The idiom “I’m chained to my desk” is one familiar to many, but for the Queensland District Court the relationship between the workplace and incarceration may not always stop there.

In Pere v Central Queensland Hospital and Health Service[1], a hospital fire safety and security officer brought an action against his former employer, Queensland Hospital and Health Service (QHHS) for battery (although it was misconstrued as assault) and negligence after hospital staff required him to take a blood and urine test on suspicion of him being intoxicated at work.

James Pere claimed to have suffered psychiatric injury due to the negligence of QHHS and/or assault by its employees when taking the samples. Although he apparently complied at the time the samples were taken, he claimed the procedure was ultimately non-consensual.

Butler DCJ suggested that in the context of medical procedures and tests, apparent consent by the subject may not actually be consent where the person requiring the test is the subject’s employer.

“The approach to be adopted when considering whether consent has been given to medical injections was considered in Freeman v Home Office (No. 2). In that case the plaintiff prisoner brought an action in battery against a prison doctor for administering drugs by injection. It was argued that as the doctor in the prison situation had power to influence the prisoner’s situation, real consent had not been given. In other words that it was induced by duress. The court held that whether consent had been given was a question of fact.

In my view this approach applies similarly to an employer/employee situation such as existed here.”[2]

And so in Pere, the question of whether consent was actually given was treated as a question of fact. In this case the plaintiff’s asserted objections were discredited as he was found to be intoxicated and his account of events did not accord with multiple other witnesses.[3]

Nonetheless, employers should be aware that questions of consent to medical procedures and tests, which they may require of their employees, become complicated because, as “in a prison setting, [where] a doctor has the power to influence a prisoner’s situation, so in a workplace an employer has the power to influence an employee’s situation. As a result  “a court must be alive to the risk that what may appear, on the face of it, to be a real consent is not in fact so.” [4]

This risk is also amplified where the employer has no policy in place with respect to drug and alcohol testing, as was the case here. In Pere The Hospital Operations Manager conceded there was “no policy in place at the time that could allow the employer to take a sample”.[5] As a result QHHS’s employees technically acted against its own policy and procedures. The importance of an effectively communicated and consistently applied drug and alcohol policy has been stressed previously by the Fair Work Commission.

Clear policies towards drugs and alcohol are essential, but even prisons have those. Ultimately, an employee’s consent to medical testing should be confirmed by their employer with upmost caution, in every circumstance.

Thank you to William Dawes for his contribution to this article.

[1] [2017] QDC 2

[2] Ibid, [28]-[29]

[3] Ibid, [76]

[4] Freeman v Home Office (No. 2) [1984] 2 WLR 802 at 812; citing from McCowan J [1984] 2 WLR 130 at [145].

[5] Above n 1, [30]

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