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- Unreported Judgment
WAJ v Chief Executive Officer, Public Safety Business Agency  QCAT 359
Chief Executive Officer, Public Safety Business Agency
6 May 2016
1 September 2016
REVIEW JURISDICTION – BLUE CARD –no conviction for serious or disqualifying offence, charge of dangerous operation of a vehicle and adversely affected by an intoxicating substance, existence of exceptional case
APPEARANCES and REPRESENTATION (if any):
WAJ, applicant, represented by Mr Christopher Lumme of Boe Williams Anderson Pty Ltd, Solicitors
Chief Executive Officer, Public Safety Business Agency, respondent, represented by Ms Paula Hughes
REASONS FOR DECISION
What is the background to this application?
- On 28 May 2015 WAJ (the applicant) applied to the Public Safety Business Agency (PSBA) for the issue of a Blue card. On 23 October 2015 the Deputy Chief Executive Officer, PSBA, issued a negative notice to the applicant.
- On 20 November 2015 she applied to the Queensland Civil and Administrative Tribunal (QCAT) seeking a review of that decision.
- The applicant claimed that the decision-maker took into account irrelevant information, failed to obtain and take into account relevant information, misdirected himself on questions of law, and misdirected himself on inferences that could be drawn from the information provided.
- She sought that the original decision be set aside and that a positive notice and Blue card be issued to her or alternatively that the original decision be set aside and the matter be reconsidered by the decision maker.
- The relevant law governing the issuing of a positive notice and a Blue card is the Working with Children (Risk Management and Screening) Act 2000 (Qld) (the Act). The object of the Act is to promote and protect the rights, interests and wellbeing of children in Queensland.
- The Tribunal, on review, must produce the correct and preferable decision by way of a “fresh hearing on the merits”.
- The Tribunal must consider the material that was before the Deputy Chief Executive Officer at the time he made his decision and any new material presented by the applicant at the hearing including, for example, evidence from any treating health professionals and lay witnesses.
- Section 6 of the Act provides that the welfare and best interests of children are paramount and that every child is entitled to be cared for in a way that protects them from harm and promotes their well-being. Section 360 of the Act confirms that principle for the purposes of reviewing a child-related employment decision.
- Section 221 of the Act provides that where a person has been convicted of an offence other than a serious or a disqualifying offence as defined in the Act then a positive notice must be issued unless it is an “exceptional case” where it would not be in the best interests of children for the applicant to be issued with a positive notice.
- The meaning of “exceptional case” is not defined in the Act but the decision in Maher’s case sets out that whether a case is exceptional is a matter of discretion, to be determined by looking at the circumstances of each individual case, and having regard to the legislative intention of the Act. What constitutes an exceptional case is a question of fact and degree.
- In Commissioner for Children and Young People and Child Guardian v Eales,the Appeal Tribunal considered the Tribunal’s reasoning in Maher’s case. The Court of Appeal’s stated that:
“The Court of Appeal (in Maher’s case) did not endorse the method of balancing identified protective factors against risk factors in that case to find whether an exceptional case existed. ... At its highest, the Court of Appeal did not criticise or otherwise adversely comment on the method of identifying from the evidence in any case relevant protective factors and risk factors when considering whether an exceptional case exists such that it would not harm the best interest of children for a Blue Card to be issued to a person …What the Court of Appeal confirmed was that the Tribunal could correctly find that the number of significant protective factors present in Maher’s case rendered the case an exceptional one having regard to, and being satisfied about, the criteria specified by the Act”.
- The Tribunal is required to consider the facts in the applicant’s case within the legislative framework to determine whether an exceptional case exists.
- The purpose of the review is to reach the correct and preferable decision.
- Any hardship or prejudice suffered by the applicant as a result of a refusal to issue a positive notice is irrelevant to a determination of the issue.
- The applicant has been convicted of an offence other than a serious or disqualifying offence. Therefore, she must be issued with a positive notice unless this is an “exceptional case”.
- Section 226(2) of the Act sets out the matters that the Tribunal must consider in determining whether an “exceptional case” exists. However, the list is not exhaustive and does not confine the Tribunal to consider only those matters.
- The matters include the following:
- Whether the offence is a conviction or a charge:
- The applicant has 2 convictions for alleged dishonesty in 1992 and 1993. She was convicted and fined in relation to both matters.
- The applicant also has finalised charges for dangerous operation of a vehicle and adversely affected by an intoxicating substance, will wilful damage of police property and failure to appear in accordance with an undertaking in 2014. These charges were all struck out by order of the Mental Health Court.
- Whether the offence is a serious offence and if it is, whether it is a disqualifying offence. The applicant has not been convicted of a serious or disqualifying offence.
- When the offence was committed or is alleged to have been committed. The original charges occurred at least 23 years ago and the recent charges relate to incidents which were alleged to have occurred on 20 July 2014 and 26 August 2014.
- The nature of the offence and its relevance to employment or carrying on a business that involves or may involve children: It is contended by the respondent that the applicant’s alleged offending behaviour is directly related to her eligibility to work in child-related employment as it raises concerns about the stability of the applicant's mental health and her ability to exercise judgement and make appropriate decisions in the best interests of children and young people in her care.
- In the case of a conviction, the penalty imposed by the Court and if it decided not to impose an imprisonment order for the offence, or decided not to make a disqualification order under section 357, the Court’s reason for its decision: The Court imposed fines in relation to the earlier offences of dishonesty. There were no details provided regarding the Court's reasons for these penalties.
- No information was received in relation subsections 226(2)(b)(c) or (d) of the Act.
- In relation to section 226(e), the Tribunal considered the following reports received from the applicant regarding her mental health:
- Dr VE, Psychiatrist dated 3 August 2015;
- Clinical Report Forensic Order Review from Dr VE dated 24 March 2016;
- Applicant’s “My Recovery Plan” dated 26 April 2016;
- Affidavit of WN, Clinical Nurse Consultant dated 19 February 2016;
- Dr FJ Psychiatrist dated 10 December 2014; and
- Dr SD Consultant Psychiatrist dated 7 October 2015 and 15 March 2016. Only Dr SD was available to give oral evidence.
- The Tribunal was also provided with a Transcript of Proceedings of the Mental Health Court.
- The issue for determination in this case is whether it is an “exceptional case” such that it would not be in the best interests of children for the applicant to hold a positive notice.
- The applicant is a 42-year-old woman who holds a Bachelor of Social Work degree. She had been the holder of a Blue card for 15 years up until its expiry on 11 April 2014. She has an impressive resume extending back to at least 1999.
- The applicant described her career as a social worker as working with vulnerable families, adolescents and children and other minority groups within our community to assist them to reach their full potential and lead safe and fulfilling lives.
- In 2008, she says that she sought assistance with some memory problems that were affecting her ability to complete her work in the busy environment of Child Safety. She was referred to Dr FJ for assistance with a previously diagnosed condition of Attention Deficit Disorder. She continued to see him for the next six years up to her separation from her partner in 2014.
- In the lead up to the incident on 20 July 2014 the applicant had been told to leave her accommodation that she shared with her partner at the time after he decided to end their six-year relationship. She had experienced a decline in her mental state that her partner became intolerant of. On the day of the incident the applicant had attended a fishing trip with friends and family at a local beach. She had been experiencing auditory hallucinations and acting in a bizarre manner.
- She was asked by her partner to leave their residence. She then packed a bag and attempted to drive approximately 4 hours to her parent’s residence. Throughout the journey the applicant was experiencing hallucinations and when interviewed by police she could not remember some of the events that were alleged to have occurred.
- She was charged with dangerous operation of a vehicle and adversely affected by an intoxicating substance. On 26 August 2014 she was also charged with failure to appear in accordance with an undertaking.
- It was alleged that while driving on a highway, the applicant had intentionally rammed another vehicle with her own vehicle on a number of occasions. The applicant accepted the allegations as set out in the police material apart from denying that she was affected by an intoxicating substance.
- Police alleged that at the time the applicant was intercepted she appeared to be stunned and dazed. Further her responses were vague and confused, often not relevant to the question asked and intermittently unresponsive. She was transported to a local watch house where she was weeping hysterically and unable to be calmed down before showing a dramatic mood swing and behaving inappropriately towards police.
- The Mental Health Court determined that the charge of dangerous operation of a motor vehicle whilst intoxicated should be dealt with as an alternative charge of dangerous operation of a motor vehicle. In relation to all charges the applicant was found to be of unsound mind and the charges were discontinued.
- The Mental Health Court made a Forensic Order requiring the applicant to receive psychiatric treatment from an authorised Mental Health Service.
- The Forensic order was to be reviewed in six months and was subject to the following conditions:
- The applicant must reside at her current address or an address approved by the psychiatrist;
- She must comply with the requirements of the psychiatrist in relation to treatment;
- She must not use alcohol or illicit drugs and submit to drug testing if required by the psychiatrist;
- She may drive a motor vehicle if permitted to do so in writing by the psychiatrist.
- Dr VE, psychiatrist, states in a Clinical Report Forensic Order Review that the applicant was “floridly psychotic at the time of her first two offences such that three psychiatric opinions prior to the Mental Health Court hearing stated that she was suffering from a mental illness and as a result was deprived of the ability to know what she ought not to do, what she was doing and the ability to control her actions.”
- Dr SD provided a report in which he said that the applicant suffers from a schizoaffective disorder which is well controlled on her current medication (ziprasidone and sertraline).
- Dr SD’s report was specifically prepared in relation to the applicant’s suitability for child-related employment. In his opinion, the applicant is very aware that she has a mental health problem which needs medication. He said she has been compliant with her medication and appointments without complaint and as a result she has remained well. She has a good understanding of her mental health condition. She is determined not to become unwell as this will not only affect her future but also other people including the children that she may be working with.
- At the time of the report, Dr SD could not identify any risk factors or triggers. He said that the applicant does not use drugs or alcohol and is totally compliant with her medication. She is in a stable relationship. He expressed the view that the applicant handled the stress and disappointment of losing a job due to the lack of a Blue card very well and she remained positive.
- Dr SD also identified some protective factors that are present. He acknowledged that the applicant is on a forensic order and is required to have regular appointments with her psychiatrist and case manager. He also pointed out that she sees him on a monthly basis.
- The applicant intends to cohabit with her new partner who is well aware of her mental health problems and is willing to not only support her but also to let her and her treating psychiatrist know if he feels she is becoming unwell.
- Her family also know to notify her treating psychiatrist and case manager, if she is displaying any symptoms of illness and she also has supportive friends around her who are aware of her mental illness and who would act if required.
- Dr SD outlined some preventative strategies, he says that the applicant is using including taking her medication regularly, not abusing drugs or alcohol, being reviewed on a regular basis, looking for stability in her life with respect to employment, relationships and accommodation and developing a better understanding of her illness.
- In summary, Dr SD said that he had no concerns about the applicant becoming unwell again. She has training suitable for child-related employment and he would support her in her application.
- Dr SD was the only witness who gave oral evidence on behalf of the applicant. He admitted that he has no previous experience assessing suitability to work with children.
- He expressed his opinion that forensic orders are can be overused because it is about risk management. In his view over managing risk can in fact increase it. He says that it needs to be beneficial for the patient.
- In his opinion the level of risk applying to the applicant is very low. It is normal behaviour for her to express her frustration about what has occurred. He says that her chances of becoming unwell reduce if she is in a stable relationship with a job where she gets some enjoyment and satisfaction.
- Further he said that the presence of the forensic order does not make the applicant compliant because that has not been an issue.
- When questioned about the applicant’s driving record, he acknowledged that it is “pretty bad”. However, he commented that lots of people lose their licenses regularly. In his view that does not mean they are dangerous and that it is important to look at the context in which the offending occurred.
- Dr SD discussed the applicant's diagnosis and explained that in his opinion she sits somewhere between bi-polar and schizophrenia. He says that she is well stabilised on her medication and is fairly good with her treatment. If her condition is not treated it will lead to another psychotic condition and the same thing could happen again. He stated that the applicant needs to continue with her treatment.
- I found Dr SD to be refreshingly candid in his assessment of the applicant. He was willing to express strong views. However, I found that he was able to justify his position and distinguish his reasoning from that of the other reports that he did not necessarily agree with.
- He said that managing risk is about control which can lead to a lack of autonomy and people cannot deal with that. In his view the applicant is not at risk or at the least the risk is very low. She has accepted her situation and got on with her life in a mature and sensible manner.
Is this an “exceptional case?”
- In his written reasons dated 23 October 2015 the Deputy Chief Executive Officer referred to the incident in July 2014 and expressed the view that the applicant's actions were highly concerning and that mental health issues contributed to her impaired ability and judgement at this time. He noted that the Mental Health Court found that she was of unsound mind in relation to the charges.
- He pointed out that the making of the forensic order, which continues in force, demonstrated that the Court was satisfied that the applicant cannot yet independently manage her mental health and requires ongoing monitoring.
- The respondent acknowledged that the applicant had provided context for the incident and the circumstances that may have contributed to her state of mind at the time. He also commended her for seeking professional assistance and he noted the comments of Dr SD in relation to the current management of her mental health, her compliance with her treatment and the fact that her prognosis would appear to be very good.
- However, the respondent also expressed concerns regarding the recent nature of the applicant's mental health issues which led to the charges. He expressed concern that not enough time had passed for the applicant to demonstrate that she has addressed the triggers and/or stressors that contributed to her significantly diminished judgement. He pointed out that the applicant's actions placed others at serious risk of harm and that this is relevant to her eligibility to engage in child-related regulated employment.
- The respondent also highlighted that the applicant’s diagnosis had not been made clear as at 23 October 2015 and the applicant had not engaged in treatment for a sufficient period of time such that she could adequately address the underlying causes/triggers to her recent psychotic episode. I have considered Dr SD’s evidence regarding the applicant’s diagnosis and I accept that it is still not clear but it is now being properly managed.
- I also accept Dr SD’s evidence that her current condition should not affect her ability to perform her duties as a social worker. Since the time of the decision regarding her negative notice, the evidence from the applicant supported by Dr SD confirms that the applicant has taken significant steps to address the concerns.
- In her oral submissions, the representative for the respondent emphasised that the legislation seeks to put gates around employment to protect children from harm. She submits that a person must be able to exercise proper judgement to protect children from harm. She reminded the Tribunal that in this area the legislation is protective and the screening process must be rigorous.
- The representative acknowledged that the applicant's mental health is stable and being well-managed at this point in time. She has adhered to the requirements of the forensic order and has complied with her appointments and medication. She accepts that the applicant has managed recent stressors effectively and has previously maintained a high level of functioning over a number of years. Her written referees were all supportive.
- However, the representative points out that the 2014 incident placed other road users at extreme risk because they were forced to drive dangerously with the high likelihood that children could have been at risk at the time. In her submission, the applicant's conduct was extreme and out of control and posed a critical threat to other road users.
- The representative challenged the weight which should apply to Dr SD’s evidence because he is the applicant’s treating psychiatrist and has an interest in her recovery. She pointed out that other professionals differ significantly from the views expressed by Dr SD. I have not given as much weight to the other professionals because they were not called to give evidence. I was satisfied that Dr SD gave frank and independent evidence and he was able to be questioned by both parties,
- The representative identified other risks that include concern that the applicant’s support work network is largely unchanged since the incident. A recent review of her forensic order resulted in the Mental Health Tribunal deciding that the order should continue in place, that insufficient time had passed and that there is no evidence of the applicant operating independently of the order.
- The representative also pointed out that the effect of issuing the applicant with a positive notice is that the applicant is able to work in any child-related employment or conduct any child-related business regulated by the Act. She submitted that in spite of the applicant's employer being willing to assist her in a role with due consideration to her mental health concerns, including implementing appropriate risk management strategies such as supervision, the reality is that the applicant would be largely unsupervised and unregulated should she be given a positive notice.
- The representative therefore submitted that this is an exceptional case where the risk factors raised significant concerns particularly in relation to the safety of other road users. She says that the circumstances as a whole, despite the lack of convictions makes it an exceptional case. She submitted that the decision of the Chief Executive Officer should be confirmed.
- I have considered all of the evidence presented in this matter. I note that the decision by the Deputy Chief Executive Officer, was made in October 2015 and therefore a further period of time has passed. I was impressed by the applicant and the steps she had taken to address her mental health issues.
- I find that the applicant did have a psychotic incident in 2014. There is no evidence prior to 2014 that she had previously experienced a similar situation, although the applicant’s own evidence is that she had been seeing Dr FJ since 2008.
- I accept the recent evidence by Dr SD regarding the ongoing progress which the applicant has made in this matter. I acknowledge that the evidence shows that the applicant's appalling driving history continued until at least August 2015. I consider that Dr SD has minimised the significance of the applicant’s driving history but I am not convinced that it makes this an exceptional case.
- I accept that the forensic order has recently been continued by the Mental Health Tribunal. I find that the applicant has demonstrated strong motivation to ensure that she will not experience another psychotic incident and has put in place appropriate steps to ensure that she does not experience another psychotic episode.
- I have taken into account the risk and protective factors identified by Dr SD in his evidence and I have also made reference to the risk and protective factors as detailed in the submissions by both parties.
- The Act provides that a positive notice must be issued unless this is an exceptional case in which it would not be in the best interests of children for the applicant to be issued with a blue card. I am not satisfied that this is an exceptional case.
- Section 66 of the QCAT Act provides that the Tribunal may make an order prohibiting the publication of information that may enable a person who has appeared before the Tribunal or is affected by a proceeding to be identified if the Tribunal considers the order is necessary to avoid the publication of confidential information or information whose publication would be contrary to the public interest.
- Section 526(2) of the Mental Health Act 2000 provides that “… A person must not publish information that identifies, or is likely to lead to the identification of, a person… who is or has been a party to a proceeding” under the Mental Health Court or Tribunal.
- The applicant in these proceedings has been the subject of Mental Health proceedings okay and I am satisfied that it is in the interests of justice to publish these reasons in a de-identified format.
Is this an appropriate matter for costs to be ordered?
- The applicant has sought an order for costs. Her representative acknowledged that under the QCAT Act costs don't follow the event. In support of her application she refers to the provisions of section 102(1) of the QCAT Act that provides that the Tribunal may make an order requiring a party to a proceeding to pay all or a stated part of the costs of another party to the proceeding, if the Tribunal considers the interests of justice require it to make the order.
- The considerations when deciding whether to award costs are set out in section 102(3) of the QCAT Act. The representative for the applicant emphasised that the nature and complexity of the dispute and the number of expert opinions relating to mental health considerations that were considered.
- He submitted that the applicant's position was strong from the beginning and that the applicant had strong support for her position, she assisted where she could and she attempted to comply with any requirements and seek advice as to what she could do to assist.
- Further the representative contended that the Tribunal should consider the relative financial circumstances of the parties and the fact that it was necessary for the applicant to seek legal advice and pay costs up to and including the hearing. A copy of the costs to date was provided to the Tribunal. It was submitted that the Tribunal can fix an amount so that the client is not at a disadvantage.
- The respondent provided comprehensive submissions regarding the application by the applicant. He submitted that the question overall success or failure is not persuasive of itself on the question of costs by virtue of section 100 of the QCAT Act.
- He referred to the decision in Ascot v. Nursing and Midwifery Board of Australia where it is stated:
“… the public policy intent of the provisions in the QCAT Act is plain. The Tribunal was established as a no-cost jurisdiction. That may be departed from where the interests of justice require it. The considerations identified in section 102(3) are not grounds for awarding costs. They are factors that may be taken into account in in determining whether in a particular case the interests of justice require the Tribunal to make a costs order”.
- The respondent argued that the following factors are relevant to a determination of this issue:
- The respondent strongly refutes the submission that the applicant was denied procedural fairness in the decision-making process and submits the respondent spoke to the applicant on 11 separate occasions;
- The applicant was provided with all of the adverse information before the decision maker and was afforded the opportunity to make submissions in response to the material before a decision was made;
- The respondent complied with requirements of section 226 of the Act and the applicant was provided with all relevant information necessary to promote her application.
- Further the respondent contended that it did not oppose the applicant's request for leave to be represented in spite of the fact that the presumption in the tribunal review jurisdiction is that parties appear without representation.
- The respondent submits that there is no evidence to support that the relevant law was not properly applied or that the very broad discretion vested to the decision maker in the Act was inappropriately or improperly exercised in any way.
- In relation to the issue of the complexity of the matter, the respondent referred to the decision of Senior Member Endicott in Deans v. Queensland College of Teachers where she states as follows:
“QCAT since its commencement has declined to make costs orders in many complex matters across its wide jurisdiction, as complexity is merely one factor among several referred to in section 102 that QCAT may take into account to determine whether in a given case the interests of justice require the making of a costs order”.
- The respondent emphasises that the issue for determination here is whether the interests of justice require the cost to be passed on to the respondent.
- On 6 May 2016 I directed that the respondent and the applicant have an opportunity to provide written submissions regarding the issue of costs. Submissions were subsequently received from the respondent but no further submissions other than the oral submissions at the hearing were received from the applicant.
- I have considered the submissions and materials provided in relation to the issue of costs. I am aware of the comments by Justice Wilson in Ralacom:
“Under the QCAT Act the question that will usually arise in each case in which costs are sought is whether the circumstances relevant to the discretion inherent in the phrase ‘the interests of justice’ point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in s 100.”
- I find that the applicant was afforded procedural fairness. While I accept that there were some complex issues to address, I am not convinced that the argument for costs is so compelling that an order should be made.
I accept the submissions of the Respondent and find that the interests of justice do not require a departure from the normal approach in matters before QCAT that parties must bear their own costs.
- The orders are:
- I declare pursuant to s 60(1) of the QCAT Act, that this is not an exceptional case under s 221(2) of the Working with Children Act 2014, such that it would not be in the best interests of children for a positive notice to issue.
- The decision of the Chief Executive Officer dated 23 October 2015 to issue a negative notice is set aside.
- The application for costs by WAJ is dismissed.
 Section 5 of the Act.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
 See Commissioner for Children and Young People and Child Guardian v Maher & Anor  QCA 492.
  QCATA 303.
 CEO, Dept. of Child Protection v Scott (No2) WASCA 171 at para 23.
  QCAT 364 at 9.
  QCAT 607 at 10.
 Racing Queensland Ltd v Cassidy (N0 2)  QCAT 220 at 26.
  QCAT 412 at 29.
- Published Case Name:
WAJ v Chief Executive Officer, Public Safety Business Agency
- Shortened Case Name:
WAJ v Chief Executive Officer, Public Safety Business Agency
 QCAT 359
01 Sep 2016