CB v Commission for Children and Young People

[2008] NSWADT 295

CITATION:	CB v Commission for Children and Young People [2008] NSWADT 295
DIVISION:	Community Services Division
PARTIES:	APPLICANT CB RESPONDENT Commission for Children and Young People
FILE NUMBER:	074029
HEARING DATES:	14 March 2008
SUBMISSIONS CLOSED:	14 March 2008
DATE OF DECISION:	31 October 2008
BEFORE:	Smyth M - Judicial Member
CATCHWORDS:	Declaration that applicant not a prohibited person
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Commission for Children and Young People Act 1998 Crimes Act 1900
CASES CITED:	RV v Commission for Children and Young People [2007] NSWADT 299 Commission for Children and Young People v V (2003) 56 NSWLR 476 Commission for Children & Young People v UR [2007] NSWSC 1099)
REPRESENTATION:	APPLICANT N Dawson, solicitor RESPONDENT G Mahony, barrister
ORDERS:	Application is dismissed.

(1A) This section applies only to the following:

(a) proceedings in the Community Services Division of the Tribunal,

(b) appeals to an Appeal Panel from a decision made by the Tribunal in the Community Services Division,

(b1) proceedings in relation to an external appeal made under section 67A of the Guardianship Act 1987 or section 21A of the Protected Estates Act 1983,

(b2) proceedings in relation to a reviewable decision made under the Guardianship Act 1987 or the Protected Estates Act 1983

(c) such other proceedings (or class or classes of proceedings) as may be prescribed by the regulations for the purposes of this section.

(1) A person must not, except with the consent of the Tribunal, publish or broadcast the name of any person:

(a) who appears as a witness before the Tribunal in any proceedings, or

(b) to whom any proceedings before the Tribunal relate, or

(c) who is mentioned or otherwise involved in any proceedings before the Tribunal,

whether before or after the proceedings are disposed of.

Maximum penalty: 10 penalty units or imprisonment for 12 months, or both.

(2) This section does not prohibit the publication or broadcasting of an official report of the proceedings that includes the name of any person the publication or broadcasting of which would otherwise be prohibited by this section.

(3) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.”

1 The Applicant applies for a declaration under s 33I of the Commission for Children and Young People Act 1998 (the Commission Act).

2 Section 126(1) of the Administrative Decisions Tribunal Act 1997 (theTribunal Act) makes it an offence to publish or broadcast the name of any person to whom any proceedings before the Community Services Division of the Tribunal relate. Section 126(2) contains an exception in relation to the publication of an official report of the proceedings. However, in these reasons, because of the sensitivity of this matter, I have decided not to publish any details that may identify the Applicant or anyone else referred to in the proceedings other than the expert witness. The Applicant is referred to in these reasons by the pseudonym CB.

3 The Applicant works full time as a registered nurse. He is a prohibited person as he was convicted of inciting a person above the age of 16 to an act of indecency. The Respondent opposed his application.

Relevant statutory provisions

4 Part 7 of the Commission Act sets out the provisions relating to child related employment. Section 33(1) of the Commission Act states that the term child related employment:

(a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment:…

5 Various kinds of employment are then set out including at (vi) “employment in wards of public or private hospitals in which children are patients”.

6 The question of whether the Applicant’s current work constitutes child related employment as defined in section 33(1) was not raised by either party at the hearing. The Applicant’s employment is in a hospital for adults and usually does not involve direct contact with children. For example, a risk management plan prepared by his employer dated 17 April 2006 stated that that Acting Director of Nursing had advised it was highly unlikely and rare that a child would be admitted to the neuroscience ward he then worked in. [Exhibit R2 attachment 9]. If a young people aged 16 or 17 years are admitted the Applicant is moved to another area of the hospital without young people as patients.

7 If the Applicant is granted the declaration he seeks he would be able to work in any child related employment.

8 Section 33J(1) of the Commission Act provides that the Tribunal is not to make an order on a review application unless satisfied that the person the subject of the application does not pose a risk to the safety of children. Section 33J(2) requires the Tribunal to presume that the Applicant poses a risk to the safety of children, unless he or she proves the contrary. The Applicant carries the onus, on the Briginshaw standard, to rebut that presumption.

9 The factors that the Tribunal must take into account in deciding whether or not to make an order are set out in section 33J(3) as follows.

(a) the seriousness of the offences with respect to which the person is a prohibited person,

(b) the period of time since those offences were committed,

(c) the age of the person at the time those offences were committed,

(d) the age of each victim of the offences at the time they were committed,

(e) the difference in age between the prohibited person and each such victim,

(f) whether the person knew, or could reasonably have known, that the victim was a child,

(g) the prohibited person’s present age,

(h) the seriousness of the prohibited person’s total criminal record,

(i) such other matters as the Commission or tribunal considers relevant.

10 The paramount consideration is the safety and welfare of children and, in particular, protecting them from child abuse. [Section 32].

11 The test set out in section 33J(1) of the Commission Act is similar, but not identical, to the corresponding test in the now repealed Child Protection (Prohibited Employment) Act 1998.

12 In RV v Commission for Children and Young People [2007] NSWADT 299 this Tribunal, differently constituted, considered the application of legal principles developed regarding section 9(4) of that 1998 Act to applications made under section 33. The Tribunal referred to the consideration of the meaning of risk used in that section in the cases of Commission for Children and Young People v V (2003) 56 NSWLR 476 and Commission for Children & Young People v UR [2007] NSWSC 1099).

13 In RV v Commission for Children and Young People the Tribunal said that great care had to be taken in applying principles that had been developed in relation to different, although similar, legislation. That Tribunal concluded that previous authorities that had considered section 9(4) of the now repealed Act provide useful assistance to interpreting corresponding provisions in the Commission Act. I agree with that approach.

14 In RV v Commission for Children and Young People the Tribunal referred to Young CJ (in Equity) in Commission for Children and Young People v V. In that case Young CJ agreed with Haylen J’s analysis in R v Commission for Children and Young People [2002] NSWIR Comm 101.

15 Haylen J said that section 9(4) was focused on:

‘[N]ot a mere theoretical or possible risk arising from the fact of a previous conviction, but it is a reference to an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.’ ( Commission for Children and Young People v V [at 22]; R v Commission for Children and Young People [at 104].)

16 Young CJ held [at 27] that ‘risk’ in the context of section 9(4) meant ‘a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child’.

17 The previous Act included the power to make conditions [section 9(9)]. Young CJ made it clear that the power to impose conditions was relevant to the question of risk. The imposition of relevant conditions could mean that an Applicant may not pose a real unacceptable risk to children.

18 I now turn to the factors set out in section 33J(3) of the Act that the Tribunal is required to take into account.

Seriousness of offence with respect to which the Applicant is a prohibited person and the period of time since that offence was committed. [Section 33J(3)(a) and (b)]

19 On 9 June 1997, over a decade ago, the Applicant approached an unknown male in a cubicle of a public toilet. The Applicant knocked on the cubicle door. The male opened the door and saw the Applicant in the doorway. The Applicant offered to perform a sexual act for money and the male refused. The Applicant made the offer several more times and was again refused. The Applicant stepped aside, the male left and then reported the matter to police. The Applicant was charged with inciting a person above the age of 16 to an act of indecency under section 61N(2) of the Crimes Act 1900. The matter went to the Local Court on 23 June 1997 and the Applicant was fined $750.

Age of the person at the time that offence was committed and present age. [Section 33J(3)(c) and (g)]

20 The Applicant was 36 years old at the time of the offence and 47 years old at the time of the hearing.

Age of each victim of the offences. [Section 33J(3)(d)]

21 The age of the victim was not recorded in the police statement of facts in evidence before the Tribunal. There is no dispute that the index offence was one of inciting a person over 16 to an act of indecency or that the victim drove himself to the public toilet where the offence occurred. On the basis that the offence related to a person over 16 and that the victim was driving it can be inferred that the victim was over the age of 16 years. On the evidence before the Tribunal it is not possible to make any finding regarding the victim’s actual age other than that he was over 16 years.

Difference in age between the prohibited person and each such victim; Whether the person knew, or could reasonably have known, that the victim was a child, [Section 33J(3)(e) and (f)]

22 Children are defined in the Commission Act as persons under the age of 18 years [section 3(1)]. The victim was over 16 years. While it is possible that the victim could have been under 18 years it is also possible that the victim was older. There is insufficient evidence to make a finding that the victim was a child and consequently there is not sufficient evidence to make a finding that the Applicant knew or could have reasonably known that the victim was a child.

Seriousness of the prohibited person’s total criminal record. [Section 33J(3)(h)]

23 No other offences appear on the Applicant’s criminal record.

Other relevant matters. [Section 33J(3)(i)]

Complaints made about the Applicant’s conduct at work.

24 There have been several complaints about the Applicant’s conduct at work.

25 When an enrolled nurse in 1983 he was disciplined for reading patient’s notes relating to a medical officer. That incident was approximately 25 years ago and there is no suggestion that such conduct has been repeated.

26 On 12 September 2000 he was alleged to have used offensive and inappropriate language to another staff member at work when he disagreed with her request to undertake a task. He was given a formal verbal warning.

27 A patient alleged that on 5 November 2006 she overheard a nurse calling her a “stupid bitch”. The incident was alleged to have taken place at the staff station. The Applicant’s version of events recorded in a record of a meeting held on 17 November 2006 with hospital staff, in evidence before the Tribunal, was that the patient had made a derogatory comment regarding his size and called him “fatso”. He had murmured the comment, had not directed it to the person and thought she had left the area. When he realised she had overheard he went and apologised to her. He regretted his behaviour and offered an apology. He was informed that further inappropriate behaviour in the workplace would result in disciplinary intervention.

28 In addition the Applicant is alleged to have engaged in the following sexual and inappropriate conduct. The Respondent submitted that the Applicant was opportunistic in his employment and supported that submission by reference to these complaints.

Allegations August 2005.

29 The Applicant was alleged to have engaged in improper conduct towards a female patient in her late forties in the early hours of the morning on 2 August 2005 when he was working as a nurse on night duty. The patient was in a high dependency unit due to her physical condition. The patient alleged that the Applicant had touched her upper leg, placed his hand over her genitals and had said the word “fuck’ three times. She said that she had not called the Applicant over and that he had not been undertaking any treatment of her at the time of the incident.

30 The police were notified however they did not pursue the matter as the patient and her husband did not wish to take the complaint any further and refused to make any formal statement.

31 The employer arranged an independent investigation of the allegations and the Applicant was stood down pending the outcome of that investigation. A copy of that investigator’s report was in evidence before the Tribunal. The woman, her husband and the Applicant were interviewed. A transcript of the Applicant’s interview with the investigator was included as an attachment to the investigator’s report in addition to other documents before the Tribunal. The Applicant denied the allegations. He acknowledged that he was on duty that night and said that he had cause to re-position the patient and check her suprapubic catheter.

32 The investigator did not make any finding that the allegations were substantiated and found that:

the patient and her husband did not wish to take the complaint further or make formal statements;

the Applicant denied the allegations;

there was no corroborative evidence for either parties version of events and

that the Police were not pursuing the matter other than registering an event.

33 The Applicant was returned to work in the same area.

34 In oral evidence before the Tribunal the Applicant denied the allegations against him.

35 The Applicant had disclosed the index offence prior to starting work with his employer. Following the August 2005 allegations the employer conducted further screening of the Applicant. It was determined that the Applicant should not have any contact with children and adolescents under the age of 18 years and an instruction was made that if a child was admitted to the area the Applicant was working in he should be moved to another area.

Allegations August and September 2007

36 In August 2007 the Applicant and another registered nurse were both attending to an adult male patient in an acute stroke unit. The nurse alleged that she had seen the Applicant tapping that patient’s penis and laughing. It was also alleged that during the same shift while the Applicant and the nurse were in the corridor the Applicant produced an enema and while holding the nozzle upright had stated that he was “going out that night”. The Applicant’s representative put this allegation to the Applicant at the hearing and placed it as occurring on 1 August 2007. Documents tendered by the respondent [Exhibit R2 attachment 15] placed the incident as occurring on 25 August 2007.

37 In addition the same nurse alleged that during the night shift starting on 22 September 2007 the Applicant was seen going frequently to a patient’s bedside and pulling the curtains around. The nurse considered that the patient did not require frequent attention as he had a uridome in place. When the nurse questioned the Applicant he was alleged to have responded by stating “Why are you asking me, did you not hear the handover?” The Applicant agreed that he had attended to the patient behind the curtain 3 or 4 times but denied giving the patient unrequired attention. He said that the patient’s uridome, a device place over a person’s penis to collect urine, was falling off, the bed was wet and there was a need for it to be reapplied. There were seven patients in an open room, it was a mixed ward and the curtains were there for privacy.

38 The Applicant said that he was not made aware of the August 2007 allegations until September 2007 when both sets of allegations were put to him. He was aware that the August 2007 allegation referred to a patient in his 70’s or 80’s. He said he had no recollection of the incident and said it was not something that he would do.

39 The allegations were investigated by the Applicant’s employer. The Applicant was advised by letter, in evidence before the Tribunal, that the allegations were unable to be substantiated. There were no witnesses and no direct evidence to support the allegations. The Applicant was advised that the grievance was now closed.

Expert Evidence

40 Dr Allnutt, a forensic psychiatrist, assessed the Applicant at the request of the Respondent and provided a written report dated 2 February 2008 and a supplementary report dated 8 February 2008. Both reports were in evidence before the Tribunal. Dr Allnutt also gave oral evidence.

41 Dr Allnutt conducted a clinical assessment of the Applicant and explained that the Static 99, an actuarial tool used to assess the risk of re-offending, was not appropriate, as there had not been any “hands on” offence.

42 In the context of previous complaints about the Applicant, Dr Allnutt noted that the Applicant’s position brought him into intimate contact with patients and that gave him the opportunity to be frotteuristic but also increased the risk of misinterpretation by the patient and others. In his supplementary report he stated that when he referred to frotteuristic behaviour he was “referring to touching a person non-consensually while harbouring sexual intent.” In regard to the 2005 complaint regarding a female patient Dr Allnut stated that “I am less concerned about the 2005 compliant (sic) as the victim was female and in my view unlikely to have been of sexual interest to him given his sexual orientation”.

43 Dr Allnutt noted that the complaints regarding sexual behaviours that could have resulted in charges against the Applicant were investigated and “found to be unfounded”. He said that:

“As a consequence of the professional complaints, there is some suggestion of some general self regulation problems although these are relatively minor.”

44 He noted that the Applicant had no history of past violent offences or other offences and that he presented as someone capable of maintaining supervision orders.

45 In oral evidence Dr Allnutt said that in regard to the Applicant’s index offence it was difficult because in a sense the Applicant was pursuing consensual sexual activity, asking for sex rather than imposing it. Dr Allnutt noted that the index offence fell on the spectrum of what happens in a bar where people proposition each other but said that the context was entirely inappropriate.

46 After considering the nature of the complaints that had been made against the Applicant, Dr Allnutt’s view was that any risk would be predominantly to males with secondary sexual characteristics including males aged 16 to 18 years. Dr Allnutt pointed to the absence of a history of non-consensual sexual offending and stated that the Applicant would fall into a low risk group of sex offenders engaging in non-consensual activity in the workplace or external to it. He also pointed to the absence of a history of offences involving children or evidence for sexual interest in children under 16. He stated that the Applicant would fall into a low risk group for sexual offending against male or female children in that age group. When he said that the Applicant posed a low risk he said that was compared to other people with a history of sexual offending. He regarded him as a low risk of sexual solicitation in the workplace.

47 Dr Allnutt made it clear that he would never use the category “no risk”. From his evidence it was clear that he categorised people into low, medium or high risk categories. Dr Allnutt considered the length of time the Applicant had without another offence kept him in a low risk category.

Evidence regarding “beats”

48 The Applicant acknowledged that he still attended beats.

49 The Respondent provided the Tribunal with some academic articles regarding “beats”. These articles supported the Respondent’s submission that beats were located in public places and that there was nothing in that material that suggested that those who use beats target people below the age of consent (16 years) or pursue non-consensual activities. The material also indicated that beats are not just used by homosexual men.

Discussion and Conclusion

50 There is a rebuttable presumption that the Applicant poses a risk to the safety of children [section 33J(2) of the Commission Act]. The Applicant carries the onus to prove that he does not pose such a risk. In determining the application I must have regard to the factors listed in section 33J(3).

51 The Applicant did not provide any statements or other evidence other than his denials of some allegations regarding misconduct at work. He relied on the evidence of Dr Allnutt to support his application.

52 Dr Allnutt, an experienced psychiatrist with extensive expertise in the field of assessing risk among sexual offenders, was of the opinion that the Applicant posed a low risk of offending against children, including males with secondary sexual characteristics, in the course of his work.

53 The Applicant has one conviction for an offence that involved a sexual proposition over a decade ago (the index offence) and has never been charged with or convicted of another offence. The offence did not involve any threat or any physical or sexual contact. His criminal record cannot be described as serious. The victim was over 16 years and while it is possible the victim could have been under 18 it is equally possible that the victim was over 18 years. Consequently I am not able to make a finding that the victim was a child. There is no other evidence of him ever having harmed a child.

54 The Respondent acknowledged that there is nothing before the Tribunal that suggested that the Applicant has ever targeted males below the age of consent (16 years) or pursued non-consensual sex.

55 The Applicant acknowledged that he continued to use “beats”. The Respondent submitted that the Applicant’s acknowledgement of ongoing use of beats was relevant as it placed the Applicant at risk of being arrested and charged again under section 61N of the Crimes Act 1900 (NSW) [Crimes Act]. They further submitted that he had committed a serious sexual offence and continued to participate in those activities. The Respondent submitted that if the Applicant was found guilty of an offence against section 61N any order made by this Tribunal would be overridden by the legislation and he would again become a prohibited person. The Respondent submitted that raised a question about the utility of the Tribunal making the order sought by the Applicant.

56 Other than the index offence there is no evidence before the Tribunal that the Applicant has ever been charged with or convicted of any offences relating to attendance at beats. On the evidence before the Tribunal I am not able to determine whether in the future the Applicant may be convicted of the same offence again. That would be a matter for a criminal court to determine should the Applicant be charged with any offence arising out of his attendance at beats.

57 There is evidence before the Tribunal that the Applicant has had a number of allegations made against him that involve some sort of inappropriate conduct with patients including some conduct that was sexual in nature. The allegations of 1983, 2000 and 2006 are relatively minor and I have placed no weight on them.

58 In regard to the allegation that the Applicant went to a patient’s bedside frequently and pulled the curtains around during a night shift starting on 22 September 2007 the allegation was that the patient did not require such frequent attention. The Applicant said that he was there to attend to the patient’s uridome and wet bed and denied any improper conduct. There is no evidence that the person making the complaint saw the Applicant do anything other than draw the curtains and go in to the patient when the complainant considered it unwarranted.

59 In the absence of any further evidence I am not able to make any finding that the Applicant engaged in any kind of inappropriate conduct with the patient behind the closed curtains or gave the patient unwarranted attention.

60 In regard to the complaint by a female patient in August 2005 the Applicant denied the allegations. An independent fact finding investigation did not make a finding that the complaint was substantiated. The investigation found that neither the complainant’s nor the Applicant’s version of events was corroborated, and that the complainant did not want to proceed with the complaint. Dr Allnutt was of the opinion that the female patient was unlikely to have been of sexual interest to the Applicant given his sexual orientation. The evidence is inconclusive as to whether the event occurred as alleged by the woman involved and I am not able to make a finding one way or the other as to whether it occurred as alleged.

61 The Applicant says he has no recollection of the allegation that he tapped a patient’s penis and laughed in August 2007. There is very limited evidence and on the evidence before me it is also not possible to make a finding one way or the other as to whether this incident occurred.

62 Nevertheless the allegations of August 2005 and August 2007 are troubling. While Dr Allnutt referred to the possibility of misinterpretation by patients and was less concerned about the female patient’s 2005 complaint, the fact remains that there have been two complaints about inappropriate sexual touching of patients made against Applicant by different people. While no positive finding can be made that the conduct occurred, the investigations into these allegations were inconclusive and there was no corroboration for either version of events. There may be an innocent plausible explanation for why such allegations were made. However the Applicant provided no evidence as to why a patient and a colleague would make up such allegations against him.

63 The Applicant has access to vulnerable people in the course of his work as a nurse and I agree with the Respondent’s submission that he is in a position of trust. The Applicant has provided no evidence regarding his professional standing, for example, references from those who have worked with him or supervised his work. Although there is no evidence that the Applicant has behaved inappropriately with children the Applicant led no evidence at all regarding his conduct with children while an adult.

64 There is insufficient evidence before me to satisfy me that he has rebutted the presumption that he poses a risk to children.

65 Having come to that conclusion it is necessary to consider whether conditions could be imposed that would reduce the Applicant’s risk to one below a real and appreciable risk [section 33I(6)].

66 The Respondent submitted that if the Tribunal was minded to make an order with conditions that a condition be imposed that the Applicant not work with male children over the age of 13 years.

67 The Applicant opposed a condition that prevented him working with children over the age of 13 years. He submitted that such a condition would be restrictive and would bar him from working in a children’s hospital. He also pointed out that although he works in an adult hospital, young people 16 and over are treated at that hospital, and that he had applied to this Tribunal for a declaration because he needed one. The imposition of such a condition would restrict him to work in the aged care sector.

68 Given the Applicant’s opposition to a condition that prevents him from working with young people over 13 years I do not consider it feasible to make such a condition. On the evidence before me I am not satisfied that alternate conditions could be imposed that would reduce his risk to that below ‛real and appreciable’.

69 The application is dismissed.