It is well known that members of the emergency services are exposed to multiple traumatic events over their career and this makes them susceptible to psychological injury including Post-Traumatic Stress Disorder (PTSD). It might also be accepted that within these services that ‘it’s not in the culture to discuss your mental health with other … officers’. Admitting that one is having trouble coping may not only bring peer pressure, it may limit further career opportunities and even tenure in the job that may be central to a person’s identity. The dilemma of having to take steps to care for a worker, and that means both their physical and mental health, whilst respecting an adult’s right to privacy and to make their own health care decisions has been recognised by the courts, not necessarily to the employees benefit.
The most recent case is [Name omitted] v State of New South Wales  NSWDC 119 that in turn relied on an earlier decision in Hegarty v Queensland Ambulance Service  QCA 366.
The plaintiff was a police officer with NSW Police from 6 May 2003 until her discharge on 7 June 2012. We don’t need to detail the events suffice to say that she attended many traumatic events that exposed her to scenes of death, injury and violence. She developed symptoms of psychiatric injury and took time off work and received workers compensation for time off.
Workers compensation is a no fault scheme. The claimant does not have to prove negligence but the amount of compensation payable is strictly limited by the relevant legislation. In 2014 she began an action against the State, on behalf of NSW Police, alleging her injuries were caused by or aggravated by negligence or a lack of reasonable care, by the Police. A claim for negligence can lead to more generous awards than workers compensation but does require proof of negligence.
In this case the plaintiff alleged that the Police Force was negligent  in that it failed to take ‘… active measures to avoid the risk of further psychological injury to the plaintiff …’ The difficulty in saying that the police failed to take action such as that described, is that it requires the police force (or any employer) to know that action is required. The court referred to comments made by Keane JA of the Queensland Court of Appeal in Hegarty v Queensland Ambulance Service  QCA 366. Keane JA (as he then was, he’s now a judge on the High Court of Australia) said:
 … It must be said immediately that, while an employer owes the same duty to exercise reasonable care for the mental health of an employee as it has for the employees’ physical well-being, special difficulties may attend the proof of cases of negligent infliction of psychiatric injury. In such cases, the risk of injury may be less apparent than in cases of physical injury. Whether risk is perceptible at all may in the end depend on the vagaries and ambiguities of human expression and comprehension. … Whether a response to a perceived risk is reasonably necessary to ameliorate that risk is also likely to be tendered with a greater degree of uncertainty; the taking of steps likely to reduce the risk of injury to mental health may be more debatable in terms of their likely efficacy than the mechanical alteration of the physical environment in which the employee works…
 The area of debate in the present case concerned the extent to which the defendant was duty-bound to ensure that its superior officers should intervene with individual ambulance officers in relation to possible signs of deterioration in their mental health. The private and personal nature of psychological illness, and the consequential difficulties which attend the discharge of an employee’s duty in this respect, must be acknowledged as important considerations. The dignity of employees, and their entitlement to be free of harassment and intimidation, are also relevant to the content of the duty asserted by the plaintiff. Issues of some complexity arise in relation to when and how intervention by an employer to prevent mental illness should occur, and the likelihood that such intervention would be successful in ameliorating the plaintiff’s problems.
 … The plaintiff’s case means that the employee must be concerned, not only with non-performance by the employee as an employee, but also of possible episodes of unhappiness in the employee’s private life. It is not self‑evidently necessary or desirable that employees’ private lives should be subject to an employer’s scrutiny.
 Issues didn’t necessarily arise, however, as to their identification of a sufficient basis for the making of a suggestion by the defendant that the plaintiff seeks psychological assessment and treatment. The resolution of this issue is fraught with difficulties peculiar to cases of psychiatric injury. In cases of apprehended psychiatric injury, unlike cases concerned with the amelioration of physical risk in the workplace, important values of human dignity, autonomy and privacy are involved in the formulation of a reasonable system of identification of psychiatric problems which may warrant an employer’s intervention in the making of a decision to intervene. The employee may not welcome intrusion by a supervisor, which suggests that the employee is manifesting signs of psychiatric problems to the extent that help should be sought, especially if those problems are having no adverse effect upon the employee’s performance of his or her duties at work.
 Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee, even one who is in a supervisory position. An employee is known to be at risk of psychiatric injury, prospects of promotion may be adversely affected and questions may arise as to the entitlement, or even obligation, of the employer to terminate the employment. Employees who are ambitious, and eager for promotion, and whose signs of dysfunction might equally be signs of frustrated ambition, might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee’s ability or performance and prospects of promotion. Such employees can be expected to pursue such remedies as may be available for their grievance over the intrusion. Dissatisfaction or resentments of this kind may give rise to industrial relations issues for the employer, as well as defamation issues for other employees. A conclusion that an employee has acted unreasonably in failing to recommend psychological assessment and treatment cannot be made without recognising that the employer’s decision must be made in a social, economic and legal context which includes these considerations.”
Given that symptoms of mental illness may be different too, and personal to the injured person, an employer cannot take steps if the employee does not disclose their issues. In this case, according to Mahony DCJ (at ) the plaintiff’s claims relied:
…on the following failures of the defendant … once the plaintiff had been identified as an officer at risk, namely:
- To follow the PMO and that of the police psychologist’s advice in 2006 to ensure the plaintiff undertook a course of psychological counselling, and to appoint a mutually acceptable officer to mentor and monitor the plaintiff’s welfare;
- The failure in 2009 to follow up the [Local Area Command’s] … own reporting system, and its standard operating procedure, having identified the plaintiff as an officer who had attended five or more critical incidents.
But the judge found (at ):
The plaintiff had lied to the PMO by understating her psychological problems, in order to get her appointments back. This was described as being “result driven”. She also would not have gone to the EAP at this time, unless directed to do so, and there was no power to direct her to do so.
Further (at ) ‘It was the plaintiff’s decision to return to full-time duties …’ though she did make ‘a number of applications to transfer away from general duties, none of her applications were successful.’ Finally under the procedures of the Local Area Command she was identified as a person at risk and she was contacted and made aware of assistance available to police through the Employee Assistance Program. The plaintiff advised that she was seeking independent assistance (see ) but despite making appointments for assistance, she did not keep them and did not advise any of her superiors that she was ‘not in fact seeking counselling. Nor did she seek any medical treatment for her psychological problems until June 2011’ ().
The judge said (at - and ):
It is clear that the plaintiff did not make a candid disclosure as to the extent of her psychological problems to the PMO or to the police psychologist in 2006. I accept the submission made on her behalf that that was “result driven”, namely, she wanted her appointments back and to return to full-time general duties work. Notwithstanding the recommendations made by both the psychologist and the PMO, the defendant was not aware of the full extent of her psychological condition at that time.
I also accept on the balance of probabilities, that from the plaintiff’s perspective, and that of other low ranked officers in the Police Force, there was a stigma attached to disclosing mental health problems. Such disclosure could affect both prospects of promotion and relationships with other officers with whom they had to work. However, the plaintiff had disclosed psychological problems in her workers compensation application in 2006, her claim for closed period workers compensation had ultimately been accepted and she had subsequently been certified as fit to return to full duties by the PMO. At no time thereafter did she report psychological problems arising from her work as a police officer…
The plaintiff was aware at all times of the support services available, including the EAP, the peer support and Police Chaplain, but at no time sought out those services. Finally, when identified as an officer at risk in 2009 … the plaintiff responded that she was seeking counselling outside work. Once she transferred to the Exhibits Office in 2010, notwithstanding that she suffered an exacerbation of her symptoms on occasions, she was no longer required to attend traumatic incidents.
With regard to negligence and breach of duty of care, His Honour said (at -):
Having regard to that history, I find that it was a reasonable response throughout that period for the defendant to do nothing in relation to the alleged breach identified by the plaintiff, i.e. the failure to implement the recommendations made by the PMO and the police psychologist in 2006. … The defendant had no way of knowing in 2009 and 2010 that the plaintiff continued to suffer a psychological reaction to her exposure to traumatic incidents. The report of Dr Gertler in 2007 advised that her symptoms were diminishing, and when identified as being at risk in May 2009, the plaintiff responded by advising that she was receiving counselling outside of work. The defendant’s system for identifying police officers at risk at that time was a reasonable response, and in the circumstances here, it could have done nothing more by way of response to that risk. Any “meeting” with the plaintiff would have provoked no further disclosure of her problems at work.
Further, the evidence established that the plaintiff was suffering personal problems outside of her workplace… For the supervising officers … to intervene in respect of those matters would give rise to the difficulties highlighted by Keane JA in Hegarty as set out above. The plaintiff has therefore failed to establish that the defendant has breached its duty of care to her, and there will be a verdict for the defendant…
I have been mindful of the need to report this case. The list of matters that the plaintiff attended are traumatic to read, let alone to attend. Whilst the report of the decision is public, reporting it here makes it even more public and brings it to the attention of people who may know the plaintiff. That, no doubt, could increase her trauma and injury. I have not mentioned her name, but it’s not hard to find. It is however important for readers of this blog to be informed of relevant legal principles, and this case is relevant and identifies lessons other can learn from, or at least should be aware of.
Policing and emergency service work is work that most of the community could not and would not want to undertake. As Gummow and Hayne JJ said in New South Wales v Fahy  HCA 20 at :
Police officers are required to undertake tasks of a kind that few, if any, commercial employers could ask of their employees. Police officers must confront death, injury and destruction. It is they who must waken the sleeping household to tell them of the sudden death or serious injury of another. Ms Fahy herself spoke of incidents she had attended in three years of police service: a fatal plane crash, a fatal industrial accident, numerous fatal car accidents, overdoses and hangings. And as well as confronting the consequences of folly and accident, police officers must confront the wrongdoer bent upon harm to both the police and members of the public. It is tasks of these kinds that are encapsulated (s 6(2)(a), 3(b)) by the anodyne description of a function of the Police Service as being “the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way’. And it is tasks of these kinds that constitute the duties of a police officer and may be the subject of lawful orders to a police officer. To neglect or refuse either to obey those orders or to carry out those duties was a criminal offence. …But the [safe system of work] that was devised had to be one which did not detract from the effectuation of the statutory purposes and functions of the Police Service. Examination of the facts and arguments in this case will reveal that too little attention has hitherto been given to these considerations.
The work carries the risk of psychological injury and that risk cannot be reduced to zero. The work place of a police officer (or ambulance officer/paramedic or fire fighter) cannot be made safe. But all an agency such as NSW Police or Queensland Ambulance can do is put in place reasonable measures to respond to officers in need.
That response requires those officers to disclose their symptoms or to at least answer honestly when asked. Supervisors cannot compel people to take advantage of the support services offered and cannot intrude into people’s personal lives to investigate their state of mental wellbeing. As was said in Hegarty:
Employees may well regard such an intrusion as an invasion of privacy. Employees may rightly regard such an intrusion as a gross impertinence by a fellow employee… Employees … might rightly be deeply resentful of suggestions which reflect an adverse assessment of the employee’s ability or performance and prospects of promotion… A conclusion that an employee [sic; I think this should say ‘employer’] has acted unreasonably in failing to recommend psychological assessment and treatment cannot be made without recognising that the employer’s decision must be made in a social, economic and legal context which includes these considerations.
On behalf of the community I thank the officer the subject of this case, and Mr Hegarty for their service and recognise the terrible price they have paid for that service. But that price does not mean that their employer was negligent.
Identifying that a person is at risk or is suffering psychiatric injury requires consideration of matters of utmost privacy. If the employee does not take advantage of assistance that is on offer, or fails to disclose or worse, lies about their situation, there is little an employer can do. We can recognise that there are cultural barriers to such disclosure and that is something the employer should seek to negate (as they did here, see ). Given that it is not reasonable or possible to require an employer to ‘ensure’ that a person seeks assistance or takes advantage of that assistance.
Thank you for this article as a firefighter on a return to work program following a mental health injury that saw me take six months full time leave you have hit the nail on the head when you talk about culture.
In our service I believe that is changing however the pressure not to report is still there. My circumstances where such that I was keeping it quiet as I had applied for a promotion. It got the point where I received a trigger email and literally walked out of the office.
Even now eight months after I am circumspect about how much I tell to who. My direct supervisor has been fantastic but from time to time when talking to a small number of fellow works I wonder what they are thinking ‘that I was weak, couldn’t hack the pace’, etc.
Also I think the think in your second last para should perhaps be thank.
Keep up the good work
Thanks for your comments and your service. Thank you also for picking up the typo; that’s been corrected