with the employee.

If one of the above reasons apply (supported by documented evidence), the HRBP can consider appointing a doctor to examine the employee in order to obtain a written medical report.

For further detail regarding complying with the ‘absence’ or ‘performance’ reasons above, refer to section 4.1 in the PSC Guideline.

2. Prepare briefing note with background information

The human resources team prepares the briefing note with background information recommending direction for the employee to an IME, the draft direction letter to the employee and the draft letter to the examining doctor.

The background information must:

• be specific to either absence OR performance (not both)
• not use, reference or paraphrase workers' compensation documents relating to an employee’s application for compensation or common law claim for damages by the worker under the Workers’ Compensation and Rehabilitation Act 2003 (Qld) (‘workers’ compensation document’)
• be relevant only to the current mental or physical illness or disability and current circumstances contributing to their unsatisfactory performance or absence
• include details of the employee’s role, duties and responsibilities, an outline of the work environment (if relevant), a chronology of the impact that the employee’s mental or physical illness or disability has had on their performance and the supports and actions that the department has implemented to date.

The background information is not to contain any medical or other information that is not directly or indirectly related to the effect and management of the employee’s mental or physical illness or disability on their work performance or current absence.

Where an employee provides a medical report or consents to the department being provided with a medical report from a third party (such as a treating doctor, occupational therapist, or QSuper), the department may use the report (excluding workers’ compensation documents) to support decisions under Chapter 3, Part 8, Division 5 of the PS Act (Mental or Physical Incapacity), and disclose it to the examining doctor for the purposes of section 104 of the PS Act.

An existing medical report may provide additional relevant information, but cannot replace the report obtained from an examination directed under section 104 of the PS Act to authorise action under section 107

If satisfied the requirements of the PS Act are met, the Director HR signs the briefing note approving the direction of the employee to an IME which includes funding approval.

Additional funding

The human resources team is to organise reasonable travel and accommodation if required. Any costs associated with travel or accommodation require prior approval from the Director HR.

3. Arrange appointment and advise employee

Once the brief, including funding, has been approved an appointment is made with the examining doctor by the human resources team.

Choose an examining doctor – under section 104, of the PS Act, the department may appoint a doctor to examine the employee and provide a written report on the results of the examination. The department should choose a doctor who:

• is independent; and
• has expertise in the relevant area of the suspected mental or physical illness or disability; and
• is not currently treating or has previously treated the employee – this is to eliminate a real or perceived conflict of interest.

Once an appointment is secured, the employee is contacted by the human resources team to advise them of the decision to move to direction and provide them with the details of the date and time of the appointment. This is to ensure that the employee is prepared for the final documentation once it is prepared.

Where the employee raises reasonable concerns about the doctor to which they have been directed (e.g. gender, location) the region may consider appointing an alternative doctor who is suitably qualified to examine the employee and provide a written report. The department has the final decision on which doctor is to be used and the timing of the appointment.

4. Correspondence

Letter to employee

The human resources team prepares the direction letter to the employee and must provide 28 calendar days' notice of the examination (unless the employee agrees in writing to a shorter notice period) and advise the employee of the following:

• the basis for the direction, including the evidence relied upon to establish both conditions in section 103 of the PS Act
• the process to be undertaken following the receipt of the medical report by the department
• the steps the department will take to ensure confidentiality/privacy of the information contained in the medical report
• the steps that will be taken if the examining doctor considers that disclosing the information in the report to the employee might be prejudicial to the employee’s mental or physical health or wellbeing
• that the department will meet the cost of the medical examination and reasonable associated expenses
• a copy of the correspondence and information provided to the appointed examining doctor
• a copy of Chapter 3, Part 8, Division 5, ss.103 – 109 of the PS Act
• the employee's internal review rights; (refer to Fact sheet - Independent medical examinations - Information for employees) and
• the employee’s appeal rights (refer to Fact sheet - Independent medical examinations - Information for employees).

Letter to examining doctor

The human resources team prepare the referral letter to the examining doctor which must meet the requirements of the directive and guideline and include the following:

• a description of the employee’s role, duties and responsibilities (e.g. a role description)
• a chronology of events (e.g. absence history, performance issues and management response(s) including the supports and actions that the department has implemented to date
• specific questions for the examining doctor relevant to the impact of the mental or physical illness or disability, including in relation to the employee’s ability to perform the inherent requirements of their role
• relevant medical reports and information (in accordance with guidelines)
• a copy of Chapter 3, Part 8, Division 5, ss.103–109 of the PS Act.

The referral letter must draw the examining doctor’s attention to clauses 12.1 and 12.2 of Directive 04/24 and section 106 of the PS Act. The report must address the required medical opinions and include only information relevant to the effect or management of the illness or disability on work performance or absence. The letter must explain that the employee is attending under a statutory direction and must not be asked to sign a standard consent form for the examination. This is separate from obtaining the employee’s written consent to contact their treating doctor.

Employee confirms the appointment

The employee is responsible for contacting the person nominated in the letter within 3 business days of receipt of the direction letter to confirm that they will be attending the appointment or will request an internal review or appeal. If the employee is unable to attend for legitimate reasons which have been provided in writing and approved by the delegate, the delegate should reschedule the medical examination appointment.

5. If the employee requests an internal review or lodges an appeal

Internal review

An employee may request an internal review if they believe the decision to require an IME does not meet the conditions in section 103 of the PS Act or the procedural requirements of Directive 04/24.

This written internal review request must be clear as to why they believe the direction does not meet the conditions of the PS Act or the procedural requirements of Directive 04/24 and be submitted within 14 calendar days of receiving the notice. This should be emailed to the nominated contact on the direction letter and InternalReview@qed.qld.gov.au.

The internal reviewer will have access to all information considered for the original decision. Information about this review right is available under the Directive 04/24 Independent medical examinations. If an internal review is requested the department must not proceed with the direction to IME until the interview review is finalised.

Appeal

When an employee believes the decision to require them to submit to a medical examination does not satisfy the conditions of section 103 of the PS Act, they may appeal the decision under Part 10 Division 2 of the PS Act. The appeal must be lodged with the Queensland Industrial Relations Commission within 21 calendar days after the date the employee received the direction letter.

An Appeals Guide to the process is available on the Queensland Industrial Relations Commission website.

If an appeal is lodged the department should not proceed with the direction to IME until the appeal is finalised.

6. IME attendance

Employee attends the medical examination

Submitting to an IME requires more than mere attendance at the IME appointment. The employee must actively participate in the medical examination, co-operate with the examining doctor and provide honest responses to questions about their relevant medical history. Submitting to an IME does not require the employee to hand over past medical records.

Employee does not attend the medical examination

If the employee does not attend the scheduled examination, the employee must not have any paid or unpaid sick leave approved for any period that they do not submit to the medical examination, except where the employee has requested an internal review or appealed and is awaiting the outcome (as specified in section 105 of the PS Act).

If an employee fails to comply with a lawful IME direction without reasonable excuse, disciplinary action may be considered under section 91(1)(d) of the PS Act and the applicable discipline directive. Late cancellation alone does not establish grounds for disciplinary action; the employee’s explanation and circumstances must be considered.

The human resources team engage with the employee as to the reason that they may not have attended the appointment. If the employee supplies a reasonable excuse in writing and approved by the delegate, the medical examination appointment will be rescheduled.

If the employee does not provide a reasonable excuse, proceed with relevant disciplinary processes for an alleged contravention, without reasonable excuse, of a direction given by a responsible person (section 91(1)(d) of the PS Act).

7. Review the IME report and provide a copy to the employee

The Director HR reviews the IME report and, if it contains information that is considered irrelevant, the Director HR must seek advice from the examining doctor as to the relevance of the information, whether it should be removed, and the report reissued.

The Director HR must provide the employee with a copy of the examining doctor’s report as soon as practicable after receiving it, unless the examining doctor advises that disclosure of information in the report to the employee may be prejudicial to the employee’s mental or physical health or wellbeing. If this occurs, the Director HR must make the disclosure to a doctor nominated in writing by the employee. When providing the report to the nominated doctor, the department must cover reasonable cost of the employee’s visit to their nominated practitioner.

If direct disclosure might prejudice the employee’s health or wellbeing, the human resources team must advise the employee in writing and explain that they may nominate another doctor in writing to receive the report. When sending the report to that doctor, explain the examining doctor’s concern and give the employee a copy of the covering correspondence without the report. If no doctor is nominated, support the employee to identify a suitable doctor and participate meaningfully in the process.

8. Propose course of action in a timely manner

The Director HR reviews the IME report alongside all other relevant information and a briefing note is prepared outlining considerations and recommendations of an appropriate course of action in a timely manner.

The following are examples of actions that may be taken upon receipt of the examining doctor’s report:

• take no action (e.g. in the event the report indicates that a mental or physical illness or disability is temporary and the employee can safely return to full duties in the foreseeable future)
• continue or initiate action to manage unsatisfactory work performance or return to work from a current absence, if there is no medical reason for the unsatisfactory performance or current absence
• continue or commence action to manage the employee and their mental or physical illness or disability (e.g. provide ongoing rehabilitation support)
• provide reasonable adjustment, to enable the employee to continue in their substantive position (e.g. modify work tasks, implement graduated return to work arrangements or a change to working hours, or consider other actions, if practicable) in accordance with the Reasonable adjustments procedure
• explore opportunities for a suitable vacant role(s) and if/when possible transfer or redeploy the employee to a suitable position within the work group or the department or Queensland public service on the basis that the employee is medically incapable of performing the genuine occupational or inherent requirements of their substantive position for the foreseeable future but medical advice states they can undertake the inherent requirement of the suitable vacancy
• ill health retire the employee as a last resort in accordance with the Ill health retirement procedure. Retirement may be considered for an employee who is unable to return to their substantive position, either permanently or for the foreseeable future, and it is not reasonably practicable to transfer or redeploy the employee. The decision whether or not it is reasonably practicable to transfer or redeploy the employee depends on the circumstances of each case. (note the Regional Director HR is not the delegate for this action).

In proposing the course of action particular consideration must be given to:

• whether the provision of reasonable adjustment to accommodate the employee’s mental or physical illness or disability would genuinely impose unjustifiable hardship on the department;
• whether the employee can perform the genuine occupational or inherent requirements of their substantive position; and
• whether there are any statutory protections applying to the employee, for example, section 297 of the Industrial Relations Act 2016 (Qld) or section 232B of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).

The Director HR must provide timely written advice to the employee on the proposed course of action following receipt of the IME report, to ensure the decision is based on current medical information. The correspondence must clearly outline the proposed action, the reasons for the proposal, and any alternative actions considered, including why the alternatives were not considered appropriate. It must also include any other material relied upon by the doctor or the department in proposing the course of action, except where ill health retirement is the proposed outcome. Please refer to the Ill Health Retirement procedure for further details.

Note: The employee must be provided with a reasonable opportunity to respond to the proposed course of action, with a minimum period of 14 calendar days in line with the principles of natural justice and procedural fairness. The proposed action letter must also explain that the employee may submit additional relevant material, including medical reports, as part of their response, excluding workers’ compensation documents. Requests for a longer response period must be considered by the delegate taking the employee’s circumstances into consideration.

9. Confirm the course of action following IME

If the employee does not respond to the proposed course of action within the 14 calendar day timeframe (or longer timeframe as agreed), the Director HR must consider whether to take action under section 107 of the Act based on the information available to them. If a decision is made to proceed, the employee must be advised in writing of the outcome and the reasons for the decision.

If the employee responds, the Director HR must consider the employee’s response, including any additional submissions and other relevant information available (excluding workers’ compensation documentation), in determining whether the proposed course of action remains appropriate. A further briefing note must be completed documenting considerations made, and, if necessary, a revised course of action prepared for consideration. The employee must be advised in writing of the outcome and the reasons for decision.

The final decision and reasons must be provided in writing as soon as possible, together with any applicable rights of review and available support. Where employment continues, the manager and human resources team must monitor the agreed arrangements and review them if the employee’s circumstances change.

The human resources team must retain the IME direction and report, together with the supporting briefs, correspondence, employee submissions and decisions, in accordance with departmental records requirements. Access must be restricted to people with a legitimate role in the process. Records must be managed under section 108 and chapter 8, part 3 of the PS Act and applicable information privacy legislation.

Definitions

Legislation

• Public Sector Act 2022 (Qld)
• Public Sector Regulation 2023 (Qld)
• Anti-Discrimination Act 1991 (Qld)
• Disability Services Act 2006 (Qld)
• Disability Discrimination Act 1992 (Cth)
• Right to Information Act 2009 (Qld)
• Information Privacy Act 2009 (Qld)
• Work Health and Safety Act 2011 (Qld)
• Industrial Relations Act 2016 (Qld)
• Industrial Relations Regulation 2018 (Qld)
• Workers’ Compensation and Rehabilitation Act 2003 (Qld)
• Human Rights Act 2019 (Qld)
• Directive 04/24 Independent medical examinations
• Directive 02/24 Positive performance management
• Directive 11/20 Individual employee grievances

Delegations/Authorisations

• Human Resource Delegations Manual (DoE employees only)

Other resources

• Supporting employees affected by illness and disability: a practical guide to independent medical examinations for the Queensland public sector (PSC Guideline)
• Employee performance and development policy
• Individual employee grievances procedure
• Managing unsatisfactory performance (excluding school based teachers and principals) procedure
• Managing unsatisfactory performance - Principals procedure
• Managing unsatisfactory performance - Heads of program, heads of school, assistant principals and deputy principals procedure
• Managing unsatisfactory performance - State school teachers procedure
• QIRC Appeals Guide
• Public Service Commission Discipline Guideline
• Workplace rehabilitation procedure
• Reasonable adjustments procedure
• Ill health retirement procedure

Superseded versions

Previous seven years shown. Minor version updates not included.

4.0 Independent medical examination procedure

3.0 Independent medical examinations procedure