KCM v Director-General, Department of Justice and Attorney-General - [2023] QCAT 235

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

KCM v Director-General, Department of Justice and Attorney-General [2023] QCAT 235

PARTIES:

KCM

(applicant)

v

DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(respondent)

APPLICATION NO/S:

CML062-21

MATTER TYPE:

Childrens matters

DELIVERED ON:

27 June 2023

HEARING DATE:

11 November 2022
28 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Goodman

ORDERS:

The decision of the Director-General, Department of Justice and Attorney-General that the applicant’s case is “exceptional” within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000(Qld) is confirmed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE LAW- CHILD WELFARE UNDER STATE AND TERRITORY LEGISLATION – Blue Card – where applicant was issued with a negative notice – whether exceptional case in which it would not be in the best interests of children for the chief executive to issue a positive notice – where applicant has a criminal history in relation to drug offences – where applicant prescribed medicinal marijuana – where evidence presented by applicant is inconsistent and unreliable

Human Rights Act 2019 (Qld)

Working with Children (Risk Management and Screening) Act 2000 (Qld)

APPEARANCES & REPRESENTATION:

Applicant:

Self represented

Respondent:

Ms Davis

REASONS FOR DECISION

KCM is a teacher. She previously held a blue card. On her most recent application for a positive notice (and so a blue card), the respondent issued a negative notice on 15 January 2021. It seems that there was some confusion in the application process. KCM was not compelled to apply for a blue card to work as a teacher. However, now that a negative notice has been issued, it has prevented her employment as a teacher in Queensland. It also prevents her working as a tutor.
KCM is currently living in the Northern Territory, where she has been issued with the appropriate authorisation to work. She is employed in a high school as an internal reliever, substituting for whoever is not at work. She advised the Tribunal that she finds herself called upon to work every day, and spends her leisure time co-authoring a book which sets out a developmental program for neurodiverse children. She wishes to return to work in Queensland. If she is unable to obtain a blue card, she will remain in her current situation.
KCM is now 59 years of age, and has a criminal history as follows:
(a)12 April 2018 - possessing dangerous drugs, and possessing property suspected of having been used in connection with the commission of a drug offence (on 11 March 2018).
Although the Court did not record a conviction, the offence is regarded as a “conviction” for the purposes of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC).
In considering this application, the Tribunal’s paramount consideration is the welfare and best interests of children, as every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.
The offences are not defined as a “serious offence” under the legislation. Accordingly, a positive notice must be issued unless the Tribunal is satisfied that this is an exceptional case in which it would harm the best interests of children for KCM to be issued with a positive notice. The Tribunal understands that, if the Tribunal were to find that this is not an exceptional case, and all other factors remain the same, the respondent would issue an exemption notice which would not be an impediment to KCM returning to teaching as the current negative notice is.
The Act sets out matters which the Tribunal must take into account in making that determination, but this is not an exhaustive list.
This is a fresh hearing on the merits, not an appeal, and the Tribunal must determine the correct and preferable decision. Neither party bears an onus of proof. The Tribunal must determine, on the balance of probabilities, whether this is an exceptional case in which it would harm the best interests of children for KCM to be issued with a positive notice.
In conducting the review, the Tribunal is acting as a public entity, as that term is described in the Human Rights Act 2019 (HRA). Accordingly, it is unlawful for the Tribunal to act or make a decision in a way that is not compatible with human rights, or in making the decision, to fail to give proper consideration to a relevant human right. A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA.
An oral hearing was conducted, and KCM attended and provided evidence in support of her application. I also have the benefit of the written material filed by the parties, and the evidence presented by KCM’s support network. Both parties filed written submissions.
The respondent submits that this is an exceptional case in which it would not be in the best interests of children for KCM to be issued with a positive notice because of concerns about:
(a)Illicit drug use;
(b)Misuse of prescribed medication; and
(c)Whether KCM’s mental health is well managed so as not to present a risk to children.
KCM’s conviction is “relevant information” as that term is defined in s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (“WWC”).
The respondent submits that the factors contained in s 226 (2) of the WWC must be considered (as the applicant has a conviction for the charge discussed above). That submission is accepted. The respondent submits further that the Tribunal must have regard to the factors contained in s 228 of the WWC, as other “relevant information” exists – that is, information about the applicant that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person. The respondent refers to material produced by the Queensland College of Teachers, and medical evidence. The contents of the documents are discussed below. The Tribunal is satisfied that the information is relevant as that term is used in the legislation, and will be considered as part of this decision.
KCM says that she does not use drugs except as prescribed, sees a GP every fortnight and has been reducing her anxiety medication. She states that she can’t remember when she last smoked a joint, but certainly not since she moved to Darwin in March 2022. She states that she manages her mental health by seeking professional assistance when things are not going well.
It is not in dispute that KCM has been diagnosed with a number of serious, painful and debilitating medical conditions. These include chronic pain syndrome, trigeminal neuralgia, fibromyalgia, scoliosis, sever migraines and migrating sensor neuropathy. She has undergone a range of medical treatments to assist her in managing her conditions. KCM states that she has been attempting to find a way to manage the pain associated with her medical conditions for many years. She says that the criminal conviction arose after she used marijuana for a short period of time for pain relief.

MEDICINAL MARIJUANA

I accept that KCM has been prescribed medicinal marijuana for pain relief. I am not satisfied that the use of medicinal marijuana of itself creates an exceptional circumstance. I accept the evidence from her prescribing doctor that “impairment duration of cannabis medications apply to THC containing medications only: 6 – 8 hours for oral or capsulated medications and 2 – 4 hours for inhaled medications. While traces of medical cannabis may be detected in the patient for up to 2 – 4 weeks post consumption, the impairment is only within the above timeframes.”
I note that the doctor records that KCM has been “adherent to prescribing guidelines”, and states “If taken as prescribed …with the above impairment guides, there should be no risk to children. The risks posed are no different to other medication impairments which may result to any teacher being prescribed medications for their health issues, if taken as advised by their doctors”.
I am not satisfied that the use of medicinal marijuana taken as prescribed, and safely and appropriately used and stored, raises any concerns in relation to the issue of a blue card in this case.
In her Statement of 13 October 2022, KCM states:
(a)While prescribed cannabis on a PRN basis, she typically takes it very consistently (CBD oil every morning and CBD Oil and THC via vaporisation every evening) as prescribed.
(b)The CBD oil extends the pain relief benefits of THC.
(c)After taking the THC at home in the evening, she does not drive or care for children but immediately retires to bed, and the effects have worn off by the morning;
(d)She carefully stores the medication and only takes it at home.
In her application to the Tribunal dated 11 February 2021, KCM stated that she had not filled a prescription for THC since 17 December 2020 and had since “pursued other treatment options” to treat her chronic pain, and was motivated and committed to seeking alternative treatments. At the hearing, KCM confirmed that she continues to use the medicinal marijuana.
KCM provided evidence that she only takes the medication at home, and shortly before she goes to bed at night. That was contradicted by her friend who says that she has seen KCM, on a number of occasions, take the medication at social events. I will return to this issue later in my reasons.
ILLICIT DRUG USE

The Department has raised concerns regarding illicit drug use by KCM. KCM stated in her submissions to the Department and evidence to this Tribunal that:
(a)at the time of the charges, she was smoking marijuana 2-3 times a week in the evening for pain relief. It was “bush weed”, not hybrid;
(b)she can’t remember when she last smoked a joint, but certainly not since she moved to Darwin in March 2022 (oral evidence at the hearing);
(c)she had not taken cannabis unlawfully since the criminal charge on 11 March 2018 (Application to the Tribunal 11 February 2021);
(d)the use of marijuana was a “one-off occurrence”, where a friend had suggested she use cannabis for her physical well-being. She is no longer associated with this person and has realised that her actions of possessing dangerous drugs and property suspected of having been used in connection with the commission of a drug offence were inappropriate and unreasonable”. It was an error of judgement (Life Story 25 May 2021);
(e)She sees her GP regularly and has many preventative strategies in place to manage her physical and mental pain instead of resorting to illicit behaviour. Reoffending is “highly unlikely”, and she does not see herself ever reoffending. She has not committed any offences prior to or since the 2018 offence. She has “changed significantly” since the offence was committed a long time ago and is not involved in illegal drug use. She feels remorse and regret, and has learned her lesson. She understands the negative effects associated with using cannabis around children. She has replaced her cannabis use with relaxation methods, meditating and mindfulness (Statement of Evidence 18 December 2021);
(f)When the police arrived at her house in 2018, she immediately declared that she used the marijuana for chronic pain, and immediately showed the police where the “bush weed” was kept. She was using an electronic scale to weigh the marijuana as she was using it “prescriptively”, not for recreational purposes. The use of the marijuana reduced her reliance on other prescribed (and addictive) medication such as opioids, morphine and codeine. She was exposed to the effects of alcohol abuse in her home growing up and is well aware of the dangers of exposing children to drug and alcohol use and abuse (Submission 4 November 2020)
MANAGEMENT OF KCM’S MENTAL HEALTH

KCM advised the Tribunal that she had been hospitalised for the treatment of her mental health in 2011, 2018, and in October and November of 2021. She says that while there is a reference in the hospital records to some cluster B traits, she has not been diagnosed with a personality disorder.
The Tribunal was referred to a number of hospital records:
(a)KCM denied a history of complex trauma, as noted in a hospital record dated 21 October 2021;
(b)Records dated 19 October 2021 indicate that KCM had reported experiencing recent trouble with short term memory loss and orientation, for example driving and forgetting where she was going to, and word finding difficulties, including forgetting the name of her cat. KCM stated that she had been assessed by a geriatrician who ruled out early dementia. She considers that the conditions were due to stress which had consumed her. I note that, on 23 October 2021, hospital notes indicate that KCM reported improving confusion and memory since being admitted;
(c)KCM acknowledges a diagnosis of depression from the age of 15;
(d)Records dated 8 January 2021 refer to KCM’s concerns around low mood, anxiety and smoking “1 – 10 joints”, and goals of being bright and cheery, calm and free of THC. Interventions were listed as a reduction / change in medication, participation in groups, walking, self calming, “dep groups” and mindfulness. KCM advised the Tribunal that she continues to implement these strategies and is now much more in tune with mindfulness and mediation and better able to use those strategies successfully;
(e)January 2018 records indicate that KCM advised staff that she had thought about driving a car into a tree. On 20 January, she was assessed as being a low risk of suicide (the lowest rating available) and KCM advised the Tribunal that, while she was unwell when admitted, she had never had a plan to suicide;
(f)3 November 2021 notes record that KCM reported “suicide ideation but denies plan or intent”. KCM advised the Tribunal that she had been very frustrated by the process of seeking the return of her Blue Card.
The respondent referred the Tribunal to a number of references in the hospital material to KCM’s insight and judgement. It is difficult to draw any great assistance from those references in the context of this application. It seems likely (although it is not clear) that the references are to KCM’s insight and judgement around her mental health condition and the need for treatment. I do not place any particular reliance on those references. I do note that KCM has demonstrated a proactive approach to the treatment of her mental health, and there is no evidence that she has ever been subject to involuntary treatment.
A hospital note from 19 January 2018 records that KCM was “in hysterics and sobbing” after being denied a request to leave the ward for a cigarette. KCM denied that she was “in hysterics” but indicated that she had expected to be allowed to go outside for a cigarette as she had been allowed the day before.
A hospital note dated 19 October 2021 indicates that KCM presented as chaotic and disorganised with underlying disorientation, and had lost her room a couple of times on that shift. She accused nursing staff of taking a bag which contained her toiletries before telephoning her flatmate who advised that it was still at home. KCM advised the Tribunal that this was the day after her admission and she went to the wrong nursing station looking for her room.
EVIDENCE OF KCM

In her Life Story dated 25 May 2021, KCM states that she:
(a)has studied journalism, teaching and counselling;
(b)is very passionate about her work as a teacher and has specialised in early intervention, working with vulnerable students who have special needs or who have disengaged;
(c)has been a registered teacher since 1988, and no concerns have ever been raised about her conduct or behaviour, personally or professionally. She has enjoyed a successful career working for respected education departments, private industry and for herself; and
(d)was, in 2012, declared totally and permanently disabled due to a number of serious medical conditions which have produced chronic pain.
In her submission dated 4 November 2020, KCM states that since 1988 she has worked with hundreds, if not thousands, of children, specialising in early intervention and children experiencing difficulty, particularly those on the autistic spectrum.
In her oral evidence before the Tribunal, KCM stated that:
(a)She has a strong and supportive network of family (her mother and adult children) and friends;
(b)Since November 2019, she has been prescribed medicinal cannabis;
(c)She is not aware of any negative impacts from the medicinal marijuana – it does not make her sleepy or impact on her thinking. To be on the safe side, she does not drive after she vapes at night;
(d)She understands that marijuana is a dangerous drug and should only be taken as prescribed:
(i)      she does not currently smoke joints, and has not done so since 2018 when she smoked marijuana joints for about 6 months, mostly at night. She smoked most nights but never more than one joint a night;
(ii)      Her pain relief is improved by using CBD in combination with THC; and
(iii)     While she had previously indicated to the respondent that she was no longer using medicinal marijuana, she started back on the prescription around late March / early April 2021 after she found the other pain relief she was using was not effective. She had stopped taking it to please the respondent after gathering that was what they wanted after speaking to them on the phone.
TRANSCRIPT OF MAGISTRATE COURT PROCEEDINGS 12 APRIL 2018

I have been provided with a transcript of the Magistrate Court proceedings relating to the drug charges. They reveal that the Magistrate recorded that:
(a)KCM entered an early plea, which resulted in a reduced penalty;
(b)KCM was regarded as person of otherwise good character and a useful and integral member of the community;
(c)The marijuana charges arose from KCM seeking to manage her chronic pain, anxiety, and insomnia;
(d)KCM produced a number of glowing references in support;
(e)Regardless of whether a conviction was recorded, the criminal charges would need to be disclosed to employers in KCM’s profession; and
(f)No conviction was ultimately recorded.
EVIDENCE OF DOCTOR K, KCM’S GP

Doctor K has treated KCM regularly since 2018. The doctor provided a letter dated 28 November 2021 stating:
(a)KCM was very remorseful for her offending behaviour and is demonstrating positive behaviour towards maintain sound physical and mental health;
(b)KCM was working with a neurologist, psychologist and psychiatrist regularly to reduce the future risk or trigger to commit similar behaviour;
(c)Her prescription for medicinal cannabis significantly reduced the risk of any substance abuse; and
(d)Her health conditions are being well managed by current treatment strategies.

EVIDENCE OF MS C, FRIEND

Ms C is a speech pathologist who treated KCM’s own children from 2001, and who has become a friend. Ms C states in her 8 December 2021 reference and in her oral evidence:
(a)KCM is an empathetic, committed and supportive parent and a special educator of the highest standing;
(b)KCM has been employed as a senior learning consultant in Ms C’s business under the direct supervision of Ms C who found her to place the welfare of children, family, and educative environments as highest priority;
(c)Despite KCM’s significant chronic pain challenges she never lost sight of the goal that the welfare of the child is to be protected at all times nor did she ever miss a day of work;
(d)KCM is the classic example of the children coming first; and
(e)She lives near KCM in the Northern Territory, and they are writing a book together. She knows that KCM uses medicinal marijuana, and has been at social events with KCM when she has seen KCM in pain, and the pain reduced significantly after KCM uses the prescribed medication. The social events are family friendly, and include children.

EVIDENCE OF MS H, TEACHER AND FRIEND

Ms H provided an undated written statement advising:
(a)She lived with KCM and her three children in 2008 – 2009, and taught at the same school for two years;
(b)KCM’s children required intense therapy, and she ensured that they were provided with every opportunity to succeed, and created a warm, inviting, encouraging and safe home for them;
(c)KCM maintains a wonderful relationship with her now adult children;
(d)As a teacher, KCM worked across the school doing early intervention and learning support, working with the most difficult and challenging students. Her ability to form meaningful relationships with these students was instrumental to their progress and success;
(e)KCM has positively assisted innumerable children, both face-to-face and in training other staff members; and
(f)Ms H is aware of the regret and remorse KCM feels for committing the offence and its implication and consequences not just for her, but also for the children she’s been unable to work with because of her actions.

EVIDENCE OF MS D, FORMER CLIENT

Ms D signed a reference on 5 November 2020 and provided oral evidence to the Tribunal. She states that:
(a)She is the primary carer of a child who worked with KCM in 2017;
(b)KCM had been instrumental in identifying the child’s needs and teaching her to read and write, and providing art therapy;
(c)KCM amazes Ms D with her thorough planning and preparation, patience and communication. KCM is professional, organised and structured in her approach, and her workspace is well organised and well stocked with appropriate resources. KCM managed the child’s demanding behaviour well; and
(d)KCM’s drug related police matter has no impact on her view of KCM, and she never held any concerns that KCM was under the influence of marijuana. She has never witnessed KCM behaving erratically, be disorientated or forgetful, be aggressive or overreact. KCM was “magical” with the child and Ms D has the greatest confidence in her.

EVIDENCE OF MS A, FORMER CLIENT

Ms A provided a written reference dated 3 November 2020, stating:
(a)KCM helped her son as an educational consultant and demonstrated great aptitude and a very patient, caring approach;
(b)Her son bonded with KCM, which is unusual for him to do; and
(c)She is aware that KCM was found in possession of marijuana for medical purposes in 2018. This does not affect her support for KCM.

EVIDENCE OF MS Y, KCM’S MOTHER

Ms Y provided a letter dated 16 December 2021, stating:
(a)KCM’s history as a dedicated teacher should be taken into account, particularly as she has never received complaints from any parents or principals on her ability to interact and educate children;
(b)KCM has an affinity with children who have special needs and has tutored many children during the past few years with great results; and
(c)To deprive KCM of her means of support and her passion to help and educate children is discriminatory.

EVIDENCE OF DOCTOR G, KCM’S TREATING PSYCHIATRIST

The Tribunal was provided with a letter from Dr G dated 20 December 2021, and he provided oral evidence stating that:
(a)He is aware of the reasons the respondent has provided to justify the issue of the negative notice;
(b)He has known KCM in a professional capacity since April 2014;
(c)He has seen her regularly over the years, and more often in 2021(at KCM’s request) due to the stress of issue of the negative notice. He last saw her on 1 July 2022;
(d)KCM had been recently hospitalised “from the on-going stress, anxiety, and depression due to the protracted legal matters taking their toll”;
(e)Whilst an inpatient, she took full advantage of the group therapy and individual counselling sessions. She found it very helpful and was continuing to attend outpatient groups at the hospital. She was seeing a psychologist and was very reliable in taking her medication;
(f)Chronic pain is “nasty and demoralising”. Medicinal cannabis can be an effective remedy and it is not surprising that people would seek out illicit supplies prior to medicinal cannabis becoming available by prescription;
(g)As she is prescribed medicinal cannabis, she has no need whatsoever to source it anywhere else;
(h)He does not himself prescribe the medicinal cannabis to KCM as she has another doctor who does;
(i)KCM is not diagnosed with bipolar disorder and does not meet the criteria for a diagnosis of borderline personality disorder. Any reference to cluster B personality traits in the hospital material is too broad to be meaningful. She is diagnosed with ADHD and over the years has had problems with depression and anxiety;
(j)He doesn’t recall KCM breaching an agreement not to vape while in hospital, but such a breach would not concern him greatly;
(k)He is not concerned by a reference to marijuana “dependence” in the hospital material – the term could be used, for example, to indicate that KCM is dependent on marijuana to manage her pain. Similarly, references to KCM being disoriented, confused and forgetful while in hospital are not of themselves matters of concern. She was, after all, in hospital because she was not doing well at that point in time. He has never himself witness any of those issues. Similar considerations apply to the mention of suicide ideation in the hospital material;
(l)She does not have any addiction problems, and he had never seen her display any untoward behaviours or attitudes that would give him concern for her conduct around children;
(m)She has put a lot of work into her mental health and the chances of her having any ongoing issues with other drugs or alcohol is as close to zero as it is possible to get;
(n)Any acute effects of medicinal cannabis taken in the evening would be out of the system by the morning, although the length of the effects will vary from person to person; and
(o)The decision to rescind KCM’s blue card based on an historic drug charge is bureaucratic overreach and completely unjustified and he would support restoration of the blue card.
HOSPITAL RECORDS
The Tribunal has been provided with documents relating to KCM’s admissions to hospital. They reveal that:
(a)On 18 January 2018, KCM was recorded as stating that she was smoking 10 joints of THC daily;
(b)On the same date, records indicate “Abusing THC”, and “Handover from Dr … is that the prior GP has declined to continue to treat KCM, due to her doctor shopping & attempting to damage her GP’s reputation.” KCM did not agree with the term “abusing’, and denied that she had been doctor shopping. KCM states that she has a lot of diagnosed medical issues and it was difficult for her to find a GP;
(c)On the same date, it is noted that KCM “contacted intake on a prior recent occasion & handover from the clinician taking her call was that KCM was agitated, argumentative & terminated that call when not able to be admitted immediately”. KCM did not deny the description of “argumentative and aggressive”. She told the Tribunal that she had been trying to reduce the number of medications that her previous GP had prescribed, and problems with her phone had increased her frustration;
(d)A mental health clinical risk assessment conducted on 18 January 2018 notes (under the heading “History of drug/alcohol abuse) “THC” and “binge drinking”. Further, “Substance Abuse” is ticked. KCM states that she now very rarely drinks alcohol but the most likely explanation for the entries is that she was binge drinking in late 2017 / early 2018. KCM noted that she had been involved in a car accident the day before Christmas in 2017;
(e)On 22 January 2018, KCM was discharged from hospital. Her discharge summary notes a past medical history of “poly substance misuse”. KCM was unable to explain why that term was used to describe her;
(f)On 27 October 2021, KCM was discharged from hospital after smoking marijuana and having approximately 3 x joints and 4 x ½ joints of marijuana in her room, which she reported smoking “due to anxiety”. The hospital records indicate that there was a strong smell from her room, which prompted a room search. KCM advised that she had been offered the marijuana by a friend after she had become upset after a phone call with Blue Card Services, and had smoked some in the park across the road from the hospital;
(g)On 4 November 2021, KCM was admitted, and a nurse recorded that she had used THC on that day, and that she had some passive suicide ideation, although no plan or intent. Under the heading “impression”, the nurse records “chronic THC abuse”;
(h)On the same date, KCM was asked to complete an admission questionnaire and rated her “problem drinking or drug-taking" as a 4 (out of a possible scale 0 – 4). KCM advised the Tribunal that she was going through a difficult time and was smoking more than one vape a day. Although she had been prescribed up to three vapes per day, she considered that excessive, and reported it as a problem;
(i)On the same date, KCM “admitted to smoking a joint @ 0900 hrs this morning”. A “behavioural contract” was signed;
(j)KCM’s “admission reasons” on 4 November 2021 were recorded as “ADHD, Cluster ‘B’ traits, cannabis use”.
(k)On 7 November 2021, KCM returned from leave and 4 x diazepam tablets were discovered in her bag. KCM advised that the medication had been caught up in her underwear when packing and she handed them in when asked;
(l)She was ultimately discharged on 26 November 2021 and was to attend programs “Living Well”, “Moving Towards Wellness”, and a Diversional Therapy Day Program on 29 November, 2 December, 3 December, 6 December, and 9 December 2021.
(m)On 2 February 2022, KCM attended a day program and recorded that, over the previous week, she had almost always felt that she found it difficult to find the initiative to do things, tended to over-react, felt she had nothing to look forward to, found herself getting agitated, felt downhearted and blue, felt she wasn’t worth much as a person, felt scared, and felt life was meaningless. In response, KCM states that she attended the day program because she was depressed and stressed – that she has taken positive steps to deal with these issues. She states that she has not returned to the misuse of substances even when faced with her current stresses of living in a donga in the Northern Territory unable to work in her profession in Queensland
NOTES FROM QUEENSLAND COLLEGE OF TEACHERS
The Queensland College of Teachers provided information to assist the Tribunal, including a document outlining events which occurred in term 3 of 2020. The document states:
(a)On 8 July 2020, the principal of a regional / remote school contacted KCM to discuss her application for a temporary position. KCM advised that she did not require any particular adjustments of account of health issues, as her only medical condition was migraines, which were now controlled with an epipen. She confirmed that there would be no difficulties driving between schools in the region (up to 1.5 hours one way);
(b)When KCM arrived on 11 July 2020 she was carrying a lighter. The principal asked her if she smoked and KCM advised “only one at night and a patch during the day”. KCM was advised that smoking was not allowed in or around the house or within 5 metres of the school grounds;
(c)On 12 July KCM walked around the school with the principal and advised that, due to knee pain, she may not be able to walk up some stairs. The principal noted that this was not disclosed during the phone conversation on 8 July;
(d)On 14 July KCM advised the principal that she had consulted the union and was now aware of the need to advise that she takes marijuana for pain management via a vape. KCM advised that she had not notified the principal before as she had not wanted to be discriminated against. She said that she had been vaping in the backyard since her arrival in the town on 11 July. KCM advised that she had medical records at home and the principal requested that she go to the accommodation and collect the paperwork. The principal went looking for KCM about half an hour later to follow up on the paperwork. KCM was in the staff room and advised that she did not have the paperwork but had sent an email to “the company” to get her medical information. This information was received later in the day. KCM advised the Tribunal that had been unable to locate her folder with the information requested, and made other arrangements to follow up;
(e)Later that morning a staff member reported that KCM appeared dazed and confused at the bottom of the stairwell. KCM had disclosed that she is “not good with directions” and the staff member was concerned about whether KCM would be able to drive between schools. In response, KCM says that she was confused at the stairwell as she had just arrived at the school and was unsure which direction she should take;
(f)The principal recorded observations of a strong sickly sweet scent on KCM’s person, and that KCM had appeared confused in conversations and had not followed requests (in relation to going home to bring back the paperwork). KCM had not located the principal to advise the paperwork was not available and appeared confused when the principal followed up the request. It was noted that KCM “seems to forget conversations that have occurred and reconfirms information”;
(g)It was observed that KCM “appears to have more significant health issues than disclosed in conversation with Principal prior to appointment and may need more medical support than indicated – right knee; has difficulty walking up stairs; slurs words and has droopy left side of lip; uses medicinal marijuana for ‘pain relief’”. In response, KCM says that she has had palsy which causes her to slur her words. She states that she has never been under the influence of marijuana at that school. KCM states that she didn’t intentionally avoid telling the principal about her prescribed marijuana “it just didn’t come up”. When the union advised her that she needed to disclose, she did so.
(h)A staff member reported that when she was showing KCM around town at around 4.30pm after a staff meeting on 14 July 2020, KCM’s bag fell open and the contents, including marijuana, fell out. Concerns were raised that KCM had taken the drug to school in her bag. In response, KCM says that:
o   She returned home after school and put the marijuana in her bag as she was in a share house with strangers and didn’t want to leave it at home;
o   She had it in her bag as she had not yet set up a safe in the home she was living in;
o   She would not think of taking it to school as it would be dangerous in case students accessed it in her bag; and
o   She had left it at home during the day as the house was empty. In her submissions dated 4 April 2023, KCM states that the marijuana was kept locked in her car when she was not at work.
APPLICANT’S SUBMISSIONS
This is not an “exceptional case”. She has no prior blemish on her record, and the drug possession was not a violent or serious criminal offence.
The Human Rights Act 2019 (Qld) expressively protects her right to privacy and reputation, which may potentially encompass a right to work. It is acknowledged that her rights may be justifiably limited by the competing right of every child to protection.
The respondent’s decision was influenced by her prescription for medicinal cannabis. She feels she has been treated less favourably than someone with an impairment who was prescribed a different drug or treatment.
She engaged in unlawful activities for some six months, four years ago. That is not, as suggested by the respondent, “a protracted time”. Her actions were inappropriate and unreasonable. She has not committed such an offence again since and has “changed significantly” since that time. She is not involved in illegal drug use, and is not involved with the same people she was involved with in early 2018. She feels remorse and regret, and has learned lessons from the experience.
Sufficient time has passed for the Tribunal to be satisfied that she will not return to illicit drug use.
She uses less than the prescribed amount of medicinal marijuana and is careful not to exceed any dosage. She does not binge drink and has not had an alcoholic drink for years.
She understands the negative effects associated with using cannabis around children. She has attended a number of treatment programmes and has used her learnings to replace cannabis misuse with relaxation methods, meditating and mindfulness. She has not misused cannabis since March 2018. She does not see herself ever reoffending, and has employed preventative strategies such as visiting her GP regularly, attending programs at the hospital, and attending regular appointments with her psychiatrist and psychologist.
She has enjoyed a happy and successful career, gained the respect of others, and has an unblemished record of teaching children.
She has insight, and seeks help when needed. She has a supportive ongoing relationships with Dr K when in Brisbane, another GP in Darwin, and with her psychiatrist.
If marijuana is required for treatment of her medical condition, she is able to access it through her prescription and so there is no risk she will use non-prescription marijuana in the future.
Issuing a positive notice will promote the rights, interests and well-being of children.
RESPONDENT’S SUBMISSIONS
The applicant’s offending is relevant to employment that involves children as it raises questions about her respect for the law, which is “critical for adults working with children as it contributes to the creation of safe and protective environments for children”. The behaviour also raises questions about her ability to provide a protective environment for children in her care, and her ability to judge appropriate behaviour and present as a positive role model to children and young people in her care.
In relation to the s 228 factors, the Tribunal should take into account that in August 2018 the applicant signed a practice and conduct agreement with the Queensland College of Teachers. The agreement “indicated that a ground of discipline existed against the Applicant and the appropriate actions to be taken in relation to the ground was to issue her a warning”.
The Tribunal should have regard to the information regarding the relief teacher position taken up by the applicant in 2020. The recency of the concerning behaviour “is a risk factor”. The information is relevant to employment because:
(a)Her decision not to disclose her prescription for medicinal cannabis prior to taking the position raises questions about her appreciation of the potential impact of medicinal cannabis on her judgment, and her ability and willingness to priorities the rights, interests and wellbeing of children and young people over her own rights, interests and wellbeing; and
(b)The material suggests that Department of Education held concerns about the applicant’s ability to teach children and young people in her care and/or fulfill the role of District Relief teacher while using/prescribed medicinal cannabis.
The applicant’s evidence at the hearing was at times inconsistent, or at odds with, other filed material / written statements. This, in turn, raises questions about the reliability of her recollection of account of various events. In particular, the applicant’s evidence that cannabis was always stored in a safe was not accurate (noting that a bag fell out of her handbag while with a school staff member in July 2020), and her position with respect to how consistently she takes the medication has changed, variously describing taking it not consistently, but as required, and also stating that she takes it very consistently.

Concern is raised regarding the applicant’s ability to exercise sound judgement. For example, in January 2018 the applicant was noted by hospital staff to be in hysterics and sobbing when denied the ability to go outside for a cigarette, and in July 2020 the Deputy Principal of her school noted her to be looking confused and the applicant disclosed at the time that she gets confused when driving and is not good with directions. The Deputy Principal noted that the applicant seemed confused in conversations and had not followed requests. In October 2021, hospital staff noted that the applicant had reported struggling to remember things and being very forgetful and confused at times. The applicant is noted to have reported memory, concentration and cognitive problems in the material.
The Tribunal should not accept the evidence from Doctors K and G that the applicant’s prescription for medicinal cannabis has significantly reduced her risk of

abusing / misusing substances. This is because, despite being prescribed the medicinal cannabis since 2019, the applicant herself provided evidence that she had used cannabis in a manner other than as prescribed and other than as permitted in October and November 2021.
The material raises concerns about the nature and extent of the applicant’s use of substances. The Applicant’s past misuse of substances appears to have been more extensive than the applicant suggests in some of her material:
(a)She advised that she began self-medicating with marijuana in around September 2017, about six months before the police searched her home. At different times, the applicant advised that she was smoking joints 2 – 3 times per week in the evening, and also claimed to have been smoking “most nights” for six months in 2017 – 2018;
(b)In January 2018, hospital records note that the applicant was smoking 10 joints per day, and had used marijuana that morning;
(c)In October 2021, the applicant was discharged from hospital after breaching hospital policy and an agreement she made not the smoke cannabis while an inpatient;
(d)When admitted to hospital in November 2021, records note “chronic THC abuse”, and that the applicant had smoked a joint that morning. During the same admission, the applicant was found with diazepam in her handbag.
The hospital material raises concerns about the stability of the applicant’s mental health. She has had long standing mental health issues, and been treated over the years since 2011 for anxiety/depression and dysthymia, and there is a suggestion in the hospital material of “bipolar tendency”, “borderline traits” and “cluster B traits”. In February 2022, the applicant reported difficulties with emotional regulation, saying that she almost always felt agitated, touchy and tended to over react to situations, and that she often was intolerant of anything that kept her from getting on with what she was doing and close to panic, and unable to experience any positive feelings at all.
If the applicant’s mental health is not well managed, there is a potential risk of harm to children and young people in her care.
FINDINGS OF THE TRIBUNAL
I accept that the applicant has a long history as a teacher, and particular interest and skills in supporting neurodivergent children. I accept that she has made significant contributions to the support of children over the years.
I accept that the applicant is diagnosed with significant painful medical conditions, and that she has shown great determination to deal with the symptoms of those medical conditions and return to work.
I do not accept the Department’s submissions that the Tribunal should rely on concerns held by the Department of Education in relation to the effect medicinal cannabis would have on the applicant’s ability to teach children and young people in her care and/or fulfill the role of District Relief teacher. I prefer the evidence of the doctors who provided evidence on behalf of the applicant and I accept that, in the particular circumstances of this case, use of medicinal marijuana at night as prescribed would not impact on the applicant’s ability to teach children and young people in her care and/or fulfill the role of District Relief teacher.
The applicant has been convicted of an offence other than a serious offence. This is termed “relevant information” in s221 of the Act. The medical and teacher’s college information is also “relevant information” which I have considered. I must determine whether this is an exceptional case in which it would not be in the best interests of children for the chief executive to issue a working with children clearance to the applicant.
The factors the Tribunal must take into account are listed in the legislation (s 226, s 228). Relevantly, I have considered:
(a)As noted above, the applicant has a conviction in relation to a drug offence which occurred in 2018. The offence is not a serious or disqualifying offence;
(b)Drug offences are highly relevant to employment, or the carrying on of a business that involves or may involve children. Quite apart from the obvious risks if children were able to access the drugs, there is a significant risk to children if the applicant were to be under the influence of drugs while working with children; and
(c)The penalty imposed by the court, and the reasons, are set out above.
There is a difficulty in the applicant’s case which cannot be overcome. Her evidence is unreliable:
(a)While she has indicated that she stores the medicinal marijuana in a safe and only takes it at home as prescribed before immediately retiring to bed, the Tribunal has heard evidence that she carried it around in her handbag when employed as a district relief teacher. Further, the Tribunal has heard evidence that she uses it at family friendly social gatherings.
(b)While the thrust of her evidence was that she used illicit marijuana for a short period of time prior to obtaining a prescription for medicinal marijuana, other evidence suggested that she continued to use illicit marijuana for an extended period, and in fact was caught with it (as well as diazepam) in hospital well after receiving the prescription.
(c)I find it unlikely that the medication found in her possession when in hospital was there because it had been caught up in her underwear, and that she didn’t know it was with her.
It is difficult to make an assessment as to how the memory and cognitive problems identified in the material and by the applicant will affect her long term, and potentially impact on her ability to meet the needs of children in her care. The applicant states that dementia has been ruled out, and puts her presentation during periods of confusion down to stress. I accept that difficulties noted at the time of her admission to hospital may not be an accurate reflection of her wellbeing when she is not in crisis.
The applicant’s failure to be frank with the school administration when being considered for a relief position in 2021 raises further concerns. The applicant deliberately omitted to mention that she was experiencing significant health issues, or that she had been prescribed and was using medicinal marijuana. The applicant’s actions in smoking marijuana (albeit prescribed) in the backyard of teachers’ accommodation in a regional town is something which it would be reasonable to expect should be raised and discussed with school administration. Further, it would be reasonable to expect the applicant to be frank in disclosing health issues she was experiencing, particularly as she was directly asked about that issue.
On balance, I cannot rely on the evidence of the applicant. Her evidence was confusing and contradictory. While she has the support of friends and medical practitioners, the inconsistencies in her evidence, and her history of failure to disclose important information is sufficient to establish an exceptional circumstance. I cannot be satisfied as to the applicant’s current use and storage of medicinal and illicit marijuana, and I cannot be satisfied that she has disclosed all relevant information to the Tribunal.
I am satisfied that the applicant’s case is exceptional within the meaning of s 221 of the Working with Children (Risk Management and Screening) Act 2000 (Qld).

HUMAN RIGHTS ACT CONSIDERATIONS

In making this decision, the Tribunal must give proper consideration to relevant human rights under the Human Rights Act 2019 (Qld). It is unlawful for the Tribunal, conducting the review as a “public entity” and acting in an administrative capacity, to make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a relevant human right in making a decision.
A decision is compatible with human rights if it does not limit a human right or if it limits a human right in a way provided for by the HRA. Human rights may be limited only if permitted under the Act, and a human right may be subject under law only to reasonable limits that can be demonstrably justified in a free and democratic society based on human dignity, equality and freedom.
To give proper consideration to a human right, the Tribunal must identify the human rights that may be affected by this process and decision, and consider whether the decision is compatible with human rights.
I consider the following human rights are potentially impacted through this process and by this decision:
(a)S 15 right to recognition and equality before the law.
The applicant raises concerns that she may have been discriminated against because of her lawful use of prescribed medicinal marijuana. As noted above, I do not consider the use of medicinal marijuana in the manner described by the applicant (in the evening at home immediately before bed when there are no children in her care) to be an issue. I am not satisfied that the applicant’s rights to recognition and equality before the law have been interfered with.
(b)S 25 privacy and reputation.
The applicant has the right not to have her privacy unlawfully or arbitrarily interfered with, and the right not to have her reputation unlawfully attacked. In conducting this proceeding and issuing this decision, the Tribunal is obliged to discuss and consider personal and private matters. I am not satisfied that has been in breach of the applicant’s rights.
(c)S 26 protection of families and children.
I have taken into account the rights of children to the protections that are needed and are in each child’s best interests.
(d)S 31 fair hearing.
I am satisfied that the rights of the applicant to a fair hearing have not been limited. The application has been determined by a competent, impartial and independent tribunal after a fair hearing. The parties are being advised of the reasons for the decision.
The applicant submits that a negative notice denies her the right to work, which while not expressly mentioned in the HRA, exists more broadly in the law. I have considered the limitation on the applicant’s ability to work as a teacher or a tutor in Queensland which is imposed as a result of this decision. I do not consider that factor is sufficient to override the reasons given above for a confirmation of the decision to issue a negative notice.
Further, I am satisfied that this decision is compatible with human rights as any limitation on human rights is only to the extent that is reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Given the concerns detailed in this decision, I consider any limitation reasonable and justifiable.
In any event, the Working with Children (Risk Management and Screening) Act 2000 (Qld) requires that the Act be administered under the principle that the welfare and best interests of a child are paramount, and the objects of the Act include promoting and protecting the rights, interests and wellbeing of children and young people in Queensland.
The Tribunal may make a decision not compatible with human rights if it could not reasonably have made a different decision because of a statutory provision. In the event that this decision impacts on the applicant’s human rights, I am satisfied that I am able to lawfully make this decision because the WWC Act compels the Tribunal to administer the Act on the basis that that the welfare and best interests of a child are paramount.
This decision is compatible with human rights.