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QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
HSG v Director-General, Department of Justice and Attorney-General  QCAT 6
DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
17 January 2020
29 August 2019
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 – where Applicant was convicted of offences that are not serious offences – where Applicant issued with negative notice under the Working with Children (Risk Management and Screening) Act 2000 (Qld) – whether an exceptional case exists where it would not be in best interests of children to issue positive notice
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Working with Children (Risk Management and Screening) Act 2000 (Qld)
APPEARANCES & REPRESENTATION:
M Woods of Woods Prince Lawyers
REASONS FOR DECISION
- HSG (‘Applicant’) is employed by an academic institution and requires a Blue Card to fulfill all of his employment duties. On 16 November 2018, the Director-General, Department of Justice and Attorney-General (‘Respondent) advised HSG that his application to renew his Blue Card had been unsuccessful, and issued a negative notice.
- HSG has applied to the Tribunal for review of the decision to issue a negative notice. He asks the Tribunal to determine that a positive notice should be issued so that he 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 (Qld) (‘the Act’) and the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). The paramount consideration is the welfare and best interests of children.
- The Tribunal has been provided with voluminous material. These reasons contain a summary only of the relevant material which has been taken into account in making this decision.
- HSG has a criminal history:
- (a)On 22 June 2011, he was convicted of possessing a dangerous drug, possessing tainted property, possessing utensils or pipes etc that had been used, and possessing property suspected of having been used in connection with the commission of a drug offence. No conviction was recorded, and he was placed on a Good Behaviour Order for 12 months. A further charge of publishing or possessing instructions for producing dangerous drugs was discontinued after there was no evidence to offer.
- (b)On 2 November 2018, he was convicted of unlawful possession of restricted drugs. No conviction was recorded and he was placed on a Good Behaviour Order for 12 months.
- As HSG has not been convicted of a “serious offence”, as that term is defined in the Act, he must be issued with a positive notice unless the Tribunal is satisfied that this is an exceptional case in which it would not be in the best interests of children for him 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.
- HSG provided oral and written evidence to the Tribunal. The impression was that his evidence was quite guarded. He is now 39 years of age, and has a senior position in a tertiary institution in Queensland, teaching in the areas of psychology and counselling. HSG has an Undergraduate degree and a Masters degree, and has completed other associated studies. He has been unable to practice in the field since receipt of the negative notice.
- HSG is married without children and says that he volunteers in a number of community organisations, regularly participates in martial arts training, and is involved in communities which practice “contemplative forms of Christianity.”
- While he has engaged in drug use in his past, he says that he has not smoked tobacco or used illicit drugs since 2010, and drinks alcohol “socially”.
- HSG describes an unremarkable childhood with somewhat distant but loving parents. He states that he continues to share a strong and healthy relationship with his parents and sister. He says that in his childhood home, difficult feelings were not discussed or expressed. He experienced some social difficulties in his early school life, and the death of a mentor in his teens with some conflict with his parents around that time. He describes some traumatic events during his teenage years, including being subject to verbal and physical abuse during high school. He used both alcohol and cannabis as a teenager, and at university, where he also used LSD and MDMA.
- After graduating, he worked providing intensive family support to families at risk, including those at risk because of drug and alcohol abuse. After working for around 7 years he describes experiencing anxiety and depression, and changed employment “as an act of self-care”. He says that during that period he was not provided with organisational and supervisory support or adequate training around the impact of the work on himself, and that as a result he began to drink more alcohol. After the death of a family member, he took recreational drugs regularly.
- It was during this period that the first criminal charges arose after HSG ordered, what he described as “supplements”, online from overseas. At the hearing HSG clarified that he had ordered stimulants after engaging in their use with a friend, and that the police had become involved after concerns were raised by customs. He says that police located books at his home which described processes for the manufacture of particular drugs, and that he had the books because they contained stories about the author and his wife, and their use of the drugs “as tools for psychological development and growth”.
- HSG says that he was aware, through his work, of the damage caused by alcohol and drugs but was using them himself as he had not, at the time, developed the necessary strategies to adequately care for his psychological wellbeing.
- HSG describes a sense of shame and guilt following his criminal charges in 2011. He engaged a psychologist and, with the support of his partner and colleagues, identified and implemented “more healthy strategies for coping with the stress of my life/work and working within the context of trauma and disadvantage”. He identified triggers which led to his history of poor choices and drug use: fatigue and irritability, sadness/depression/lack of motivation, difficulty switching off from work, decreasing self-care and ongoing anxiety, and significant experiences of loss and rejection. He says that he implemented coping strategies: regular clinical supervision, exercise, choosing good friends, taking time for himself, talking to his support network, meditation and engaging with his spirituality, prioritising self-care, and learning to set boundaries.
- Over the next few years, HSG continued to work in his chosen field and says that he developed a deeper understanding of the way in which drug and alcohol abuse can impact on a parent’s ability to care for their children. From 2015, he continued to study, practice, travel and work as an academic. In 2017 he was offered a full time position with a tertiary institution, which HSG describes as “the culmination of all of my dedication and dreams”. When his wife developed health problems, however, he says that he began to experience “mounting pressure and stress”. This was increased when his father was diagnosed with cancer in 2018. HSG says that he found it difficult to manage caring responsibilities with his full time employment, and his sleep was impacted.
- HSG describes having lunch with a friend in October 2018. He says his friend offered him half a tablet of Modafinil (a medicine only available by prescription) to help him meet a work deadline. HSG described the drug as a mild stimulant which he thought would help him to stay awake to complete his work. HSG says “I accepted this medication without thinking through my actions or the possible consequences and in hindsight, I know I was not functioning at my usual capacity…”. He says this is the only time he has accepted prescription medication not prescribed for him. He was stopped by police that day and charged with the offences described above. HSG denies being affected by the medication. He states he is unsure why he was searched by police. The Tribunal notes that police records indicate that, after speaking to police, it was “reasonably suspected he was under the influence of a dangerous drug or medication”.
- HSG says that as a result of the charges he has reviewed and strengthened his coping strategies in consultation with his psychologist and clinical supervisor. He says he is now more aware than ever of the need to ask for help during periods of significant stress and adversity, and that he is highly motivated to avoid further incidents where his actions have adverse consequences for his family and friends, and for the young people and families with whom he shares a therapeutic relationship. Those people, he says, were impacted when he was required to suddenly cease practicing due to not having a Blue Card.
- When the Respondent was considering HSG’s application for a Blue Card, he was invited to make a submission. On 21 October 2018, HSG wrote, indicating that “the necessity of having to justify my safety in working with children is deeply uncomfortable and in some ways embarrassing if not offensive”, and that he considered that the “minor police charges” were not “correlated” with his conduct with children. HSG indicated that, while he took responsibility for contravening the law in 2018, he “strongly contested” the relevance of the charge to the previous charges and “more fundamentally its relevance to my ongoing engagement in child related contexts”.
- HSG now says that he sent the response at a time he was experiencing “a deep sense of hurt for having my character, ethics, commitment to the service of others and my ongoing and active protection of children brought into question by my 2 mistakes”. He acknowledges that he did not complete the application with the attention and respect it deserved and says that he is now “fully aware of the connection between behaving and respecting the law, offending behaviours and the safety of children.” He says that he now sees that his behaviour in all contexts is relevant to his work.
- HSG now acknowledges his offences as “boundary violations” and says “I do acknowledge the fundamental importance when working with vulnerable members of the community; of working within and upholding the boundaries and laws in place to support children and community safety and an attitude of respect and compliance…”. HSG submits that he has demonstrated his desire to work towards and facilitate active protection of children and has dedicated the last 15+ years of his life and career to the highest ethical and evidence-based practice with children and families.
- HSG says that he is “willing to make the changes and continue to develop my strategies to ensure my wellbeing and to reduce risk”. He has overcome, he says, his fear of rejection and of not wanting to burden people with his issues, and would now proactively seek help and support as needed. He says that he now recognises that his behaviour, when not at work, necessarily impacts on his ability to work with children.
- HSG’s application was supported by Alan Richardson, a psychologist, who provided a written report dated 10 May 2019 and who provided oral evidence via teleconference. Mr Richardson states that:
- (a)Long standing and constellating aspects of HSG’s personality and environment (childhood shame, insecurity and bullying, low self-esteem, self-neglect, vulnerability, and a reduced sense of self protection) are manifested as emotional avoidance, diminished self-care, blurred boundaries and a reduced sense of self-need and relational support.
- (b)While the 2010 charges resulted in HSG creating a new life without drug use, he did not address his long term issue with personal shame (which was heightened by the charges).
- (c)The factors which could contribute to a risk of further offending behaviour include: shame and low self-esteem, fear of rejection, increased levels of anxiety, blurring of boundaries and responsibilities. The risk factors are reduced by managing fatigue, “situational avoidance”, better self-care and lifestyle changes.
- (d)The factors which would reduce the risk of further offending behaviour include: professional development and his understanding of his position as a role model, a renewed commitment to honesty and transparency in his relationships, his acknowledgement of the need to seek help when necessary, and access to personal and professional support and skills in addressing psychological needs in an honest and transparent way.
- (e)HSG has now activated a support system, professionally and personally, and it is unlikely that he will engage in drug taking in the future.
- (f)HSG was prompted to see him after the negative notice was issued, and not because he had recognised that he needed assistance. He has now, however, and Mr Richardson will continue to work with HSG to ensure that he is able to maintain progress.
- Dr Miller provided evidence in support of HSG. Dr Miller has known HSG in a professional capacity since 2015. Dr Miller runs a Family Therapy Centre. He states that:
- (a)HSG has developed insight into his behaviour.
- (b)HSG has a deep and genuine remorse and will do things differently in the future.
- (c)HSG has developed and implemented strategies to avoid a repeat of his previous behaviour.
- (d)He is very, very confident that HSG will not get himself into the same situation again.
- The Tribunal notes that Dr Miller was unaware that HSG had ingested the drug in 2018, or that he had a significant drug using history in the period leading up to the charges in 2011.
- HSG’s wife provided evidence in support of her husband and of the evidence that he had provided. She herself remains committed to supporting HSG.
- HSG’s former colleague and supervisor Kym de Thierry provided evidence to support his application. It is her view that HSG has reflected and reviewed his behaviour following the 2018 incident, that he regrets his behaviour and is highly motivated to avoid any repeat.
- Pursuant to section 226 of the Act, the Tribunal has taken into account:
- (a)HSG has been convicted of the offences described above, which are neither serious nor disqualifying offences;
- (b)The 2018 offence is relatively recent, and concerning given the previous history of drug use;
- (c)The use of drugs is highly relevant to HSG’s employment, particularly given his work with vulnerable children and his role in guiding them in a protective and positive manner to avoid the very behaviour he has engaged in; and
- (d)The Courts have placed HSG on a Good Behaviour Order.
- HSG submits that there are a number of protective factors in his favour:
- (a)He is now more aware of how to monitor and manage his stress levels;
- (b)He has support from family and friends, colleagues and through his professional support network;
- (c)He is aware of the inherent risks and damage of drug use and in people being affected by drugs working with children;
- (d)He is aware of the importance of being a role model and is clear that any involvement in illicit drugs is relevant to him working with children;
- (e)The incidents have assisted him in developing his work with young people;
- (f)He has not used drugs (except properly prescribed medication) since 2011, apart from the 2018 offence. He has no association with people who use illicit drugs;
- (g)He is aware of the various risk factors and issues which contributed to him using unlawful drugs, including vicarious trauma;
- (h)He has no intention of using drugs again, being aware of the risks and repercussions; and
- (i)He has never used or been under the influence of drugs while working or while associating with young people.
- The Respondent submits that the Tribunal should take into account the following factors:
- (a)HSG has a criminal history involving drug offences;
- (b)Despite being alerted to the seriousness of his actions in 2011, and being afforded the opportunity to rehabilitate, HSG was unable to refrain from further drug use and offending behaviour on a long term basis. This raises concerns as to the risk of recidivism;
- (c)The recency of the 2018 convictions raises concerns that HSG had not, as recently as October 2018, addressed the underlying triggers to his drug use and offending behaviour; and
- (d)Mr Richardson, Dr Miller and another witness who supported HSG’s application indicated that they were not aware that HSG had ingested the drug in 2018, thinking that he was carrying the drug with him, and so their evidence should be afforded less weight.
- The Tribunal notes that there is no evidence of the use of illegal drugs since 2010, except for the 2018 incident. The use of medication prescribed for someone else is illegal and dangerous, and demonstrates a clear lack of judgement. Mr Richardson, psychologist, states that HSG is now aware of the importance of refraining from the use of mood enhancing drugs or medications, and that it is unlikely that HSG will engage in drug use in the future. HSG recognises the need for psychological support and treatment and has established a professional support system which has enabled him to develop coping strategies to address his identified triggers. HSG and his support network say that he is now open to accessing support without embarrassment or guilt. HSG is remorseful for his actions, and highly motivated to avoid repeating his past behaviour. HSG has a strong support network who attest to his work ethic, professionalism and positive interactions with children and young people.
- The Tribunal has considered HSG’s criminal history, including an offence only 12 months ago. HSG’s drug use is more extensive than revealed in his criminal history, and HSG has provided evidence that he used prohibited drugs during his adolescence and during his 20s. In 2018, as a mature adult with a responsible job and years of professional training, he again turned to using drugs when stressed and tired. HSG engaged in drug taking behaviour while holding a Blue Card and working in positions of considerable authority and trust.
- While HSG and his support network spoke extensively of his commitment to honesty and transparency (and the importance of honesty and transparency as a protective factor), the Tribunal is not satisfied that members of his support network were fully appraised of his actions. For example, it seemed that his professional support were not aware that he had ingested the drug in 2018, believing that he was in fact only found in possession of the drug. The offences (particularly the most recent offence) occurred against a background of extensive professional knowledge with the field of psychology and when he had significant experience assisting people who suffer adversely from drug use. The Applicant says that it now understands the importance of implementing strategies to prevent further drug use but it is not clear to the Tribunal why HSG did not recognise the importance earlier.
- HSG is an articulate professional. It seemed to the Tribunal that his evidence was in some respects shaped by a perception of what the Tribunal wished to hear, rather than a natural and unconsidered response to questions put to him. The Tribunal found his relatively new found appreciation of the need to avoid the use of unprescribed drugs as a means of coping with the pressures of life concerning. HSG has been immersed in the world of psychology and counselling for almost 20 years. He has actively worked in areas where the devastating aftermath of such involvement is clear. He has the support of his wife, who also works in the field, and has been receiving personal and professional support for many years. Further, the Tribunal noted HSG’s evidence that he has only recently come to the realisation that his behaviour in his own personal life necessarily affects the way he conducts himself in his professional life.
- HSG acknowledges that his offending is “incongruent with the fundamental principles that I have explored with my clinical supervisors across my career, and worked with clients and supervisees around in my role as therapist and practice supervisor, regarding appropriate self-care and choosing to openly communicate to others when in need”. HSG says that this incongruency has increased his awareness of the need to ensure his own fitness to practice and ability to actively protect children. To this end, he says, he has engaged the services of a psychologist and his two clinical supervisors to ensure that he has the strategies and support to avoid repeating his previous behaviour.
- HSG used illicit drugs quite extensively in his 20s but there is no evidence of illicit drug use in recent years, except for the one off incident in 2018. The most recent charge is a serious matter as it reflects HSG’s pattern of relying on a substance to help him to cope in difficult periods. This is despite his age, experience, and commitment to his wife. HSG has always had the knowledge and ability to seek the help which he identifies that he needs. It is not clear why he did not do so. Regardless, HSG is now committed to availing himself of the professional support available. His treating professionals have committed themselves to ensuring that he receives the support that he needs.
- HSG is now acutely aware of the impact that any further drug use will have on his career prospects. He is ambitious, and the threat of the loss of his senior position of employment has brought into sharp focus the need to stay away from illicit and unprescribed drugs.
- As HSG has been convicted of an offence other than a serious offence, a positive notice must be issued to him unless this is an exceptional case in which it would not be in the best interests of children.
- Balancing the evidence and submissions, the Tribunal is not satisfied that this is an exceptional case in which it would not be in the best interests of children for HSG to be issued with a Blue Card. HSG is committed to a drug free future, and has established a strong support system to assist in meeting that commitment. There is no evidence that it is otherwise not in the best interests of children for him to be issued with a positive notice.
- Given the sensitive nature of HSG’s work, The Tribunal considers that the identification of HSG may place vulnerable people at risk. Accordingly, the publication of information that may enable him to be identified is prohibited pursuant to section 66 of the QCAT Act.
- Published Case Name:
HSG v Director-General, Department of Justice and Attorney-General
- Shortened Case Name:
HSG v Director-General, Department of Justice and Attorney-General
 QCAT 6
17 Jan 2020