Queensland College of Teachers v FSR
[2017] QCAT 38
•6 February 2017
CITATION: | Queensland College of Teachers v FSR [2017] QCAT 38 |
PARTIES: | Queensland College of Teachers |
| v | |
| FSR (Respondent) | |
APPLICATION NUMBER: | OCR193-14 |
| MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 7 December 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Rogers, Presiding Member |
DELIVERED ON: | 6 February 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. FSR is prohibited from applying for registration or permission to teach for 12 months from the date of this Order; 2. The Register is to be endorsed with a notation that any application for reregistration by FSR must be accompanied by a psychiatrist’s report, dated within three months of the application, which provides: i. the diagnosis and any treatment; 3. Documents or information referred to in the disciplinary matter that would enable the identification of FSR are prohibited from publication under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). 4. The names, addresses and schools of the children referred to in the disciplinary matter are prohibited from publication under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
CATCHWORDS: | DISCIPLINARY PROCEEDINGS – TEACHERS – where teacher was not convicted of indictable offences – where medical conditions affected behaviour - where mitigating circumstances – whether grounds for disciplinary action established – appropriate penalty Education (Queensland College of Teachers) Act 2005 (Qld) s 92(1)(h) |
APPEARANCES: | |
APPLICANT: | Queensland College of Teachers |
RESPONDENT: | FSR |
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES: | |
APPLICANT: | represented by Mr Braban, Executive Manager, Legal, Queensland College of Teachers |
RESPONDENT: | represented by TressCox Lawyers |
REASONS FOR DECISION
Background
FSR commenced his study to be a teacher when he was 21 years of age. After completing his degree he was employed by Education Queensland starting work as a teacher in January 1996. He has stated he loved teaching and was excellent at his work. He is proud of an award he received from the Governor General. He remained teaching until his employment was suspended in November 2013.
FSR lives by himself. He has good friends who are supportive and very important to him. He has enjoyed an active lifestyle engaging in activities such as ‘mountain biking, shooting and hunting.’[1]
[1]Dr Varghese, report dated 23 July 2015.
Circumstances leading to suspension and charges
By 2013 FSR was working as Head of Special Education in a state school, a position he had held since 2011. Referred to in the material as “The Hive” the program conducted by the unit catered for children with special needs including Autistic Spectrum Disorder and/or other disabilities.
From the evidence it appears complaints were made to the Principal about FSR’s professional behaviour in late 2011. Those complaints were dealt with by raising the issues generally with staff. In early 2013 difficulties in FSR’s workplace were again brought to the attention of the Principal and those issue were again dealt with in a general manner.
By July 2013 FSR’s interaction with a Teacher’s Aide resulted in him receiving a letter from the Principal reminding him of his obligations to conduct himself in line with the Code of Conduct. Following this incident members of staff decided they needed to do something collectively to address what they saw as FSR’s worsening behaviour. They felt they needed to do this as a group so no one teacher could be victimised.
About 16 August 2013 a group of nine Teachers and Teachers Aides signed a 14 page complaint about his conduct during 2012 and 2013. The complaint was forwarded to the regional office and DET investigators undertook an investigation into the allegations against FSR:
The substance of the complaints were that FSR:
a) Acted in a physically inappropriate manner towards a student or students,
b) Engaged in an inappropriate and unprofessional manner towards a student or students, and
c) Communicated or otherwise acted in an inappropriate manner towards other employees.
On 21 November 2013, DET suspended his employment. When handed the letter FSR made threats to self harm and left the school.
The threats raised concerns about FSR’s well being and the police were notified. They went to his house to conduct a welfare check and found him leaving his house with a loaded firearm in his car. FSR told them there were about 25 other weapons in his house. The police took him to the Logan hospital where he was admitted for the night.
Two days later the police returned to the house and conducted a search.
They found a loaded rifle in the lounge room and thousands of rounds of live ammunition. They seized 190kg of ammunition, 10.1 kg of propellant powder and 51 firearm magazines.
As a result of this search FSR was charged and convicted of numerous offences including carrying weapon in a public place whilst loaded, failing to properly secure stored weapons and failing to correctly store explosives. None of the offences is an indictable offence. The charges were dealt with in the Magistrates Court on 6 March 2014. FSR had no conviction recorded and he was given a 12 month period of probation. A subsequent appeal was not successful.
During 2014 FSR was asked to participate in an investigation following his suspension but was certified unfit to participate by his treating psychiatrist, Dr Unwin.
The College was notified of FSR’s offences and suspension from employment on 19 August 2014. It suspended his teacher’s registration on the basis of a belief he posed an imminent risk of harm to children under section 48 of the Act and filed the referral in this Tribunal.
The referral was based on two broad grounds. The first relies on complaints from staff about FSR’s behaviour, namely bullying and intimidation of staff and also some complaints about his interactions with students. The second ground relies on the incidents resulting in the criminal charges which were precipitated by his suspension.
On 25 March 2015 FSR was retired from DET on medical grounds based on an independent assessment conducted by Dr Tom Bell.
The referral
On 26 August 2014, relying on disciplinary information received, the QCT Director determined FSR posed an imminent risk of harm to children and issued a Notice of Suspension of his registration as a teacher.
On 2 September 2014 the College brought a referral to QCAT, the disciplinary body under the Education (Queensland College of Teachers) Act 2005 (Qld), on the following grounds:
a) The relevant teacher is not suitable to teach. (Section 92(1)(h) )
b) The relevant teacher has been convicted of an indictable offence that is not a serious offence. (Section 92(1)(b) )
The College subsequently amended the referral to remove the ground of a conviction of an indictable offence on the basis that the conviction related to offences that are not indictable.[2]
[2]Submission of Queensland College of Teachers dated 16 February 2016 para 5.
It is the responsibility of this Tribunal to determine if the ground for disciplinary action has been established and, if so, to decide what disciplinary action should be taken.
It is accepted that FSR is a ‘relevant teacher’ as defined by the Act.
It is submitted by the College that the ground for disciplinary action has been established.
FSR agrees ‘the circumstances of the criminal charges made against him meet the threshold that the test that he is ‘unsuitable to teach’ applies under s 92(2)’ of the Act, however submits the assessment of his suitability to teach must be made at the time of the hearing.[3]
[3]Final Submission of Respondent dated 31 October 2016 para 3.
We are satisfied the facts and circumstances which are admitted and established are sufficient to support the remaining ground relied upon under section 92(1)(h). This section requires ‘the person behaves in a way, whether connected with the teaching profession or otherwise, that does not satisfy the standard of behaviour generally expected of a teacher.’
The issue that remains for determination relates to penalty.
What is the appropriate penalty?
The disciplinary actions that may be taken are set out in the Act[4] and include the power to issue a warning or reprimand, accept an undertaking from the teacher or to impose conditions on the teacher’s registration.
[4]Ibid s 160(2).
The College seeks an Order that prohibits FSR from applying for reregistration for a period of two years and requires a psychiatrist’s report be submitted with the application for reregistration. FSR submits that his behaviour can be explained by his medical conditions at the time and his most recent medical reports support a conclusion that he is suitable to teach at the time of the hearing.
The College has identified the following factors to consider in this case. It submits they demonstrate behaviours by FSR that fall well below the standard expected of teachers:
a) Driving with a loaded gun and keeping a gun loaded in the living room.
b) The manner in which the weapons, ammunition, magazines and propellant powder were stored was irresponsible and dangerous.
c) The incidents in dealing with students with special needs involved yelling at the students, yelling at teachers in front of students, swearing, pushing a student causing him to strike his head on the desk and offering to act as an Ogre to yell and scare the students.
d) The incidents relating to interactions with staff included taking over managements of students without consulting their teacher, yelling and being rude to teachers, failing to follow the Acting Principal’s instructions about interactions with teachers, stating to contractual staff he could influence their future employment offers, refusing to listen, micromanaging teachers’ aides, exercising strict control over resources and being uncooperative.
e) The evidence shows patterns of behaviour that amount to bullying and intimidation which are directly relevant to his suitability to teach.
The College relies on the health assessment by Dr Varghese dated 24 March 2015 conducted as part of these proceedings. It notes:
a) The workplace difficulties experienced by FSR were caused by Major Depression which also led to his suicidal reaction to his suspension from DET.
b) Dr Varghese also diagnosed significant issues surrounding attachment, significant personal vulnerability, obsessional traits and the possibility of narcissistic traits.
c) At the time of the assessment FSR’s Major Depression was in remission, had been for some time and was expected to continue in remission provided he continued with antidepressant medication and psychiatric treatment.
d) The risk of dangerous conduct by FSR within a school environment is minimal, the risk of harm to children is minimal and he ought to be able to deal with stressors experienced in performing the duties of a teacher.
e) The risk of harm to self or others could occur if there was a recurrence of a Major Depression, the recurrence could be prevented by pharmacological prophylaxis and FSR needs to remain in psychiatric treatment until his treating psychiatrist deems it appropriate to gradually cease anti- depressants.
The College comments that FSR’s statement to Dr Bell in March 2014 that he doesn’t think he has an adjustment disorder and further his suggestion to Dr Varghese that his emotional symptoms were a result of ‘androgen deficiency’ as against any psychiatric illness, suggests a lack of appreciation of the seriousness of mental health concerns.
FSR’s accepts his medical conditions were such that he was not ‘suitable to teach’ at the time his employment with DET was suspended in 2013. However it is his submission that recent medical evidence establishes there is no longer an impediment to his return to teaching and he is no longer a risk to children. He relies on the reports of Dr Varghese from July 2015 and Ms Meakin from October 2016.
These reports must be considered in the context of all the medical evidence relating to FSR’s conditions.
FSR says he has been attending his General Practitioner, Dr Rosevear for about 10 years. He says he has not felt well since mid 2012. Around that time he had an operation to remove a serious tumour on his hand, which was very painful and affected his ability to participate in his interests and activities. He first raised the relevant emotional issues, which ultimately led to his suspension, with Dr Rosevear in the middle of 2012. FSR told Dr Varghese he had previously seen a psychiatrist in around 2008 for a couple of months for ‘anxiety’ but this year is not mentioned by Dr Rosevear.
The report of Dr Rosevear dated 30 December 2014 indicates FSR had been depressed in June 2004 following interpersonal stress at school. He said ‘after the issues settled, he improved but became depressed again in 2013. Through these situations he had counselling here from myself and also our Social Worker, Jane Meakin’. He was diagnosed with an ‘Androgen Deficiency’ in September 2013. He was given testosterone replacement medication for this condition. He was also treated for depression and anxiety. He states that in retrospect, following Dr Unwin’s diagnosis of Autism Spectrum Disorder, it can be seen this condition had been there all along.
‘It manifests in difficulty communicating, difficulty reading other people in terms emotions, intentions and social interaction skills. FSR loves to help and please others but often feels misunderstood and alienated from other people’
Following the emergency admission by the police to Logan hospital on 21 November 2013 FSR was referred to Dr Unwin, psychiatrist, who admitted him to Belmont Psychiatric Hospital on 24 November 2013. Dr Unwin diagnosed him with ‘Autistic Spectral Disorder’ (sic).[5] He remained in Belmont for some weeks and was readmitted after a short break.
[5]See report of Dr Unwin dated 17 November 2014.
FSR was referred to Dr Varghese by order of this Tribunal for the purposes of these proceedings. It is the view of Dr Varghese that at the time of his suspension FSR was suffering from “Major Depression with subsequent suicidality” and ‘it is likely that this episode had been developing insidiously since mid 2012.’
In his Response, FSR provides details of the symptoms of his conditions. He refers to the treatment he underwent with Dr Unwin and strategies such as cognitive behaviour therapy. He also found developing “Theory of Mind” to be particularly helpful. He states the medication regime helps him to be more relaxed, happier and a lot less anxious. He states he is involved in adult support organisations for adults with autism. He is doing literature research on autism and can apply the strategies he is learning to help overcome social and communication barriers.
He states Dr Unwin died in October 2015 and he is now under the medical care of Dr Steinberg.
FSR has also provided a report from Jane Meakin, Clinical Social Worker and Gestalt Therapist, dated 11 October 2016. Ms Meakin states FSR was referred to her in 2010 pursuant to a mental health plan and at that time he was on leave from his position with Education Queensland to attend to his mental health needs. She saw him on four occasions in 2011. He was quite fragile emotionally and said he felt helpless. She saw him periodically after that. She recently reengaged with him this year (2016) after a period of twelve months of no contact. She states he is embracing change in a positive way and that any negative outcomes regarding FSR’s ability to successfully teach children would be unlikely.
Consideration and decision
The incidents investigated by DET involved 20 allegations or complaints. We have been provided with the allegations, witness statements and records of interviews with the investigating officers. We also have the sentencing remarks from the Magistrates Court and a decision by WorkCover Queensland dated 11 September 2014 rejecting an application by FSR lodged 3 March 2014 for compensation in respect of a psychological injury as a result of ‘workplace bullying’.
FSR has provided a detailed response to the allegations. He denies some of the incidents occurred at all. With others he relates a different version of the incident. In still other cases he accepts the allegation and relies on his medical conditions to explain his behaviour. His response states:
‘The Respondent does not admit each and every particular in the disciplinary referral. Where he offers an alternative perspective or additional evidence, that evidence is offered in mitigation and is not an attempt to argue that he is “suitable to teach.” ‘[6]
[6]Response to Disciplinary Referral filed 1 March 2016 para 3.
Having considered that an investigation took place into the allegations leading to his suspension, FSR’s admission that he was not ‘suitable to teach’ at the time of his suspension and the uncontroverted evidence of the events which followed his suspension, we have formed the view that it is not necessary to explore the specific allegations in this decision. We are satisfied that FSR’s behaviour, taken as a whole, did not meet the standards expected of a member of his profession.
From the medical evidence available, at the time of the circumstances leading to the disciplinary proceedings we are satisfied FSR was experiencing an episode of Major Depression, receiving treatment for Androgen Deficiency, and was experiencing the effects of the condition subsequently diagnosed as Autistic Spectrum Disorder without the knowledge and strategies to deal with that condition.’
FSR states he was suffering stress, irritability, lethargy and low energy. His recently developed understanding of his Autistic Spectrum Disorder explain his difficulties in communicating and managing conflict in an appropriate manner. We are satisfied that a combination of his medical conditions explains his behaviour at that time.
The question remains whether FSR is now fit to resume his duties or whether a further period of time, and further evidence, is necessary before we can be satisfied that FSR can re-enter the teaching profession without posing a risk to children and members of staff.
We are not satisfied the evidence demonstrates FSR is fit to return to his duties and will now explain our reasons.
The reports describing FSR’s medical history are not consistent and we have been unable to develop a picture of the progress of his conditions. It is understandable that after a long period of time and a significant illness FSR’s recollections of dates may be flawed and we have preferred the evidence of the treating professionals who relied on their notes when preparing their reports to the recollections of FSR. Unfortunately relying on the written reports does not give clarity. Dr Rosevear refers to an illness in 2004 and then next comments on his condition in 2013. Ms Meakin states she treated him under a mental health plan in 2010 and while she comments she has seen him on other occasions she has not given dates of those consultations. FSR told Dr Varghese he experienced difficulties in 2008. The report of Dr Unwin does not give a clear picture of the mental health history taken to support his diagnosis.
However it is clear from the reports and his employment history that there have been previous instances when FSR has needed support with mental health issues. It is of concern to us that even after this history and knowing he was taking medication for an Androgen Deficiency, with possible side effects, FSR did not appear to be aware of the extent of his illness or have strategies in place to recognise and address his worsening condition. There is not sufficient medical evidence for us to be satisfied that he has now developed the necessary insight to avoid this situation should he be placed in a stressful situation again.
Dr Varghese has articulated conditions he considers necessary to support FSR’s continued remission. These include medication and continued treatment by a psychiatrist until he is considered well enough to discontinue his medication. We are not satisfied those conditions have been met.
There is no assessment from FSR’s current treating psychiatrist about his condition. There is no evidence about his current medication regime other than his statement that he finds the medication helpful. We are not aware if his psychiatrist is satisfied that he does not need to continue to have regular consultations. In particular there is no evidence that FSR has developed an awareness of the triggers that could exacerbate his condition or strategies for early intervention.
The report from Ms Meakin, who appears to have seen him more recently, does not have details of the dates or regularity of appointments, the treatment she has offered, the strategies FSR has developed or evidence which demonstrates his heightened awareness and ability to avoid or minimise the effects of a relapse of his condition. It does not give examples of any instances where he has successfully managed conflict. While she states it is highly unlikely he poses an ongoing threat she has not explained the basis for that opinion. We have given little weight to the report of Ms Meakin.
We share the concern expressed by the College that FSR appeared to downplay his diagnosis of an adjustment disorder (as it was then) when talking to Dr Bell and explained his behaviour by reference to his Androgen Deficiency condition. This is consistent with statements he made to Dr Varghese. Failing to acknowledge the seriousness of his mental health issues is a barrier to the ongoing vigilance needed to maintain good mental health.
There is no current evidence of FSR’s present living arrangements or the support network that he has in place should he begin to experience difficulties. We accept he appears to have a long relationship with Dr Rosevear, but family and friends are also important.
FSR has not provided evidence from a professional of the specific techniques he is using to manage his condition or confirmation he can apply those techniques when under stress. He refers to the “Theory of Mind” he developed with Dr Unwin but does not explain how that works in practice. He also refers to the useful techniques he has identified using the internet site relating to his Autism Spectrum Disorder condition but again there is no independent evidence that he has properly understood or mastered these techniques.
We are satisfied the evidence is not sufficient to support FSR’s submission that he is in fact fit to return to teaching.
We have considered the submissions of the College relating to penalty and note this application has been before the Tribunal for a lengthy period of time. A year has passed since the submission was made that a further period of two years suspensions would be appropriate. We have given consideration to the conditions we have imposed and it is clear a further period of time will be necessary for those conditions to be met.
We have decided to impose a period of a further twelve months before FSR can reapply to be registered as a teacher and imposed conditions on that application.
Should the Tribunal order non-publication?
Previous non-publication orders have been made in this matter. The College submitted it is appropriate to continue an order to protect the identity of children. The provisions of section 66 of the QCAT Act make it clear that a non-publication should not be made unless it is considered necessary within the guidance provided by section 66(2). The history shows FSR acted in an unsafe manner when suspended by DET. For reasons already discussed we are not satisfied the medical evidence allows us to form a view about the risk to his mental health at this time. We have therefore decided that publication could endanger his mental health or endanger the safety of others. For this reason we have decided to make a non-publication order.
The orders will be as follows.
1. FSR is prohibited from applying for registration or permission to teach for 12 months from the date of this Order;
2. The Register is to be endorsed with a notation that any application for reregistration by FSR must be accompanied by a psychiatrist’s report, dated within three months of the application, which provides:
(a) An assessment of whether he has any mental illness, condition or disorder, including
i. the diagnosis and any treatment;
ii. his compliance with any treatment;
iii. the significance, if any, of any mental illness, condition or disorder, in relation to his suitability to teach;
iv. an assessment of the level of ‘risk of harm to children’ presented by him, including an assessment of that risk taking into account exposure to relevant stressors likely to be experienced when performing the duties of a teacher in a school or similar environment;
(b) A history of any diagnosis, treatment and compliance with treatment, with a particular focus on the period since the assessment of Dr Varghese in March 2015;
(c) Consideration of any other matter arising from the history, diagnosis or treatment, which is relevant to his suitability to teach or suitability to work in a child-related field;
(d) Confirmation that the psychiatrist has been provided with a copy of ;
i. this disciplinary decision and statement of reasons for the decision;
ii. the report from Dr Varghese dated 23 July 2015
iii. the report from Dr Tom Bell dated 25 November 2014, and
iv. the report from Dr Alston Unwin dated 17 November 2014
3. Documents or information referred to in the disciplinary matter that would enable the identification of FSR are prohibited from publication under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
4. The names, addresses and schools of the children referred to in the disciplinary matter are prohibited from publication under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)
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