Queensland College of Teachers v Teacher VK
[2014] QCAT 268
| CITATION: | Queensland College of Teachers v Teacher VK [2014] QCAT 268 |
| PARTIES: | Queensland College of Teachers (Applicant) |
| v | |
| Teacher VK (Respondent) |
| APPLICATION NUMBER: | OCR265-13 |
| MATTER TYPE: | Occupational regulation matters |
| HEARING DATE: | 28 May 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member O’Callaghan Member Kanowski Member Lindgren |
| DELIVERED ON: | 11 June 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The following matters are prohibited from publication under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld): a. the name of and other identifying information about the teacher who is the subject of this disciplinary matter; b. the names of and other identifying information about the students and former students referred to in this disciplinary matter; and c. the names of the schools referred to in this disciplinary matter. 2. The teacher’s application for a private hearing is refused. 3. The teacher’s registration is cancelled, and she is prohibited from applying for registration or permission to teach until 21 November 2018. 4. The following notation is to be entered into the register of approved teachers: should, after 20 November 2018, the teacher reapply for registration as a teacher, her application must include: a. a detailed psychological report which includes: i. an assessment of the teacher’s appreciation of the following: 1. differentiating between personal and professional relationships; 2. the legal obligations of teachers and tutors; 3. development and maintenance of professional standards when working with young people, and actively determining and implementing professional boundaries with individual students; 4. risk assessment and early issue identification of potentially problematic situations and venues as well as initiating realistic solutions for avoiding the risk of harm to students; 5. the extent and nature of the student, colleague, parental and community trust inherently invested in a teacher or tutor; 6. personal and social behaviour that would compromise the professional standing of a teacher and the profession of teaching; 7. understanding the effect of inappropriate relationships with students; 8. the trust and power granted to a teacher; 9. understanding of and importance of full adherence to the Queensland College of Teachers’ Code of Ethics. ii. the status of the teacher’s current mental health; iii. details, including outcomes of, any treatment programs and/or therapy undertaken by the teacher with respect to: 1. self-management in relation to maintenance of psychological gains and staying mentally well; 2. past victimisation; b. an indication by the psychologist about whether the psychologist is satisfied that the teacher has adequately understood and addressed the above points, and confirmation of the psychologist being provided with copies of: i. these orders and reasons of QCAT; ii. the statement of agreed matters; and iii. the psychological report of Dr Ursula Oertel dated 23 April 2014. |
| CATCHWORDS: | DISCIPLINARY PROCEEDINGS – TEACHERS – not suitable to teach – where teacher was over-familiar with students – where teacher had sex with former students Education (Queensland College of Teachers) Act 2005 (Qld), s 92(1)(h) |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Queensland College of Teachers represented by Mr J Gormley, Principal Legal Officer with the College |
| RESPONDENT: | The teacher represented by Mr A Knott, Special Counsel of TressCox Lawyers |
REASONS FOR DECISION
Introduction
This is a disciplinary proceeding against a female high school teacher, brought by the Queensland College of Teachers. The parties agree that the teacher is not suitable to teach because of conduct she engaged in between April 2010 and December 2011. The conduct included socialising with current students, forming a close friendship with a female student, and having sex with seven male former students. At the time the teacher was in her late thirties. She had been registered as a teacher since late 2007, and she had been working as a teacher since the start of 2008.
The teacher’s registration has been suspended since 21 November 2013.
QCAT is a disciplinary body under the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Education Act’).[1]
[1]Chapter 6 Part 2.
We will firstly give reasons for some procedural decisions. The substantive issues that we must then address are whether a ground exists for disciplinary action, and if so, what disciplinary action should be taken.
Procedural matters
We have made a non-publication order under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). In respect of the students and former students, and the school/s they attended, it is clearly in the interests of justice that young people caught up in a disciplinary proceeding against a teacher not have their identities disclosed beyond what is necessary for the investigation and disciplinary process. In respect of the teacher’s identity, the order is made not for the sake of the teacher herself but for the protection of her children. They are school-aged. If the teacher’s identity were made public, it is likely that the children would be teased, and perhaps shunned and bullied. A non-publication order is necessary to protect their mental health.
We have refused the teacher’s application for a closed hearing. The general rule is that a hearing is to be held in public: s 90(1) of the QCAT Act. QCAT can direct that a hearing be held in private in some situations, such as where it is necessary to avoid endangering the mental health of a person: s 90(2). We consider that the interests of the students, former students, and the teacher’s children are adequately protected by the non-publication order, and so it was not necessary to hold the hearing in private.
Does a ground exist for disciplinary action?
The following interactions, between the teacher and current or former students of the school at which she taught, are undisputed, and we find that they happened:
· in about April 2010, the teacher engaged in conversations of a personal nature with a female year 11 student (student A), including disclosures by the teacher about her marriage breakdown;
· in about October 2010, the teacher and student A began communicating by text messages;
· in December 2010 or January 2011, the teacher and student A began communicating by Facebook;
· in about December 2010, the teacher met with student A and another female student (student B) who was also in year 11 in 2010, at a tourist attraction;
· on an occasion in early 2011, student A visited the teacher at the teacher’s home;
· in March 2011 student A and the teacher hugged at school (student A having initiated the hug);
· in 2010 and 2011 the teacher referred to students A and B as her children, in the manner of a running joke;
· in May 2011 student A sent the teacher a Mother’s Day message that referred to the teacher as a ‘motherly, sisterly and best friend like figure’ for the student;
· on a number of occasions between January and December 2011, the teacher permitted a number of female year 12 students – including students A and B, and three others including student C who will be mentioned again later – to visit her home in a social capacity;
· in December 2010, the teacher hosted a party at her home which was attended by at least four male former students, who had finished year 12 in November 2010;
· the former students included former students D, F and J who will be mentioned again below;
· at the party, some of the former students consumed alcohol and some stayed overnight;
· in about November 2010, former student D added the teacher as a friend on Facebook, and they communicated by Facebook and text messages between then and the end of January 2011;
· on two occasions in January and February 2011, former student D stayed overnight at the teacher’s home;
· on or about 21 February 2011, the teacher and former student D had sexual intercourse at the teacher’s home;
· in about January 2011, the teacher and another young man who had finished year 12 in 2010, former student E, began communicating on Facebook;
· in March or April 2011, the teacher and former student E met for lunch at a shopping centre on one occasion, and on another occasion they went to a movie;
· on a date between 25 May and 30 June 2011, former student E stayed overnight at the teacher’s home, and they kissed on her bed;
· on more than one occasion in June to July 2011, the teacher and former student E had sexual intercourse at the teacher’s home;
· on 27 September 2011 the teacher and former student F had sexual intercourse at the teacher’s home;
· on 17 October 2011 the teacher had sexual intercourse with former student F and another young man who had been a year 11 student at the school in 2009, former student G, in a threesome at the teacher’s home;
· on a date between 17 October 2011 and 25 December 2011 the teacher had sexual intercourse with former student F and another young man who had finished year 12 in 2010, former student H, in a threesome at the teacher’s home;
· the 2011 year 12 students finished school on 18 November 2011;
· on or about 21 November 2011, the teacher invited student A, who had just finished year 12, to a social gathering at the teacher’s home, and informed student A that alcohol was available for purchase;
· the alcohol was available from the teacher’s flatmate;
· on or about either 22 November 2011, at least six female former students who had just finished year 12 attended a social gathering at the teacher’s home, at which alcohol was consumed;
· these six young women were the ones who had visited the teacher’s home on earlier occasions during 2011 in a social capacity;
· also present was the younger sister – a year 10 student in 2011 – of one of the young women;
· in late November 2011 the teacher went to an end-of-school celebration with some students who had just graduated from the school;
· on that occasion, the teacher kissed a recently graduated male student (former student I) on the cheek;
· on an occasion in December 2011, the teacher has sexual intercourse with two young men – former students J and K – who had finished year 12 in 2010, in a threesome at the teacher’s home;
· on about 20 December 2011, student C (by that time a former student) consumed alcohol at the teacher’s residence while celebrating a birthday.
The parties agree, as do we, that the conduct described above was inappropriate.
There are some surrounding circumstances that should be mentioned:
· Student A viewed the teacher as someone she could confide in, and who cared about her.
· While all of the students and former students had attended the school at which the teacher taught, she had not taught all of them. She had taught several of them at some point, and assisted some in sporting and leadership endeavours. However, it is not suggested that she treated those students at school differently from other students, or that she groomed students with a view to future sexual relations.
· The former students with whom the teacher had sex were all over the age of consent, so the conduct was not criminal.
· Clinical psychologist Dr Ursula Oertel interviewed the teacher in April 2014, and prepared a report for the QCAT proceeding. Dr Oertel notes that the conduct in question happened in the aftermath of the breakdown of the teacher’s marriage, when the teacher was depressed and needy. Dr Oertel believes that the risk of the teacher engaging in similar conduct in the future is low, especially if she participates in therapy.
· The teacher taught at a different school from the start of 2012. She told Dr Oertel that when she was approached by students who wanted to discuss personal problems at the new school, she referred them on, for example to the guidance officer. Further, when a particular female student became over-friendly, the teacher asked the year level leader to talk with the student about boundaries and professional relationships.
It is important to bear in mind that teaching is a profession. The community expects high standards of conduct from teachers. The Education Act was enacted with the aims of upholding the standards of the profession, maintaining public confidence in the profession, and protecting the public by ensuring education in schools is provided in a professional and competent way by approved teachers: see s 3(1).
A teacher must be ‘suitable to teach’. In assessing whether a person is suitable to teach, it is relevant to consider whether they are suitable to work in a child-related field; whether they satisfy a standard of behaviour generally expected of a teacher; and whether they behave in a disgraceful or improper way: s 12(1)(b) and (3) of the Education Act.
As far as interaction with current students is concerned, teachers are expected to be empathic and to build rapport with students. However, it is important that they maintain professional boundaries with students, who of course are young and impressionable. Forming a friendship with a student runs a number of risks such as favouritism, emotional inter-dependence, and disappointed expectations on the part of the student. Socialising with teenage students, as if the teacher were a member of the teenage peer group, undermines the status and authority of the teacher. Almost inevitably, other students will learn that the teacher is socialising with some of their peers. They may feel excluded and less favoured.
In the present case, the teacher formed a close friendship with student A. She confided in the student, and allowed the student to confide in her. In allowing a close and ostensibly equal friendship to develop, the teacher clearly overstepped the appropriate professional boundary. Similarly, the teacher failed to keep an appropriate professional distance from the students who used her home as a social gathering place. The teacher acted as if she was part of the peer group.
Social interaction by a teacher with a former student can also affect a teacher’s suitability to teach. When a teacher acts in a scandalous manner with former students, this will almost inevitably become known to current students as well. Such behaviour is unsuitable role-modelling for current students. In the present case, the teacher made serious errors of judgment when she invited recently-graduated students to come to her home to party, and drink alcohol if they wished, and when she participated in end-of-school celebrations as if she were a school-leaver herself. We note that a photo of the teacher kissing former student I on the cheek at the end-of-school celebrations was posted by a school-leaver on Facebook, and this quickly came to the attention of the peer group.
A sexual relationship or encounter with a former student can also reflect adversely on a teacher’s suitability to teach, depending on the timing and circumstances. There are no strict rules about when a relationship or encounter is inappropriate, and so each case must be examined on its merits. Many cases that have become before QCAT have involved teachers taking advantage of the power imbalance that exists between teacher and student, and which takes time to dissipate, by entering into a relationship soon after the young persons’ graduation.
In the present case, the former students who had sex with the teacher were interviewed by the College. They did not portray themselves as having been taken advantage of by the teacher. Former student E, for example, described himself, rather than the teacher, as the initiator. Nonetheless, there is no doubt some force in the College’s submission that the conduct with respect to former students D and E ‘involve the most clear failures by the [teacher] to allow sufficient time for the former students to achieve an equal footing …’. We note that former student D saw the encounter as a mistake which he regrets.
The general pattern with the later sexual encounters was that former students, who had heard of one or more of the earlier encounters, would contact the teacher at the end of a night out to request sex, and she would agree.
An obvious problem with this type of conduct is that it will become known around the school community and result in a lack of respect from many students, parents and colleagues. Some students may regard the teacher as potentially available sexually, either immediately or after graduation. Clearly, this undermines the discipline and authority required within a school.
Overall, the teacher, in her various dealings with current and former students as outlined above, displayed a grave lack of judgment in a number of areas. She was clearly not suitable to teach at the time of the conduct in question. We must consider, though, whether the teacher is presently not suitable to teach. Although there are indications in Dr Oertel’s report that the teacher has learned from her mistakes, at least in the school setting, the teacher concedes that she remains not suitable to teach. In light of the extent, gravity and relative recency of the inappropriate conduct, we find that the teacher is not suitable to teach.
A ground for disciplinary action therefore exists: s 92(1)(h) of the Education Act.
What disciplinary action should be taken?
Section 160 of the Education Act provides for the types of disciplinary action that can be taken.
Both parties agree, as do we, that cancellation of the teacher’s registration is warranted, together with a prohibition upon the teacher reapplying for registration for a period, and a requirement for a psychological report to accompany any application for re-registration. We have substantially adopted the parties’ suggested wording of the requirements relating to the psychological report.
The parties disagree over the period that should elapse before the teacher can reapply. The College submits it should be a six year period from the date of suspension: until 21 November 2019. The teacher submits it should be only five years: until 21 November 2018.
The College notes that the teacher completed online Code of Conduct training in 2008 or 2009. Between March and November 2011, she was subject to a disciplinary investigation by her employer, the Department of Education, Training and Employment. This related to excessive closeness to student A, and social relationships with students immediately after they finished school, including the consumption of alcohol at the teacher’s home. The teacher was interviewed on 3 June 2011. On 25 November 2011 the Department wrote to the teacher reprimanding her and requiring her to attend training.
The conduct we are dealing with includes the conduct which was the subject of that earlier investigation.
The interview in June 2011 should have served as a salutary warning to the teacher about the need to maintain professional boundaries, but she continued to cross appropriate boundaries to an even greater degree. The College rightly points to this as a concerning feature. It also points to her ‘substantial, protracted and persistent failures to maintain professional boundaries with numerous current students’, the inappropriate interactions with numerous former students, and the mature age of the teacher.
The College submits that the present case is more serious than a number of earlier cases involving sexual conduct, where prohibition periods of between 19 months and five years were imposed. The College also points out that most of the earlier cases were decided when there was a five year cap on the prohibition period, which no longer applies.
In our view, it is not possible to precisely rank cases in terms of severity as each case involves a different constellation of facts. Some of the earlier cases involved improper behaviour that is absent from the present case, such as romantic or sexual conduct with a student at school, prior to commencing a post-school sexual relationship, or the grooming of a student. On the other hand, none of those cases involved as many students as the present case. Most involved just one student.
In relation to the entirety of the conduct, the College submits that it ‘involves serious, multi-faceted, concurrent and protracted departures from the standards expected of teachers to such a high degree that considerations of denunciation and deterrence are strongly enlivened’.
We agree that these are relevant considerations, but in our view a five year prohibition adequately conveys the community’s disapproval to this teacher and to teachers generally. It is, on any view, a long period of absence from a profession. It allows a long time for the teacher to mature and to reflect on the errors she made. It is also important to bear in mind that there is no automatic re-registration. The teacher will only be re-registered if she applies and the College is satisfied that she is suitable to teach. Should she apply, she will need to provide a detailed psychological report. This will help College determine whether she has become suitable to teach.
Conclusion
The appropriate substantive orders are that the teacher’s registration be cancelled; that she be prohibited from applying to re-register until five years has passed since her registration was suspended; and that any application for registration be accompanied by a detailed psychological report. These orders convey disapproval of the teacher’s conduct, adequately protect students from further harm, and advance the objects of the Education Act.
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