5 June 2000
Mr Bruce Barber
Mr Chris Wheeler
Office of NSW Ombudsman
Level 3, 580 George street
SYDNEY NSW 2000
Facsimile: 9283 2911
Telephone: 9286 1081
Tollfree: 1800 451 524
"AMA NSW - REFERRALS AT THE INSTIGATION OR INSISTENCE OF THE PATIENT’S EMPLOYER, GUIDELINES FOR PSYCHIATRISTS:
This issue has become a problem in the context of an employer’s response to an employee’s “whistleblowing”, i.e. where employees have raised concerns over corruption, mismanagement, waste, or practices involving risk to the public occurring with an organisation, or other such matters, and where the employer is reacting adversely to the raising of those concerns. In these circumstances, insistence by the employer on referral to one or more psychiatrists has become a common means of discrediting or [and] getting rid of the employee, in a manner reminiscent of the Soviet use of psychiatry in dealing with political dissidents …
"ENDORSED BY THE COUNCIL OF NSW BRANCH OF THE AMA TUESDAY 20 APRIL 1993"
Why has your office not acted?
This has cost me personally some hundreds of thousands of dollars.
The same 'HealthQuesting'/MAP procedures have been applied against thousands of other public servants.
The documents which I have attached have been forwarded, together with my previous complaints, to Audit Office, Ombudsman, ICAC - the issues have been raised year after year. This is frustrating and incomprehensible to me
I am deeply concerned that this office has not appeared to have acted in the past to remedy the situation for me. The issues have been repeatedly reported - 'HealthQuesting' continues as in the AMA quote above. This raises questions and I am asking:
At the community's level:
I recently supplied further material in relation to my case to your officer Mr Watson, and asked Mr Watson to present it to you and I would fax further substantiation.
The difficulty is that due to non-addressal in the past, and attempted cover-ups, the issues accumulate, re-occur and compound to the stage where there are now hundreds of documents relevant to fixing the situation. The situation cannot now be described in one epistle.
Therefore I am submitting partial information and ask that a capable office take responsibility and interact with me to whatever extent it requires to achieve addressal.
As already notified to you in my previous Public Disclosures 1995 to the present:
During these years, my employer TAFE (now DET/TAFE) have arbitrarily attempted to purport many conflicting severances of my employment during 1995, 1996, 1997 and 1998.
It is obviously false that TAFE can sever my employment without due process in accordance with legislation, policy and guidelines. Equally, if I choose to sever the employment contract I must do so within the confines open to me: submit in writing a request to either resign or retire.
I have never submitted in writing a request to either resign or retire.
TAFE have never carried out dismissal proceedings.
A permanently appointed employee's employment status is either employed or terminated. Either TAFE carries out dismissal proceedings or else the employment stands.
This and the following sections again and continually constitute my Protected Disclosures from 1995 to date.
I ask that I may meet with a representative of the Ombudsmans office to clearly explain the situation (as I see it) and obtain feedback before we moved to further aspects of the situation. That way we will not be misunderstanding each other, and the Ombudsman may obtain complete information in order to act efficiently and effectively.
1 Public Sector Management Act states in part: s36 Incapable officer may be retired (1979 Act, s 78)
(a) an officer employed in a Department is found [Emphasis added]to be unfit to discharge or incapable of discharging the duties of the officer's position, and
(b) the officer's unfitness or incapacity:
(i) appears likely to be of a permanent nature, and
(ii) has not arisen from actual misconduct on the part of the officer, or from causes within the officer's control,
the Governor may [Emphasis added], on the recommendation of the appropriate Department Head, cause the officer to be retired.
2 Technical and Further Education Act:
Incapable officer may be retired:
(a) a member of the staff of the TAFE Commission is found [Emphasis added]to be unfit to discharge or incapable of discharging the member's duties; and
(b) the member's unfitness or incapacity appears to be of a permanent nature and has not arisen from actual misconduct on the part of the member (or from causes within the member's control),
the TAFE Commission may cause the member to be retired.
3 (I) Under the Enterprise Agreement signed by TAFE there is no such thing as a forced retirement [Ref: NSW Teachers Federation]
(II) TAFE have not disclosed any guidelines which override the employee's right to elect his/her own retirement.
4 Court Case: in Bliss v South East Thames Regional Health Authority  it was held that:
" It was an implied term of the plaintiff's [employee Bliss's] contract of employment that the authority would not without reasonable cause conduct itself in a manner calculated, or likely to damage or destroy the relationship of confidence and trust between the contracting parties: that in requiring the plaintiff [employee Bliss] to undergo a psychiatric examination when there was no mental or pathological illness but merely a severe degree of breakdown of personal relationships, and in suspending him when he refused to submit to such an examination, the defendant [employer South East Thames Regional Health Authority] was in breach of that implied term; and that the breach, going to the root of the contract, was so fundamental as to constitute a repudiation of the contract of employment.
TAFE have difficulty carrying out a legitimate dismissal because they admit that my performance of duties was satisfactory in all respects; therefore they do not have grounds to carry out dismissal proceedings.
TAFE know this because they have repeatedly purported or pretended to terminate my employment and right to compulsory superannuation.
TAFE know that they do wrong because they hid their actions knowing that they do not stand up to public scrutiny.
TAFE repeatedly changed their story - and relied on the 'watchdogs' (including ICAC, Ombudsman etc) to condone this by turning a blind eye and inaction.
To substantiate this I attach
TAFE have claimed through the years that outside organisations' (HealthQuest and MAP) documents terminated my employment.
However only TAFE itself makes the decision as to whom it will employ/dismiss. And, no-one has ever found me incapable of discharging my duties. No-one has named any duty which I failed to discharge.
TAFE have not carried out dismissal proceedings
The false "retirement" anomaly appears to apply to each person which HealthQuest and MAP have purported to have dismissed/retired from their legitimate employment contract when the public sector employer has chosen to act as if this was factual dismissal.
This anomaly has apparently illegally deprived some thousands of NSW teaches of their jobs (Ref: NSW Teachers Federation), and similarly and compoundingly many more employees from other government departments of their jobs.
The breach of Human Rights involved is clearly understood in the courts (See Case above.
The extent of abuse is substantial: reputedly, HealthQuest stated that they perform approx 17,000 jobs per year, and that approx half of these are for circumstances where the employee is in a 'complex' situation with his/her employer.
Presuming that the employees were earning $30,000 to $40,000 per year, and HealthQuesting has been operating for many years, it appears that the taxpayer has been robbed of its trained employees to the extent of some millions of dollars each year.
It may be readily calculated that the cost to the employees has accumulated and compounded each year that they are deprived of their job and income. When TAFE trained me through 1988-89, I calculated that this cost the taxpayer in excess of one year's salary. Their investment in my training had increased by 1995. Overnight TAFE threw away approximately $50,000+ of taxpayers' investment in me - simply because I spoke out.
Attached are a number of what appear to be fraudulent certificates issued by HealthQuest medical practitioners.
It is common knowledge that medical practitioners are authorised to issue health certificates (birth, death, HIV positive, etc). Medical practitioners are not authorised to issue employment certificates because it is the decision of the employer whether to hire or fire. No employment certificate can be issued before the fact.
But in whistleblowing cases, some departments wish to cover-up serious maladministration, corruption, etc by discrediting and getting rid of the whistleblower (See AMA guidelines above, and extensive media coverage, books, web etc).
The employer who wishes to get rid of an employee must carry out dismissal/termination in accordance with legislation. That requires that the employer must find the employee lacking in his/her discharge of duties as set out in the Statement of Duties. Then, and only then, can the employer MAKE A DECISION to dismiss the employee, then carry out legitimate dismissal according to legislation.
This is difficult for the employer to do in whistleblowing cases because all that the employee has done to incur the hierarchy's displeasure is comply with his/her statement of duties of office - report serious wrong to the hierarchy.
In 'HealthQuesting' cases, when the employer did not have evidence on which to base legitimate termination of the whistleblower, the employer hired HealthQuest to deliver a service for them. The service they bought was a document that they could elect to use to dupe. The document has been used to dupe the uninformed reader [clerical/administration staff; whistleblower] into thinking a legitimate termination of employment has taken place; albeit without the employee's knowledge, input, or consent.
I have attached a few HealthQuest "Retirement Certificate(s)" and there are more in your files. The following is HealthQuest's document and analysis and reasons for each part which HealthQuest choose to write.
a) "RETIREMENT CERTIFICATE". This looks authoritative and dupes uninformed readers (such as clerical/administrative staff, whistleblower) into thinking that this is a genuine certificate for a genuine retirement. But:
b) "I hereby declare that on … date I carefully examined the abovenamed… [Commonly a whistleblower]".
c) "I find that he/she [more often "she"] is suffering from …[newly 'found' psychiatric tag]."
d) "I am of the opinion that he/she [more often "she"] is in consequence unable to discharge the duties of his/her office"
e) "I am further of the opinion that his/her [more usually "her"] disability will in all likelihood prove permanent."
MAP are not authorised to appeal any employment "Retirement Certificate(s) "