QCT v McNamara

[2010] QCAT 442

CITATION: Queensland College of Teachers v McNamara [2010] QCAT 442

PARTIES:	Queensland College of Teachers
v
Mr David Thomas McNamara

APPLICATION NUMBER:   OCR119-10  

MATTER TYPE: Occupational regulation matters

HEARING DATE:     18 August 2010

HEARD AT:  Brisbane

DECISION OF: Michael McCarthy – Presiding
Ron Joachim – Member
Beverley Day – Member

DELIVERED ON: 10 September 2010

DELIVERED AT:      Brisbane

ORDERS MADE:

Pursuant to section 160(2)(d)(h) and (j) of the Education (Queensland College of Teachers Act) 2005, that Mr. McNamara’s teacher registration be cancelled, and that he be prohibited from reapplying for permission to teach for a period of 2 years with a condition attached that prior to any future registration, he attend counselling or therapy with a registered psychologist, and a report be prepared addressing the level of insight or knowledge he has gained regarding:

(1) Differentiation between personal and professional relationships.

(2) Development and maintenance of professional standards when working with young people and actively determining and implementing professional boundaries with individual students.

(3) Risk management and early issue identification of potentially problematic situations, as well as initiating realistic solutions for avoiding risk of harm to students.

(4) Personal and social behaviour that could compromise the professional standing of a teacher, and the profession of teaching.

(5) Understanding the effect of inappropriate relationships between teachers and students.

(6)  An awareness of the power and balance between a teacher and a student, and;

(7)  Developing insight into the circumstances in which the teacher’s or student’s own emotional needs could influence the nature of a relationship with a student.

To protect the identity of the complainants, the following information is to be subjected to a non publication order under section 66 (1) of the Queensland Civil and Administrative Tribunal Act 2009;

-Complainants’ names, addresses and schools.

CATCHWORDS : 

DISCIPLINARY PROCEEDINGS – TEACHERS
Education (Queensland College of Teachers) Act 2005, ss12(3), 92(1)(h), 160(2), 158 - MEANING AND EFFECT
Where teacher commits serious breach of trust , where student vulnerable, whether teacher unsuitable to teach, whether standard of behaviour expected of a teacher not satisfied 

APPROPRIATE SANCTION
Significance of conduct of teacher, whether subsequent actions of student significant for determining sanction

QCT v Ashton [2010] QCAT 80

QCT v Field   [2010] QCAT 32

Bringinshaw v Bringinshaw (1938) CLR 336
Clyne v New South Wales Bar Association (1960)104 CLR at 201-202

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr J Gormley for the QCT
RESPONDENT:	Mr A. Knott of Macrossans Lawyers for Mr D. McNamara

REASONS FOR DECISION

Background

1. David Thomas McNamara is currently a registered teacher in Queensland with a registration expiry date of 31 December 2010.  Mr McNamara is 48 years old and was first granted registration on 12 January 1988.

2. On 1 March 2010, the Principal of a north side school (the School), where Mr McNamara taught, advised the Director of the Queensland College of Teachers (the College) that Mr McNamara had been stood down from duties on 3 February 2010 due to a child protection related issue.

3. The Principal further advised the Director of the College that he had appointed an investigator to investigate the issue as he believed a professional misconduct issue remained.

4. The specific allegations being investigated were:

i.On or about December 2008, Mr McNamara invited and took a former student of the School (PS) on a surfing trip to Bribie Island.  It is alleged that only Mr McNamara and PS attended this trip.

ii.On or about December 2008, following the surfing trip to Bribie Island, Mr McNamara took PS to his home where he had verbal interaction with her which was of an unprofessional and inappropriate nature.

5. Following the investigation the College suspended Mr McNamara’s registration under section 49 of the Education (Queensland College of Teachers) Act 2005, (the Act), on 26 May 2010.

6. On that day the College referred the disciplinary matter to the Queensland Civil and Administrative Tribunal (the Tribunal) under section 97 of the Act.

7. The Tribunal continued the suspension on 4 June 2010 and made a non publication order in respect of PS, her mother and two persons interviewed during the investigation. The Tribunal heard the referral in Brisbane on 17 August 2010.

Law to be applied

8. The College seeks an order under section 160(2) (d) and (j) of the Act. This section outlines the various options for disciplinary action available to the Tribunal if it decides that grounds for disciplinary action have been established (section 158).

9. Grounds for disciplinary action are outlined in section 92 of the Act.  Section 92(1) (h) contains the ground that “the teacher is not suitable to teach”.  It is this ground that the College submits is relevant to this matter.

10. The concept of “suitability to teach” is contained in section 12 of the Act.  This requires the consideration of a number of factors, including whether the person is suitable to work in a child related field (section 12(1) (b)).

11. The Act does not stipulate how that determination is made but the College in its written submissions argues that the Tribunal would find a person unsuitable to work in a child related field if that person posed an unacceptable risk of harm to children.

12. Further, section 12(3) of the Act provides that a person is not suitable to teach if that person:

1. Behaves in a way that does not satisfy a standard of behaviour generally expected of a teacher; or

2. Otherwise behaves in a disgraceful or improper way that shows the person is unfit to be granted registration or permission to teach.

13. The College holds the view that the relevant standard should be that of community expectation. This view is supported by reference to the main objects of the Act which refer to maintaining public confidence in the profession and protection of the public.

14. The relevant test to determine whether grounds for disciplinary action have been established is the reasonable satisfaction of the decision-maker, but having regard to the seriousness of the allegations, in accordance with the standard well described in Bringinshaw[1] .

[1] Bringinshaw v Bringinshaw (1938) CLR 336

The Evidence presented to the Tribunal

15. The Tribunal was provided with the QCT’s brief of evidence which consisted of:

·a copy of the teacher’s certificate of registration

·a copy of the notification of the allegations received by QCT from the School

·the notice of suspension forwarded by the QCT to the teacher, and

·the material relied upon by QCT including transcripts of interviews, an investigation report and various attachments to that report.

16. The interviews undertaken included an interview with PS, the former   

student of Mr McNamara who was the subject of the incident, an interview with PS’s mother and an interview with two other teachers at the school.

17. The material indicated that PS was accepted into the school in late Year 10 and had completed Years 11 and 12, graduating in 2008, just prior to the incident. PS had just turned 17 at the time of the incident.  The interviews with PS, her mother and another teacher painted a picture of a student who had come from a particularly difficult background. PS, in her interview spoke of regarding Mr McNamara as a “mate”, someone in whom she could and did confide and someone who she could trust.

18. The material indicated that shortly after school finished, Mr McNamara contacted the student about delivering to her a surf board which had been made by the PS under Mr McNamara’s supervision as part of a subject she studied.  Arrangements were made for a surfing trip to Bribie Island.

19. The material indicated that Mr McNamara picked PS up from her home and drove to the coast without any other persons present. Mr McNamara subsequently indicated that he needed to pick something up from his house.  They then travelled to his house where again there were no other persons present.  Mr McNamara suggested she might like to use the spa which she did.  He then joined her in the spa and at some point made the suggestion that she could “skinny dip” if she wished.

20. The material indicated that the student was subsequently driven home by Mr McNamara.  PS’s actions when she returned home were extreme and consistent with her having been greatly upset by the events that had occurred.  The material strongly supports the view that PS was profoundly upset by Mr McNamara’s actions. She was, in her words, “heart-broken” because she had trusted him.

21. Mr McNamara’s statement, attached to his legal representative’s submissions, acknowledges that the trip occurred, that they were alone, that he suggested the spa and that the suggestion of nude swimming was his.  His statement however indicated that he sought to immediately correct himself and apologised following the nude swimming suggestion.

Findings of Fact

22. The Tribunal is satisfied that the evidence establishes the following:

·Mr McNamara was a registered teacher at the time of the incident.

·PS had been a student of Mr McNamara until shortly before the incident.

·PS was a vulnerable student, and had a troubled background, of which Mr McNamara was aware.

·PS regarded Mr McNamara as someone who could be trusted and confided in.

·Mr McNamara and PS travelled to the coast and went back to Mr McNamara’s house at his suggestion alone.

·Mr McNamara suggested PS swim in the spa.

·Mr McNamara suggested PS may like to skinny dip in the spa.

·PS was extremely upset and as a result sought to self harm in an extreme way.

23. The Tribunal is satisfied on the material that, even on Mr McNamara’s version of the events, the suggestion by Mr McNamara of nude swimming clearly carried sexual connotations.    

Submissions of the parties

Queensland College of Teachers

24. Mr Gormley, representing the College submitted that the Tribunal’s primary consideration is with respect to what disciplinary action is required.

25. He noted that the former student involved, PS, was highly vulnerable and in a category of students who were disengaged and disenfranchised.

26. He argued that PS had succeeded in the school environment and in doing so had “established a significant relationship of trust with Mr McNamara in his capacity as her teacher”.

27. He submitted that whilst PS was a former student, the events took place shortly after the end of her schooling.

28. He noted the events included Mr McNamara’s engaging in the following conduct:

·Taking PS on a surfing trip to Bribie Island ;

·Taking PS to his house on the return trip when there was no one else there;

·Repeatedly suggesting a spa bath to PS;

·Getting into the spa with PS and suggesting PS remove her clothes.

29. Mr Gormley submitted that this conduct unequivocally carries sexual connotations.

30. In his submissions he refers to PS attempting suicide as soon as she arrived home.  Mr Gormley acknowledged that Mr McNamara cannot be held accountable for PS’s actions.  Nevertheless he submitted that the harm that flows from such actions should be considered as relevant to the seriousness of the conduct.

31. Mr Gormley submitted that this was a matter that involved a significant breach of trust.

32. He noted that it was open to the Tribunal to impose a prohibition of up to 5 years and submitted that, in any event, it should be greater than a 1 year period of prohibition proposed by the legal representative for the Respondent teacher.

33. In this regard he referred the Tribunal to the matter of Ashton[2]  where the Tribunal imposed a 2 year prohibition on re-applying for registration and also to the matter of Field[3] where a 5 year period of prohibition was applied.

[2]     QCT v Ashton [2010] QCAT 80

[3]     QCT v Field [2010] QCAT 32       

Mr McNamara

34. Mr Knott made submissions on behalf of the Respondent teacher.  He also referred to Ashton noting that the matter also involved a vulnerable student.

35. He submitted that it was not appropriate for the Tribunal to impose a greater sanction because of the student’s response to Mr McNamara’s conduct, arguing that it was the teacher’s conduct that was critical.

36. Mr Knott conceded the sexual connotation associated with the teacher’s behaviour but drew the Tribunal’s attention to the incident being a one-off occurrence.

37. Mr Knott informed the Tribunal that Mr McNamara has had 10 sessions with a psychologist, looking at how to change and to gain insight.

38. Mr McNamara told the Tribunal at the hearing that he wishes to return to teaching, preferring a specialised setting.

39. In written submissions, Mr McNamara had conceded that his behaviour was stupid and completely inappropriate.  He also conceded that it would be appropriate for the Tribunal to consider cancelling his teacher registration but believed that any prohibition from reapplying for registration or permission to teach should be limited to a period of one year.

40. No objection was raised by either party to a suggestion from the Tribunal that it may consider an order which included a requirement for the teacher to undertake some educational and/or therapeutic programs.

Application of the Law

41. While PS was no longer a student at the time of the incident, the combination of the fact that PS had only recently graduated and the degree of trust she had placed in Mr McNamara renders his behaviour unacceptable.  The fact that PS was no longer a student in one sense heightened her vulnerability, as she no longer had the protection of the boundaries that exist at a school level.

42. Mr McNamara acknowledged the seriousness of his actions and that it was open for the Tribunal to find that he is not suitable to teach.

43. The Tribunal considers that the community would undoubtedly have expected more of a teacher in his position, particularly when dealing with a vulnerable former student.  The Tribunal is satisfied that Mr McNamara has acted in a way that does not satisfy the standard of behaviour generally expected of a teacher.

44. The Tribunal finds that on the evidence before it, a ground for disciplinary action against Mr McNamara has been established.  Specifically, under S.92 (1) (h) of the Act, the Tribunal finds that Mr McNamara is not suitable to teach, within the meaning of that phrase in S.12 (3) in that his behaviour does not satisfy a standard the community would generally expect of a teacher.

45. Having established under S.158 (1) that a ground for disciplinary action exists, the Tribunal then turned its attention, as it is required to do under S.160 (2) of the Act, to determining the appropriate sanction.

The Appropriate Sanction

46. Much of the hearing focussed on what should be the appropriate sanction.  Mr Gormley for QCT submitted that the seriousness of the conduct was manifested by the substantial harm suffered by PS as a result of Mr McNamara’s conduct, and that such consequences “elevated” the seriousness of the breach of trust to make this a case of very serious conduct.

47. Mr Knott submitted however, on behalf of Mr McNamara, that while PS’s subsequent actions may be relevant in an evidentiary sense, it is the conduct of the teacher that should be the real focus for the Tribunal, not the subsequent response of PS, because the essence of the jurisdiction is protective not punitive.

48. What is clear about this jurisdiction is that it is protective in nature, not punitive.  The purpose of disciplinary proceedings[4], as has been well documented and described, is really two fold:

1) to provide the public with the protection it deserves when children are entrusted into the care and control of teachers, and
2) to provide the teaching profession with the confidence that a certain standard will be required and enforced.

[4] Clyne v New South Wales Bar Association (1960)104 CLR at 201-202

49. The Tribunal is aware that conduct of the kind that occurred in this matter can have serious consequences.  It could also, in some circumstances, have much less severe consequences, but that does not make the conduct itself any less serious.

50. The Tribunal’s view is that, while the potential for serious outcomes is certainly relevant to the issue of how serious the conduct is, it should not be the basis for determining the appropriate sanction. It must be the conduct of the teacher that the Tribunal has as its focus when determining an appropriate sanction.  If it was to be otherwise, that is, based on the actual outcomes in each matter, then sanctions could vary widely based on the same conduct. That, in the Tribunals view, would be more consistent with imposing a sanction that was punitive in nature. The Tribunal is also aware of the importance of consistency in decisions involving disciplinary matters.

51. Mr Gormley for the QCT referred the Tribunal to other decisions including QCT v Ashton.[5] In that matter the teacher’s registration was cancelled and a prohibition from reapplying for a period of  2 years was applied.  The teacher had in that case through repeated contact and gifts formed an intimate physical relationship which continued over a period of time.  The student in that case had also experienced a troubled background. QCT submitted that a period of prohibition from reapplying of at least 2 years, as in Ashton, but preferably 5 years should be applied in Mr McNamara’s case, because of the substantial harm that resulted.

[5] QCT v Ashton [2010] QCAT 80

52. Mr Knott for Mr McNamara however, submitted that the conduct here was less serious in nature than in Ashton and that a distinguishing feature of that case was the lack of insight exhibited by the teacher, whereas Mr McNamara had shown remorse and acknowledged the stupidity of his actions.

53. Mr Gormley for QCT also referred the Tribunal to QCT v Field [6] where a 5 year prohibition on reapplying for registration was imposed on the teacher in addition to cancellation of registration.  However, that matter involved a continuing course of conduct which included a series of communications with a student with explicit sexual references, and a lack of insight evidenced by the teacher’s continuing the conduct even after receiving a warning.  The Tribunal considered a 5 year period of prohibition appropriate in that matter because of the serious nature of the interactions with the student as well as the demonstrated lack of remorse and insight.

[6] QCT v Field OCR [2010] QCAT 32

54. The Tribunal has, in this matter, taken into account that this was a once only incident, as opposed to a “grooming” of the student which occurred in both Ashton and Field.  On the other hand this matter clearly involved a significant breach of trust by Mr McNamara, exacerbated by the vulnerability of PS which was well known to Mr McNamara.   A breach of trust in circumstances such as those that exist in this matter can, as has been so clearly exemplified by the actions of PS following the incident, have far reaching effects on the student.

55. While Mr McNamara has committed a serious breach of trust, he has exhibited remorse and some insight into the seriousness of the breach.  The Tribunal considers that, in view of the seriousness of the breach, in addition to cancellation of Mr McNamara’s registration, a period of prohibition from reapplying for registration of 2 years should be applied consistent with the period determined to be appropriate in Ashton.

56. However, in view of the nature of the serious breach of trust in this matter, the Tribunal considers it is also appropriate that a notation be entered in the register, so that if Mr McNamara seeks to reapply for registration as a teacher in the future, he must attend counselling and therapy and obtain a report indicating that he has gained the necessary insight or knowledge into what is required of a teacher.  Should Mr McNamara genuinely believe he has something to offer as a teacher and wish to return to the profession in the future, this requirement will enable him to build on and give direction to the counselling and therapy he has already commenced.