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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
LAR v Director-General Department of Justice and Attorney General  QCAT 337
dIRECTOR-gENERAL dEPARTMENT OF JUSTICE AND ATTORNEY GENERAL
6 November 2019
2 August 2019
The decision of the Respondent that the Applicant’s case is an exceptional case in which it would not be in the best interests of children for a positive notice to issue is confirmed.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to issue a negative notice
FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – blue card – where issue of negative notice – application for review – where applicant has no criminal history – where Tribunal confirmed decision to issue a negative notice
Working with Children (Risk Management and Screening) Act 2000 (Qld), s 6, s 221, s 226
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20 (2)
REASONS FOR DECISION
- LAR recently completed her nursing studies while she was issued with a positive notice and a Blue Card. Following the receipt of police information, the respondent re-assessed LAR’s eligibility and issued a negative notice on 8 November 2018. LAR says that she is unable to work as a nurse without a Blue Card.
- LAR has applied to the Tribunal for review of the decision to issue a negative notice. She asks the Tribunal to determine that a positive notice should be issued. That would mean that she would be eligible to receive a Blue Card.
- This is not an appeal decision, but a review. I am standing in the shoes of the original decision maker and must make the correct and preferable decision. My decision making is governed by the provisions of the Working with Children (Risk Management and Screening) Act 2000 and the Queensland Civil and Administrative Tribunal Act 2009. The paramount consideration is the welfare and best interests of children.
- The reassessment was triggered when LAR was charged with possessing dangerous drugs, possessing anything used in the commission of a crime defined in part 2, and possessing utensils or pipes etc that had been used. The charges arose out of an incident on 12 January 2018. When the matter came before the Magistrates Court on 5 November 2018, prosecutors advised the court that there was no evidence to offer in relation to all charges.
- As LAR has not been convicted of a “serious offence” as that term is defined in the Act, she must be issued with a positive notice unless I am satisfied that this is an exceptional case in which it would not be in the best interests of children for her to receive a Blue Card.
- In considering this application, I must have regard to the matters set out in legislation and any other relevant matters. So far as the matters set out in the legislation are concerned, I find that LAR does not have a criminal history, and does not have any pending criminal charges. The previous charges arose in circumstances described below.
- On 12 January 2018, police attended an address where they found LAR. She had cut her arms and had (she says) written on the wall with her blood in retaliation for abuse she had received from her then partner. LAR described being raped by her partner, who she had recently reconciled with, and then becoming upset to discover that he had been using marijuana. She states that she intentionally placed a marijuana plant in the view of the police, and that her partner then implicated her in its use to get back at her. LAR states that she had not been aware that her partner was growing marijuana in the back yard, or that he was using marijuana. She states that she was not living in the property at the time, but visited there. As noted above, prosecutors ultimately advised the Magistrate that there was no evidence to offer in relation to the charges against LAR.
- The Tribunal considers it inherently unlikely that LAR was unaware of her partner’s use of marijuana. She is adamant, however, that she had not used the drug and was not aware of her partner’s use until shortly before the police became involved.
- In the course of these proceedings, further information was provided to the Tribunal from the Mental Health Service, Child Safety, and the Queensland Police Service. Pursuant to the legislation, I must take into account matters which relate primarily to criminal offences and the surrounding circumstances. That is not, however, an exhaustive list and the matters raised in the material from the government departments is relevant to my consideration.
- The material from Child Safety reveals that the Department became involved with LAR in January/February 2009, around the time of the birth of her daughter. Investigators found that domestic violence existed in her home, and posed a danger of serious physical and / or emotional harm to the child. There were reports of LAR being hit by her partner, and of her threatening to kill herself. Staff were advised that LAR had previously been hospitalised in October 2008 following “DV issues and Acute Stress Reaction”. A history of mental health issues was noted, and in 2005 Mental Health had been contacted for PTSD, minor self harm and acute stress reaction. LAR was noted to have a history of anxiety and depression and a “tendency not to cope well” and thinks of self harming when stressed. LAR’s GP indicated he held “serious concerns” about how LAR was going to cope, as she was very isolated, had been abused in the past, and domestic violence was present. Allegations are made throughout the Child Safety material about the use of drugs by both parents.
- On 6 February 2009, Child Safety assessed that there was an unacceptable risk of future harm to the child, that there was no a parent willing and able to protect the child, and that the child was in need of protection. A further assessment on 20 August 2009 concluded that the child was safe and that the parents had been working with the department and that domestic violence was no longer present in the home as the parents had separated.
- In April 2010, Child Safety was notified of an argument between LAR and her former partner during which the child was accidentally knocked over. Due to LAR’s level of distress, an ambulance was called. An assessment in June 2010 concluded that the child was safe. In November 2010 the police were called following a further incident between LAR and her former partner.
- In April 2013 and August 2015, further reports were made to Child Safety.
- In June 2016, the police were called following a physical argument between LAR and her former partner. Records show that LAR indicated she had been violently attacked by her former partner, and that she and her daughter had been locked in a bedroom overnight. LAR advised that she had smashed a window out of frustration but denied threatening to hurt herself or being suicidal.
- In December 2016, further reports were made to Child Safety. LAR claims that many of the reports to Child Safety were baseless, and motivated by malice. That may be true in the case of some reports. The ongoing involvement of the department is, however, indicative of the turmoil in LAR’s life over an extended period.
- In September 2017, LAR presented to hospital due to an emotional crisis with vomiting and was diagnosed with a reaction to severe stress.
- On 12 January 2018, the incident occurred which resulted in the charges against LAR. Child Safety’s assessment concluded that the risk factors for the child were significant if she was in the care of LAR, however she would remain in the care of her father.
- Child Safety records indicate that police had found LAR bleeding from self inflicted wounds to her wrists. Messages were written in blood and in pen on the wall. The house was damaged, including the front glass window.
- On 30 January 2018 LAR visited a GP who referred her for urgent mental health assessment at hospital for depression and intentional self harm. Medical assessment noted a history of extensive sexual, physical and mental abuse, previous diagnosis of depression, deliberate self harm, post traumatic stress disorder, and adjustment disorder. Records indicate that LAR had used cannabis occasionally, although at the Tribunal hearing LAR strenuously denied drug use. She was diagnosed with a major depressive episode in the context of the recent breakup with an abusive partner and a background of prejudicial childhood (CSA victim). Hospital notes dated 19 February 2018 indicate LAR had been diagnosed with a major mental illness.
- On 16 April 2018 LAR presented to hospital following the death of her father.
- On 18 April 2018 LAR’s GP wrote that LAR “has been actively seeking treatment for her depression and anxiety” and had developed “a good understanding of her symptoms, as well as the triggers that can worsen her anxiety. She has the ability to implement strategies to reduce her stressors and improve her mood as required. I strongly believe that LAR’s mental health will continue to improve with medical treatment, as well as ongoing counselling from myself and her psychologist…”
- On 1 June 2018 LAR was transported to hospital by the ambulance following a polypharmacy overdose with suicide ideation. This was in the context of the recent death of her father, and of her former partner refusing to return her daughter to her care. At the hearing, LAR indicated that she hadn’t been sleeping in the period prior to hospitalisation as she had been prescribed to take her medication at night. She says that in hospital she was prescribed to take the medication in the morning, which significantly improved her sleep and mental health.
- On review on 15 June 2018, her doctor noted “some cluster B vulnerabilities”. Hospital notes record LAR had entered a new relationship which was supportive, although that relationship ended, according to hospital notes, a few days later.
- On 20 June 2018, LAR was admitted to hospital with suicidal intent following a telephone call with her daughter.
- On 13 July 2018, LAR presented at hospital with suicidal ideation. She was admitted to PEC overnight and hospital notes record “behavioural disturbance” of kicking and banging at the doors, yelling and screaming. LAR advised the Tribunal that she felt trapped in PEC, and unable to get the help she asked for.
- Hospital notes from 31 August 2018 record that LAR’s GP advised that LAR portrays cluster B personality traits and has a pattern of experiencing crises which results in her engaging in treatment, but will disengage once the situations resolve.
- On 13 September 2018, notes record that LAR disengaged with mental health case management and had missed multiple appointments with the case manager and doctor. LAR had been diagnosed with emotionally unstable personality disorder, borderline type (BPD) with co-morbid depression. Her treating psychiatrist noted that there is no pharmacological treatment for BPD, and admission to a hospital ward serves no clinical purpose. Her level of risk was described as “highly changeable”.
- On 25 September 2018, LAR’s discharge to her GP was considered in the context of her limited engagement with mental health services.
- In October 2018, LAR’s mental state was considered stable, on a background of BPD. In early December 2018, LAR reported that her daughter was worried that she would hurt herself, and on 7 December 2018 LAR felt that she was “losing it again.” She acknowledged that she has some of the behavioural characteristics of BPD.
- In January 2019 LAR contacted mental health services after receiving a letter outlining her BPD diagnosis. LAR advised that she wished to challenge the diagnosis. A week later, however, she declined the opportunity for an appointment to discuss the diagnosis. At the hearing LAR initially stated that she hadn’t been “properly assessed” for BPD. She ultimately reluctantly indicated that she accepted the diagnosis.
- On 22 January 2019, LAR was discharged into the care of her GP.
- LAR provided evidence that she had completed her studies in nursing and had performed well in placements. Documents dated May 2017 indicate she was assessed to cope extremely well with the fast pace of a surgical ward, is enthusiastic and motivated to learn and always goes the extra mile in her care for patients. She was described as an “invaluable team member”.
- LAR’s friend provided evidence. She states that she has known LAR since 2012 and has never seen her under the influence of drugs or alcohol. She believes it is not in LAR’s nature to physically harm or place any child in danger. She feels strongly that LAR should be working as a nurse. She puts LAR’s mental health difficulties down to a combination of stressful circumstances which affected LAR in 2017, including her training organisation going broke, difficulties with Centrelink and her relationship with her ex-partner. She notes that LAR seeks help when anxiety and depression escalate. She described the incident in January 2018 as an extreme situation and a mistake that would not be repeated. She has never seen LAR engage in aggressive, violent, impulsive or dysregulated behaviour. LAR’s daughter is protective of LAR and is well adjusted, confident and forthright.
- LAR states that she is trying to stay healthy and be a good mum. She says that she is working part time and has a close group of friends who support her. She says that her daughter is thriving. She says she has developed some strategies to cope with difficult and stressful situations, including contacting friends, walking, asking for help, working, volunteering and focusing on her child.
- LAR states that she takes better care of herself than she has in the past, and avoids the type of man she has previously been involved with. She says that she is focusing on herself and her daughter. LAR states that she is supported well by her GP who is treating her for anxiety (she says she is not currently treated for depression on doctor’s advice). She says that her GP told her that she does not meet the criteria to receive support through a mental health plan.
- LAR states that she has a strong informal support network made up of friends and workmates, and that she has professional support available to her through her GP and, if necessary, 24 hour helplines or the hospital.
- LAR states that she has worked hard to overcome the difficulties in her past. She is highly motivated to remain an active and contributing community member. She says that she was unhealthy but has now healed through hard work and commitment.
- In assessing whether this is an exceptional case in which it would not be in the best interests of children to issue a blue card, the Tribunal has taken into account a number of protective and risk factors.
- The Tribunal accepts that LAR has worked hard to obtain qualifications in challenging circumstances, and that she is committed to providing a stable and productive lifestyle for herself and her child. The only criminal charges against LAR were discontinued by the prosecution. LAR has identified a number of strategies which she employs to assist her when feeling stressed. She is aware that she is able to obtain support from her GP and mental health services, and has a strong informal support network. LAR is actively seeking to avoid the type of incidents and relationships which have occurred in her past.
- The Tribunal makes no finding as to LAR’s use of drugs. The evidence is contradictory and unclear. It is clear that drugs have been part of the reason for the instability surrounding LAR, whether it was her own or her former partners’ use.
- LAR’s long standing mental health issues are a significant risk factor. The Tribunal accepts LAR’s submission that “it is not the presence of a mental health condition that puts others at risk but how and when the mental health condition manifests itself and how the sufferer responds to it.” LAR acknowledges receiving treatment for anxiety and depression, but does not address the other conditions she has been diagnosed with. While it is true that LAR has not been hospitalised recently, it seems that may be due to an assessment that admission and pharmacological treatment serve no clinical purpose in the treatment of her diagnosed BPD. There is no evidence that the diagnosis is no longer current, nor is there evidence that the internal factors which precipitated LAR’s past behaviour have materially changed. LAR was discharged from mental health services after a period of minimal engagement.
- LAR has exhibited extreme behaviour including self-harm, violence and aggression. Hospital records indicate that she has been diagnosed with a range of mental health conditions, and that her level of risk is “highly changeable”. I have no medical evidence to dispute the assessment of the mental health service, and LAR’s inconsistent engagement with treatment (apart from GP treatment for anxiety and or depression) is a further risk factor. LAR is to be commended for the steps she has taken to provide stability for herself and her daughter, there is no independent medical evidence supporting LAR’s belief that she will not repeat the behaviour she has previously engaged in. In short, the evidence is that LAR’s mental health condition(s) become symptomatic when she is placed under stress and her behaviour in response is unpredictable and uncontrolled. She is not engaged in ongoing therapy to increase her ability to avoid turmoil, manage stressful situations, or to mitigate the risk of repeating the behaviour.
- On balance, I am satisfied that the risk factors currently outweigh the protective factors, and that this is an exceptional case in which it would not be in the best interests of children for LAR to be issued with a positive notice. The decision of the respondent is confirmed.
- I note that the Tribunal issued a non-publication order on 14 June 2019. Accordingly, these reasons will be published in a de-identified format.
- Published Case Name:
LAR v Director-General Department of Justice and Attorney General
- Shortened Case Name:
LAR v Director-General Department of Justice and Attorney General
 QCAT 337
06 Nov 2019