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Court of Appeal clarifies section 137 of the Public Service Act 2008 (Qld) - End date for a suspension from duty can be made by reference to a specified event

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On 12 February 2021, the Court of Appeal (Sofronoff P and Fraser and Mullins JJA) delivered judgment in Hanson & Ors v Walters [2021] QCA 18, dismissing an appeal brought by Metro North Hospital and Health Service (MNHHS) against Justice Ryan’s judgment in Walters v Hanson & Ors [2020] QSC 216.

The decision is significant as it confirms that the end date for a suspension can be specified by reference to an event and provides some guidance as to how the end date for suspension decisions ought to be framed.

At first instance, Ryan J quashed two decisions from the dates on which they were each made. The first decision was made on 28 August 2019 (the suspension decision) to suspend Professor Walters from duty pursuant to s 137 of the Public Service Act 2008 and the second decision was made on 3 September 2019 (the credentialing decision) to suspend Professor Walters’ scope of clinical practice applicable to MNHHS, on the basis his employment with MNHHS was currently suspended.

In this case, the suspension letter stated that the suspension would “remain in place until an investigation can be undertaken into the concerns and the outcome of those investigations has been considered, unless otherwise determined”. Justice Ryan held that:

  • a suspension notice under s 137 had to specify the period of the suspension by reference to dates or in terms of its duration; and
  • even if the end date of the suspension could be specified by reference to an event, the use of the words “unless otherwise determined” rendered the suspension decision non-compliant with s 137 because it did not state the end date in an ascertainable way. Her Honour Justice Mullins did not accept that this phrase was in reference to the power under s 137(9) (now s 137(8)) to bring the suspension to an earlier end.

Mullins JA (with whom Sofronoff P and Fraser JA agreed) held that:

  • Section 137 requires the notice of suspension to convey the period of the suspension by stating when the suspension starts and ends. That means the period of suspension has to be specified in, or ascertainable from, the notice.  There is no difficulty with the end of the period of the suspension being specified by reference to an event, provided the notice describes in clear terms the event that ends the period.  However, in this case, it was not apparent from the notice what event would bring the suspension to an end: [23]-[27].
  • Because of the power conferred under s 137(9), it was unnecessary for the notice to include a reference to that power, if that were the purpose of the addition of the words “unless otherwise determined”. Because there was no power for the chief executive to extend the existing suspension, the words “unless otherwise determined” could refer only to a decision by the chief executive to bring the suspension to an end at a date earlier than the end of the period of the suspension: [32].
  • There was no error shown in relation to the primary judge’s choice of the date on which the order quashing the suspension decision took effect: [34]-[40].
  • As the credentialing procedure regulates credentialing for the provision of health services to the public by practitioners in any facility administered by MNHHS, it was properly characterised as having a public function, purpose or operation. There was therefore no error in the primary judge’s conclusion that the credentialing procedure is a standard or guideline of a public nature, and therefore a statutory instrument, and therefore the credentialing decision was a decision under an enactment for the purposes of the Judicial Review Act 1991: [5], [41]-[51].

Tips for suspension notices following this Court of Appeal case:

  • Suspension notices can specify an end date by reference to an event, but care must be taken to ensure that the event identified is sufficiently clear and ascertainable.
  • In specifying an end date for suspension by reference to an event:
    • avoid events which may be uncertain, for instance avoid attaching the end of the suspension period to the consideration of a report or outcome of an investigation (where no specific timeframe for such consideration to occur is specified);
    • identify an event or period which has a definite end date or period, for instance 14 days following receipt by the decision maker of the investigation report.
  • Where the end date for suspension is specified by reference to an event, care should be taken to ensure that the impending occurrence of the event will prompt consideration of whether the suspension should come to an end or a fresh suspension decision should be issued.
  • It continues to be open for the end date for a suspension to be specified by reference to a specific date or duration. This is particularly appropriate in cases where an event may not be clearly ascertainable.
  • The words “unless otherwise determined”, when stating when a suspension will end, can only be taken to mean a decision to bring the suspension to an end prior to the end date (see s 137(8)). Whilst it is unnecessary to use the words “unless otherwise determined” their inclusion in a suspension notice will not render the suspension non-compliant with s 137(2)(a).

Our summary of the decision at first instance is available here.