MJL v Commission for Children and Young People and Child Guardian
[2011] QCAT 107
•16 March 2011
| CITATION: | MJL v Commission for Children and Young People and Child Guardian [2010] QCAT 107 |
| PARTIES: | MJL |
| v | |
| Commission for Children and Young People and Child Guardian |
| APPLICATION NUMBER: | CML136-10 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 16 March 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Ms Susan Bothmann, Presiding Member Dr Alison Holm, Member |
| DELIVERED ON: | 16 March 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] That the decision of the Commissioner for Children and Young People and Child Guardian made the 6 September 2010 to refuse the application of the applicant to cancel a negative notice issued on 2 August 2007 be confirmed. [2] That pursuant to section 66 of the Queensland Civil and Administrative Act 2009 the Tribunal prohibits the publication of the name of the applicant in the decision. |
| CATCHWORDS : | Application for removal of negative notice made 2007 – applicant suffering mental illness at time of offences – applicant seeking to work in child care – applicant undertaking treatment; risks remain Commission for Children and Young People and Child Guardian Act 2000 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | The applicant appeared on her own behalf |
| RESPONDENT: | Jeff Woodberry for the respondent |
REASONS FOR DECISION
Background
MJL is the Applicant in these proceedings. She was issued with a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (the Act) on 2 August 2007.
On 28 August 2009 the applicant made an application to have the negative notice cancelled pursuant to section 236 of the Act. Following receipt of submissions from the applicant on 5 November 2009 her eligibility to hold a blue card was reassessed and by letter from the respondent dated 6 September 2010 she was notified that her application had been refused.
In accordance with reasons dated 6 September 2010, the Commission refused the applicant’s application to cancel her negative notice.
The applicant seeks a review of the Commission’s decision and applied to the Tribunal on 9 September 2010 for this review.
The application was heard in Brisbane on 16 March 2011.
The relevant law
The Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) gives the Queensland Civil and Administrative Tribunal (the Tribunal) jurisdiction to conduct a review of the Commission’s decision. Section 24 outlines the options available to the Tribunal. These options are that the Tribunal may:
(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
Subsection (2) of section 24 of the QCAT Act provides that the Tribunal’s decision is taken to be a decision of the decision-maker for the reviewable decision. The application is for a review of the Commissioner’s decision to refuse to cancel the applicant’s negative notice. In deciding whether to cancel the negative notice the Tribunal must put itself in the shoes of the Commissioner.
Section 221 of the Act provides as follows:
(1) Subject to subsection (2), the commissioner must issue a positive notice to the person if—
(a)the commissioner is not aware of any police information or disciplinary information about the person; or
(b)the commissioner is not aware of a conviction of the person for any offence but is aware that there is 1 or more of the following about the person—
(i) investigative information;
(ii) disciplinary information;
(iii) a charge for an offence other than a disqualifying offence;
(iv) a charge for a disqualifying offence that has been dealt with other than by a conviction; or
Note for subparagraph (iv)—
For charges for disqualifying offences that have not been dealt with, see sections 208, 217 and 240 (in relation to prescribed notices), and sections 269, 279 and 298 (in relation to exemption notices).
(c)the commissioner is aware of a conviction of the person for an offence other than a serious offence.
(2) If subsection (1)(b) or (c) applies to the person and the commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the commissioner to issue a positive notice, the commissioner must issue a negative notice to the person.
Section 226 of the Act outlines the various factors that the Tribunal must take into account in deciding if an exceptional case exists where there are convictions for offences that are not serious offences as defined in the Act.
The Act does not define what an exceptional case is. The law is now well established that it is a matter of discretion depending on the individual circumstances pertaining to the case.
In Kent v Wilson [2000] VSC 98, Hedigan J of the Victorian Supreme Court commented on the term “exceptional circumstances” when considering a breach of community correction orders. At paragraph 22, he stated:
“Exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), the greatest dictionary, as meaning ‘unusual, special, out of the ordinary course’. This does mean any variation from the norm.
The facts must be examined in the light of the Act, the legislative intention, and the interests of the prosecuting authority, the defendant and the victims. It may be that the circumstances amounting to be exceptional must be circumstances that rarely occur and perhaps be outside reasonable anticipation or expectation.
Courts have been both slow and cautious about essaying definitions of this kind, leaving the content of the meaning to be filled by the ad hoc examination of the individual cases. Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors.”
The focus of the Act is the protection of children. It is intended to put gates around employment/volunteering to protect children from harm.
The former Children Services Tribunal has previously endorsed principles from the Family Law jurisdiction relating to access and contact, as applicable to assessing applications for blue cards.
In the former Children Services Tribunal matter of OAA re (2006) QCST 142 the Tribunal stated at paragraph 41 of its Reasons:
“The issue of transporting the legal approach in the family law jurisdiction to the relevant passages of the Act under which the Commissioner operates needs to be considered. The family law test in essence is that the Court will not grant contact to a particular child if that would expose that child to an unacceptable risk of harm by the parent seeking such contact. The question then to be posed is whether it is appropriate for the Commissioner to refuse a person contact with any Queensland children if the evidence establishes an unacceptable risk to those children? The Tribunals’ answer to this question is in the affirmative. Further, the Tribunal considers that this legal approach taken in the family law jurisdiction fits comfortably with the approach which should be pursued under the Commissioner’s Act. In both jurisdictions the over-riding principle is that the welfare and best interests of children are paramount.”
This Tribunal considers this an appropriate approach. In effect, this Tribunal needs to consider whether the applicant represents an unacceptable risk of harm to children, in determining whether hers is an exceptional case.
The Act in section 6 provides that the Act is to be administered under the principle that the welfare and best interests of a child are paramount. It is this principle that the Tribunal must apply. Section 155 further provides that:
“Without limiting section 6, the paramount consideration in making a decision under this chapter [relating to employment screening] is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing”.
The Tribunal must take this into account in determining this application.
The relevant evidence
There is no dispute that a series of offences occurred between 14 March 2003 and 23 February 2006 and the applicant was convicted of matters including wilful damage, serious assault, obstructing police, stalking, arson and dangerous operation of a vehicle. Most of these offences arose from an on-going dispute between the applicant and various members of a church of which she had been a member. The outcomes for the applicant included fines and a probation order for three years.
The Tribunal had a Transcript of Proceedings dated 9 March 2004 which included the sentencing remarks of Judge Boyce of the District Court. He noted that the applicant suffered from a psychiatric illness falling short of insanity and that he had ‘serious doubts about the ability of the accused to comply with an intensive corrections order’. The Tribunal also had before it the Transcript of Proceedings dated 27 January 2006 which included sentencing remarks of Judge Samios of the District Court in relation to the later series of offences which included the charges of arson and wilful damage. The judge noted that the applicant was subject to a forensic order from the Mental Health Court and was undergoing psychiatric treatment.
There is no dispute that the applicant has not reoffended since the last series of offences from 2006. The Tribunal had a considerable amount of medical material in the form of doctor’s reports, clinical notes and assessments concerning the applicant’s progress in relation to her mental state since 2006. In particular a report from Dr J, Consultant Psychiatrist, her treating doctor at the time, dated 6 July 2007 noted that she has responded well to treatment. She was diagnosed as having a Schizo-Affective disorder, being a serious mental disorder requiring long term treatment and monitoring. He noted further that her mental state had settled and that she has been actively involved in the rehabilitation programme. She had completed a TAFE course. In summary the doctor noted: ‘Past history suggests she will continue to need ongoing treatment and support and that she will need to manage her stress levels given that increased stress has in the past led to relapse and poor coping mechanisms’.
The applicant was still on the forensic order when she first applied for a blue card and the negative notice was issued. That order was revoked on 30 April 2008. Her probation order was completed on 26 January 2008. Since then the applicant became engaged and has subsequently married.
The Tribunal also had a report from Dr G, Consultant Psychiatrist dated 9 March 2011. She indicated the opinion in the report was based on a personal interview with the applicant on 3 February 2011 and access to the most recent volumes of the ten that make up the applicant’s medical notes plus discussions with her previous consultant. The Tribunal also heard evidence from the doctor and she was questioned by the respondent in the hearing. The applicant was also invited to question the doctor. The Tribunal was inclined to place a great deal of weight upon the doctor’s evidence, notwithstanding that she has only just begun her therapeutic relationship with the applicant.
Her report noted that the applicant suffers from a serious mental disorder which is still present and which includes the applicant admitting she still experiences auditory hallucinations which were sometimes ‘quite bad’. The doctor noted the applicant has not always adhered to her treatment regime and in 2009 she stopped taking her medication without discussing it with her doctors. Because her deterioration was subtle the doctor was concerned that a relapse may not have been noted until another manic episode was well established. She noted the applicant also suffers from borderline intellectual disability. While there is no doubt that she has made significant progress the doctor concluded ‘I believe there are still too many risks for me to feel comfortable in endorsing MJL for a Blue Card…Dr J who knows her well shares my reservations…I would be very concerned by the kind of stress MJL might be exposed to in an environment where she needed to work with children…I believe her intellectual impairments in association with chronic psychotic symptoms may interfere with problem solving and other frontal lobe and executive functions. If she suffers too much stress, she may relapse into severe psychosis which historically has led to serious criminal behaviour’.
The Tribunal also heard evidence from FD, psychologist and case worker for the applicant. In response to a question from the applicant FD indicated she could not support her application at this stage. She felt that the applicant had made significant progress but she would support the views of Dr G in terms of her current situation. She acknowledged the applicant’s desire to move on and improve her mental health and coping facilities in the future.
The applicant also gave evidence to the Tribunal. She explained that she got significant support from her husband and she was keen to take up work in child care. She said she did not believe her illness was as serious as the doctors made out. It had been in 2004 but she has moved on since then. She had stopped her medication because she had felt well enough without it. She admitted she had told her treating team she was still taking her medication even when she had stopped. She is only on a low dose now so feels she would not stop again without consulting her doctors. She does still get hallucinations but not so frequently. She feels she has been on an even keel for a long time now. She has had some contact with young children through her family but has never looked after them overnight. Her husband suffers from schizophrenia but he is compliant with his own medication and treatment. Her mother, father and sister are supportive and she talks to them on the phone at least once per week.
The Tribunal also had the evidence of two referees. BM is an occupational therapist who first met the applicant in a professional capacity in December 2005 but who now describes herself as a friend. She visits the applicant at four to five monthly intervals. She initially suggested that the applicant has always been compliant with her medication but subsequently acknowledged that she knew she had stopped taking it for a while. She felt this was not unusual behaviour as patients often want to ‘test the boundaries’ a bit for themselves. She felt the applicant had evidenced the capacity to deal with stresses in relation to a previous housing situation. She was sure the applicant genuinely acknowledges that she has a mental illness that will require life long management.
PR indicated the applicant had been supported in the Open Minds Personal Helpers and Mentors Program. The applicant had accepted the programme and set a number of personal goals. ‘She tries hard in her daily life’. She noted that the applicant is quite low functioning intellectually but has come through her psychosis and is more understanding of her mental health.
The Applicant’s submissions
As to why she should have a blue card the applicant submitted:
§ She has been mentally stable for years.
§ She does not think about the church anymore.
§ Child-care is her passion.
§ The courts had not recorded convictions in some of the matters.
§ She has dealt with stress adequately in relation to the church and in the nursery where she did some work under supervision.
The Commissioner’s submissions
The representative for the Commission noted he felt there was no need to dwell on the criminal offences other than to point out in relation to the motor vehicle matter the applicant rammed another vehicle in which there were three young children.
He noted, in summary these salient points:
§ There has been insufficient time since the lifting of the forensic order and the applicant’s current mental instability does not alleviate the risks.
§ Neither Dr G’s nor Ms D’s clinical judgements were challenged.
§ There is no objective evidence that the applicant is compliant with her medication.
§ Her ability to adequately deal with stress has not been fully tested.
§ There remains some doubt as to whether the applicant has adequate insight into her illness and its consequences. Her application to the Tribunal making reference to having been ‘punished enough’ is indicative of a lack of awareness about the relevant issues.
§ There is evidence the applicant is susceptible to stress and that risk of relapse can arise without warning.
In her written reasons for deciding not to cancel the applicant’s negative notice the Commission said:
“The paramount consideration in making an employment screening decision is a child’s entitlement to be cared for in a way that protects them from harm and promotes their wellbeing.
With this in mind, I have assessed the material before me, including the material provided by the applicant, and I am satisfied that at this point in time, an exceptional case exists in which it would not be in the best interest of children for the application to be granted.”
The Tribunal view
The Tribunal is mindful of section 226 in its analysis below.
The Tribunal was impressed by what the applicant’s referees wrote and how they spoke of her efforts to rehabilitate herself and come to grips with her illness. All of the witnesses were very supportive in acknowledging her progress.
None of the witnesses felt that she would be a risk to children as such but the main concern expressed by her therapeutic team members was that if she is placed in a stressful situation without proper oversight she could relapse into a psychotic episode, not unlike the ones she experienced at the time of her offences.
The Tribunal does not doubt the applicant’s sincerity in wanting to gain employment in the child care field and in her own belief in her capacity to manage.
On any view her ceasing to take her medication on her own behest and failing to tell the medical team, rather, misleading them, is of great concern. Her assurances that she would not do so again were not entirely convincing.
Notwithstanding that the Tribunal also endorses the efforts and achievements the applicant has made since 2006 the Tribunal is not satisfied that she should have a blue card at this time. There is no guarantee that if she were to work with children that she would always be adequately supervised if and when situations of high stress arose, as they invariably would when dealing with groups of young children.
She wishes to work with children or the elderly. The Tribunal feels she should perhaps find employment in some other arena as a stepping stone towards what she desires. She needs to demonstrate she has the level of mental health and resources to be able to handle stresses at work and not relapse into serious illness again, for her own well being as well as that of the community.
It is the Tribunal’s view that she needs to continue to work with the abundant medical and social resources she has and be appropriately assessed by a professional as not posing a risk to children before she can work with children.
The Tribunal’s role in this jurisdiction is the protection of children whose welfare, safety and best interests are paramount. At this time the Tribunal believes the applicant poses an unacceptable risk because of her mental state. The Tribunal considers hers is an exceptional case, such that it would not be in the best interests of children for the applicant to have a blue card at this time.
The decision of the Commissioner to refuse to cancel the applicant’s negative notice is confirmed.
The Tribunal also heard submissions from the applicant and respondent in relation to a non-publication order concerning the applicant. The applicant made it clear in the hearing that she was particularly concerned about her medical history and her identity being disclosed. The respondent’s representative noted that the Commissioner’s practice is not to advocate one way or the other. The Tribunal is mindful of the need for transparency and clarity in the legal system and does not make non-disclosure orders lightly. However, in light of the distance in time from the offences, the relative lack of seriousness in the behaviour related to the offences and in particular the applicant’s significant progress in overcoming her serious illness the Tribunal determined that such an order is appropriate to avoid further endangering the mental health of the applicant.
Pursuant to section 66 of the Queensland Civil and Administrative Tribunal Act 2009, the Tribunal orders that a non-publication order is made prohibiting the publication of any material before the Tribunal which would identify the name and contact details of the applicant referred to in these reasons.
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