PC v Commission for Children and Young People and Child Guardian
[2014] QCAT 274
| CITATION: | PC v Commission for Children and Young People and Child Guardian [2014] QCAT 274 |
| PARTIES: | PC (Applicant) |
| v | |
| Commission for Children and Young People and Child Guardian (Respondent) |
| APPLICATION NUMBER: | CML233-13 |
| MATTER TYPE: | Childrens matters |
| HEARING DATE: | 3 March 2014; 17 March 2014 Final written submissions |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Ford |
| DELIVERED ON: | 27 May 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The decision of the Commissioner to refuse the application to cancel the negative notice is set aside. 2. The Commissioner is to issue a positive notice and Blue Card to PC. 3. The Tribunal prohibits the publication of the names of the adult, his referees and of the organisations in the decision relating to application number CML223-13. |
| CATCHWORDS: | BLUE CARD – REFUSAL TO CANCEL NEGATIVE NOTICE – suitability to work with children - where multiple offences – where mental health issues exist – where no serious offences – whether applicant’s case is exceptional Commission for Children and Young People and Child Guardian Act 2000 (Qld), s 6(1), s 155, s 221, s 226, s 353 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 66 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | PC represented himself |
| RESPONDENT: | KL represented the Commissioner |
REASONS FOR DECISION
PC is a married man with a strong belief in God. He requires a Blue Card to work with children in his and his wife’s ministry work with a Church. He owns his own business and would need a Blue Card to expand into larger contracts, such as working in schools. PC considers that God’s word gives him all the peace he needs. He is a loving father to two small children.
PC has a significant criminal history that includes both convictions and charges for multiple offences relating to violence, drugs, dishonesty, property and nuisance. This history is between 1993 and 2008. It is because of this history that the Commissioner for Children and Young People and Child Guardian issued a negative notice in 2010 and refused his application to cancel the negative notice on 8 November 2013.
PC had been diagnosed with a psychotic illness in the past. A number of his offences were subsequently heard in the Mental Health Court rather than through criminal court proceedings. PC ceased taking medication after he believed he was set free from his addictions (valium and nicotine) and his schizophrenia. He committed himself to a religious life and made a conscious decision to move forward in a positive way while in prison in 2008.
The Tribunal must consider the relevant legislation. PC has not committed a serious offence. The Commissioner formed the view his case was exceptional and that he should not get a Blue Card. Is it in the best interests of children to issue a positive notice to PC in considering the intent of the legislation? Can the Tribunal be satisfied that PC is suitable against PC’s background of an extensive criminal history and the opposing submissions put forward by PC, his witnesses and the Commissioner?
The standard of proof is on the balance of probabilities. Any hardship suffered by PC in not having a Blue Card is not a relevant consideration.
In assessing whether this is an exceptional case, I have considered all of the available evidence and I have weighed up the risk factors against the protective factors, including PC’s insight and that of his witnesses into his past behaviours and present circumstances.
RISK FACTORS – What is the negative evidence?
PC has 10 convictions of assault related offending, 10 convictions for breach of domestic violence order offending and 8 convictions for drug offending. A number of these offences were committed in the presence of children, showing a scant regard for their effect on the emotional and physical wellbeing of these children.
Numerous offences were committed when PC was suffering from mental health problems. He had been treated for schizophrenia from 1996 until 2008.
The Commissioner holds significant concerns regarding the lack of independent monitoring, counselling or supervision of PC’s mental health. His long-term psychiatrist Dr S confirmed that he had stopped medication in March 2008. Written material from PC reflects an overwhelming view that he does not foresee the likelihood of needing conventional medical intervention in the future.
The power of PC’s faith and his view he has been cured by this faith sits uncomfortably with the Commissioner.
The Commissioner is concerned that PC is less inclined to admit to suffering symptoms of delusions, given his belief that hallucinations are the experience of a person being demonised or in possession of Satan rather than having a mental illness.
PC had experienced hallucinations and hearing voices in the past.
PC is considered, by the Commissioner, to be clearly reluctant to rely on conventional medical treatment unless his efforts at self-treatment fail. This is seen as a significant risk factor, particularly having regard to Dr L’s evidence that there is always a possibility of relapse in mental health.
Additionally, the Commissioner states that PC does not have a ‘preventative plan’, which may affect his ability to identify early warming signs or behaviours that may be symptomatic of a relapse of schizophrenia.
The Commissioner asserts that it is dangerous to accept PC’s reliance on his faith alone to maintain his long-term mental wellbeing. It is also dangerous to accept this as a viable alternative to conventional medical intervention that is supported by evidence of its effectiveness and reliability.
The Commissioner gave weight to comments made in a recent Tribunal review decision relating to a Queensland Building Services Authority (‘QBSA’) decision and subsequent granting of a contractor’s Licence. The Tribunal had expressed concerns regarding PC and his management of his mental health. The QBSA decision was overturned however.
PROTECTIVE FACTORS – What is the positive evidence?
PC has not committed any offences since 2008.
There has been no evidence of a mental health relapse since he made the decision to stop medication and to commit to his God in 2008.
PC considers his mental health is managed through good adaptive habits, eating and exercising correctly. Additionally, his religious faith plays a significant role in his life and he accredits it to him not having any symptoms of mental illness since 2008.
No evidence of psychosis or delusions was present when Dr L, consultant psychiatrist, undertook a mental health assessment on 13 January 2014. Dr L refuted the hypothesis that seeing visions and angels could be a psychosis. He opined it is a culturally determined religious experience.
PC communicates in a strong evangelical verbal mode. He is enthusiastic in expressing and sharing his religious experiences and how his life has changed through a commitment to his God. This communication however does not mean he is of unsound mind nor experiencing psychosis.
Dr L saw no need for PC to see a psychiatrist or doctor regularly, given PC’s current level of functioning. He believed in PC’s assertion that he had abstained from drugs and alcohol. Abstinence was critical in ensuring ongoing remission from mental health problems.
PC’s wife, had clear insight into the need for medical assistance if PC demonstrated mental health concerns. She saw their partnership as mutually respectful and that PC would listen to her if his health deteriorated. While they did not have a formal ‘plan’ in place, timely appropriate medical input was accepted as vital if needed.
PC’s witnesses were all familiar with his criminal history, his past addictive behaviours and mental health issues.
Two pastors from his church, PB and PS, confirmed his passion to do well in life and to give back to his community.
He is seen as a gentle, attentive, caring and attentive father who portrayed the same qualities in the church environment. They had seen no evidence of illicit drug taking or alcohol use in their numerous church and social gatherings.
The pastors were involving PC and his wife in leadership development to enhance their call to the ministry.
PC’s wife is seen to complement PC and his desire to achieve in business and in the church community. There is evident mutual respect and commitment to their marriage and their children. PC’s wife is a professional woman who values hard work and a purposeful life like her husband.
PC’s wife believes that they communicate well with each other. The use of praying together adds in addressing any concerns they have. They both look to the future with optimism.
Conclusion
I am not satisfied that this is an exceptional case and thus PC be refused his application to cancel the negative notice. While acknowledging the Commissioner’s concerns, the evidence challenges these concerns substantially.
PC’s witnesses were highly credible and, importantly, attuned to the legislative impost and focus on the welfare and best interests of children.
It is now six years since PC turned his life around. He has sustained a commitment to his God and to living a better life.
PC is in a strong supportive marriage with a wife who is his partner in his religious faith as well. He is a committed father and role model to his children.
There is no evidence that PC has experienced a relapse into schizophrenia even though he stopped taking medication in 2008.
The Tribunal accepts that PC’s religious beliefs and experiences are not those of a man who is psychotic or delusional or having hallucinations. PC is evangelical in his communication but this is not evidence of a mental health condition. He believes in a God, he does not think he is a God.
PC runs his own successful business. This would not be possible if he were indulging in his past addictions, which led to his past criminal behaviour.
PC’s wife impresses as a strong woman who would ensure PC addressed health issues if they emerged. This commitment was evident in the hearing and PC respected her position that she would pursue, and encourage him to seek, medical assistance if needed.
There is no evidence that PC has committed any criminal offence in the past six years.
PC and his family are well established in a religious community that holds him in high esteem and who see him as a future leader along with his wife.
The protective factors outweigh the negative factors in this case.
The decision of the Commissioner to refuse PC’s application to cancel the negative notice is set aside, and the Commissioner is to issue a positive notice and Blue Card to PC.
Non-publication Order
On its own initiative, the tribunal is able to make a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009.
The Commissioner does not oppose the making of such an order, to the effect that the decision be de-identified.
The tribunal is satisfied that it is contrary to public interest to release identifying information regarding the applicant, his family, his witnesses or the organisations in which he is involved.
The principles of openness and accountability can still be achieved and maintained. The public interest is served by permitting the public to access details of blue card, the decisions made by the tribunal and the reasons behind the decisions. The publication of this decision and the reason will occur, albeit de-identified.
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