Stitt v Chief Executive Officer Public Safety Business Agency
[2015] QCAT 257
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- Unreported Judgment
- Stitt v Chief Executive Officer Public Safety Business Agency[2015] QCAT 257
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Stitt v Chief Executive Officer Public Safety Business Agency[2015] QCAT 257
Stitt v Chief Executive Officer Public Safety Business Agency[2015] QCAT 257
CITATION: | Stitt v Chief Executive Officer Public Safety Business Agency [2015] QCAT 257 |
PARTIES: | Michelle Stitt (Applicant) |
v | |
Chief Executive Officer Public Safety Business Agency (Respondent) |
APPLICATION NUMBER: | CML 026-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 17 June 2015 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 26 June 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | CHILDRENS MATTERS – BLUE CARD – REVIEW – where applicant seeks a review of the decision to issue a negative notice – whether exceptional case exists – where offence of common assault against a disabled person – whether not in the best interests of children to issue a positive notice - whether a restricted or conditional positive notice can be issued NON-PUBLICATION ORDER – where contrary to the public interest to identify names of the disabled persons Working with Children (Risk Management and Screening) Act 2000 (Qld), ss 5, 6, 221, 226, 354, 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 24, 66 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, followed Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, followed |
REPRESENTATIVES:
APPLICANT: | Michelle Stitt represented by Janice Crawford of Counsel |
RESPONDENT: | The Chief Executive Officer represented by Mr Peter Reid Solicitor |
REASONS FOR DECISION
- [1]Michelle Stitt has always had an interest in animals. She cares for her own horses and her other hobby is breeding chickens. These interests provide support and friendship for her, also allowing her to contribute by helping others.
- [2]Ms Stitt wants to re-join a pony club and be able to give riding lessons to children. She says she has been approached to do this and would feel isolated from her friends if she were unable to be involved.
- [3]She requires a blue card to work with children. Ms Stitt applied for the blue card. On 14 January 2015 the Deputy Chief Executive Officer of the Public Safety Business Agency (PSBA) advised her that he decided to issue her with a negative notice meaning she would not receive a blue card. Ms Stitt has applied to this tribunal to review this decision.
- [4]
- [5]Ms Stitt was convicted in the Magistrates Court on 29 November 2007 of the offence of common assault. No conviction was recorded.
- [6]The assault conviction arose from an incident in a park where a man who has a mental illness and is non-communicative was observed by onlookers to appear to be yelled at, shoved and slapped by a woman who appeared to be angry and agitated. The disabled man appeared to the onlookers to be distressed. The woman was identified as Ms Stitt and the man was a client of Disability Services Queensland in her care as an employee of a sub-contractor to DSQ. Ms Stitt was providing lifestyle support services to the man.
- [7]In subsequent interviews and submissions to the hearing in the Magistrate’s Court and to this tribunal, Ms Stitt denies yelling at the man in an angry or agitated state and suggested that witnesses confused waving her arms near the man with actually striking him. She says she had never touched the man on any occasion, even in an affectionate manner, as he did not like being touched because of his illness.
- [8]Ms Stitt was convicted after a summary trial and submits that the court brief (QP9) does not reflect the facts on which the conviction was based. Ms Stitt says if the facts had been found as alleged in the court brief, the expected imposed penalty would have been more severe. She says she was advised that shouting and waving her arms could amount to common assault.
- [9]Ms Stitt says the factual findings of the Magistrates are unknown to her as she does not have a transcript of the findings in relation to the conviction. She was present in court when the decision was handed down but cannot recall why the decision was made. She submits any comments by anyone else are speculative only and potentially inaccurate.
- [10]Ms Stitt says she is not seeking to minimise her responsibility for her conduct.
- [11]Ms Stitt remained employed as a support worker after assessment by a psychologist who recommended that her employment continue.
- [12]Ms Stitt was also involved in a Coronial Inquest into the death on 4 June 2009 of a disabled man SJL who was in her care. The Coroner made no formal recommendations at the conclusion of the Inquest finding that the man “died at the residence of Ms Stitt after falling on to a pot plant and said to be having an epileptic seizure. Resuscitation attempts were unsuccessful”. The Coroner found the cause of death to be “chest injuries, autism and epilepsy”[4].
- [13]In evidence to the Coroner, Ms Stitt says she cared for SJL for about 6 years prior to his death and was very fond of him. The Coroner found this to be a care arrangement of mutual satisfaction to all parties and that SJL enjoyed his time with Ms Stitt. In the later years, there was a private arrangement with SJL’s parents that he would increasingly stay overnight with Ms Stitt. She was not paid for this time and her employer did not know this was occurring. It was against the policy of her employer and Ms Stitt and SJL’s parents colluded to change time sheets so that the overnight stays were not recorded[5].
- [14]
- [15]Ms Stitt says she ceased work in the disability area after the Inquest as she lost her confidence in her aptitude for disability support work for a while after the Inquest and has not worked in that field since. In 2013 Ms Stitt completed the theoretical component of a certificate course in aged care.
- [16]Under the Working with Children Act, even though Ms Stitt has been convicted of an offence, a positive notice must be issued to her unless the tribunal considers that the facts of the case give rise to an exceptional case in which it would not be in the best interests of children for a positive notice to be in place. This is because the offence of which Ms Stitt was convicted is not a serious offence[8].
- [17]The Act does not provide a definition for “exceptional case”. However guidance has been provided in past matters on how to decide if the facts give rise to an exceptional case. In Commissioner for Children and Young People and Child Guardian v FGC the appeal tribunal stated that "exceptional case" must be considered in the context of the legislation which contains it, the intent and purpose of that legislation and the interests of the persons whom it is designed to protect [9]. It said the term is in common use and should be considered without any special meaning or interpretation[10].
- [18]Further guidance to deciding if there is an exceptional case is provided by the Queensland Court of Appeal in Commissioner for Children and Young People and Child Guardian v Maher & Anor[11] where the Court looked at the risk and protective factors as determined by the evidence in that case.
- [19]Section 226 of the Working with Children Act also provides factors this tribunal must have regard to in deciding if this is an exceptional case bearing in mind the object of the Act is to “promote and protect rights, interests and wellbeing of children and young people in Queensland”[12].
- [20]Section 226(2) requires this tribunal to consider the conviction, when the offence took place, the nature of the offence and its relevance to child related employment, the penalty imposed, and anything else about the commission of the offence that is reasonably relevant to an assessment of the applicant for child related employed.
- [21]Is this an exceptional case in which it would not be in the best interests of children for a positive notice to be in place? Ms Stitt’s submissions in regard to the protective factors are as follows:
- She is deeply sorry for her conduct in relation to the assault conviction;
- She made a full and frank disclosure of her involvement in the Coronial Inquest – a matter she says which may not have come to the attention of the decision maker or this tribunal otherwise, to demonstrate that she is an open and honest person;
- She was experiencing high personal stress at the time of the assault and the death of SJL as her marriage was breaking down. Ms Stitt has since permanently separated from her former husband;
- Her employment history demonstrates she has previously worked reliably and diligently and that she is a trustworthy and responsible person. She has always had good working relationships with her co-workers and employers and consistently provided safe and nurturing care for her clients;
- She was very saddened by the death of SJL and also regrets her part in keeping his extended care at her home hidden from DSQ;
- Ms Stitt accepts that she did not manage the challenges of the assault complainant appropriately but that she has learned to recognise personal stressors and triggers in counselling and that she must seek help from others;
- She was allowed to continue her DSQ employment after the conviction;
- The Coroner recognised misleading her employer by SJL staying overnight was a difficult situation where the family asked her to take SJL more frequently but that this was a private arrangement. Ms Stitt fully accepts she should have discussed the arrangement with her employer and that client care is the primary concern and responsibility;
- Ms Stitt denies the time sheets were “falsified” as she did not claim payment for the extra hours but she accepts it reflects poor judgment and was in breach of her employment contract not to inform DSQ of the additional requests of the family;
- She understands why there may be concerns about her working with children but that these concerns are mitigated by her engagement with a counsellor, her frank disclosures, the passage of time (7 years) and the absence of any re-offending;
- She says she poses no threat to children and that the assault was an aberration – one of only two incidents in 7 years of working with adults with serious disabilities;
- No domestic violence situations will arise in the future;
- The two concerning incidents were over 5 years ago;
- Ms Stitt has been in counselling for approximately 2 years and personal strategies have been developed to deal with stress, frustration and anger and to foster tolerance and effective communication;
- She accepts a limited blue card cannot be issued but despite the two incidents with seriously disabled men, it does not logically follow that she would present a risk to children and she had no history in that regard.
- [22]Finally Ms Stitt says demonstrated rehabilitation should not be an impossible task and she has made significant steps in her personal development. She is now insightful and resilient and determined to help others. The offence was not directed at children and it has been 5 years since the offending conduct.
- [23]Dr Elaine Ho is Ms Stitt’s psychologist. She says Ms Stitt has made good progress in therapy with improved depressive symptoms, insight and increased assertiveness. Dr Ho lists the preventative measures Ms Stitt would make if granted a positive notice with changes to her relationship with any employer and asserting herself around clients and their families.
- [24]Dr Ho says the only relevant information she has about current risks working with children was that Ms Stitt has had a friend and her children residing with her for a few months with no issues or concerns raised. This is because the therapy sessions focused on Ms Stitt’s anxiety and interpersonal issues raised by her in the sessions. Dr Ho was provided with copies of the reasons for the negative notice and the submissions to this tribunal before she wrote her report.
- [25]Dr Ho recommends that Ms Stitt working with children be objectively assessed by a third party who specialises in this area as her role as a therapist does not allow this to happen.
- [26]Ms Stitt provides three personal references. The first is from Christine Carter who has known Ms Stitt for 10 years and writes her reference knowing of the assault conviction and the death of SJL. Ms Carter believes Ms Stitt is a suitable candidate for a blue card and she has no problem with Ms Stitt being involved with her children or any children over the 10 years she has known her. Ms Carter says she has not seen or heard of Ms Stitt disrespecting or causing any type of harm to any children.
- [27]The second is from Mr Michael Bleathman who has known Ms Stitt for 31 years and writes his reference knowing of the assault conviction and the death of SJL. Mr Bleathman says Ms Stitt has always been caring, loyal, reliable and trustworthy. He believes Ms Stitt is suitable to work with children.
- [28]The third is from Ms Suzanne Kanofski who has known Ms Stitt for 20 years and writes her reference knowing of the assault conviction and the death of SJL. Ms Kanofski says Ms Stitt is a caring, honest, helpful, loyal and happy person who has been patient, understanding and loving towards Ms Kanofski’s children and any other children. Ms Kanofski highly recommends her working with children.
- [29]All three referees were highly supportive of Ms Stitt being issued with a positive notice.
- [30]At the hearing, the Chief Executive’s representative submitted that the risk factors outweighed the protective factors such that a positive notice should not be issued as it would not be in the best interests of children. The risk factors were submitted as follows:
- Although the offence is not a serious or disqualifying offence, the legislation intends that all offences be taken into account;
- Ms Stitt has a conviction for common assault upon a man who was disabled and required full time care. He was non-communicative which placed him in a situation where he was highly vulnerable and the power imbalance was in Ms Stitt’s favour;
- The assault was unprovoked and appears to have been triggered by Ms Stitt’s frustration with the man not adhering to her directions. The material indicated that Ms Stitt behaved inappropriately in the circumstances and caused the man distress;
- The offence arose in the context of Ms Stitt’s employment as a care worker for adults with intellectual and physical disabilities. Ms Stitt was entrusted with the care of some of the most vulnerable members of the community and her conduct breached the position of trust, authority and responsibility;
- Although a non-conviction was recorded, Ms Stitt was found guilty and this finding indicates the court found her actions constituted an assault;
- Ms Stitt was 44 at the time of the assault and had been a disability work for approximately 5 years. It is reasonable to expect she would have had training or strategies in place to work with disabled persons in difficult circumstances without resorting to violent or intimidating behaviour;
- Transferability of the blue card across all areas of employment and business regulated by the Act is of significant concern given Ms Stitt’s criminal history.
- [31]Mr Reid further submitted that little weight should be given to the report of Dr Ho as there was no assessment of Ms Stitt’s ability to work with children and the report focused on the therapy that Ms Stitt was then undertaking regarding her ongoing self-esteem issues and coping mechanisms for stress and depression. Mr Reid submitted that Dr Ho’s oral evidence added very little to her report and that although Ms Stitt’s self-confidence had come a long way it was insufficiently advanced to issue a positive notice.
- [32]Mr Reid conceded that Ms Stitt’s goal to work in the aged care sector was still a long-term aim. He submitted this remains an exceptional case and the original decision of the Deputy Chief Executive Officer should be confirmed.
Discussion
- [33]Ms Stitt presented as a person who had, through the therapy process, gained insight into her need to set boundaries with other people and to say “no” where it was appropriate and in her best interests. She accepts that her previous low self-esteem meant that she put other people’s needs before her own and that this led to her taking on too much or caring in inappropriate circumstances. She didn’t see the damage this was causing to her own ability to cope. She understands now she overstepped the boundaries in caring for SJL. She will never bring her work home again and will always work in a supported environment away from her home where she is covered by supports such as public liability insurance for herself and any clients. Ms Stitt says she no longer wants to work with people with severe challenging behaviours.
- [34]Ms Stitt sees working at the pony club as assisting to increase her self-esteem and therapy.
- [35]Although Ms Stitt has clearly come a long way since ceasing disability support, she presented at the hearing as still being “fragile” in some areas, for example, Ms Stitt acknowledged that the refusal of a positive notice was a blow to her self-confidence.
- [36]It is also of concern that the inability to set clear boundaries or to understand that boundaries were needed led her to:
- acquiesce to care for SJL when the facilities were not completely appropriate for continual overnight care;
- hide the truth of this extended care from her employer even though she was not being paid for the time;
- hide the truth because she knew the employer would object to the overnight stays;
- not put the care of SJL paramount in her decision making.
- [37]Of added but lesser concern to this tribunal is that Ms Stitt still does not accept that version of events as described by the witnesses in the assault conviction. This tribunal must accept and cannot go behind the conviction and without the reasons as found by the Magistrate, little weight can be given to either version of events. This tribunal does acknowledge the conviction but is satisfied that on either version of those events in 2007, this conduct by Ms Stitt appears to have been an aberration on an otherwise caring and supportive relationship she had with a number of severely disabled men in her care over a long period. This view of Ms Stitt is supported by the comments of the Coroner in similar terms[13].
- [38]This review is conducted on the basis that the welfare and best interests of a child are paramount. Ms Stitt has made it clear that her pony club work will only ever be undertaken at the pony club where children, their parents and other club officials will always be in attendance. She will never conduct private lessons at her home. Overall, if I could restrict Ms Stitt’s positive notice to a blue card under those conditions, I would be satisfied that she should receive a restricted positive notice.
- [39]I would be satisfied that with those restrictions, this is not an exceptional case in which it would not be in the best interests of children for a positive notice to be in place.
- [40]However, both legal representatives at the hearing submitted that I cannot make such an order and that a blue card is unrestricted and wholly transferable. The Working with Children Act is silent on the issuing of a positive notice with restrictions. In the absence of any such prohibition, it is potentially arguable that s 114 of the QCAT Act allows this tribunal to impose conditions on the decision it makes that the tribunal considers appropriate for achieving the purpose for which the tribunal may exercise the primary power.
- [41]Counsel for Ms Stitt urged me to not consider such an alternative for her client saying that a decision to allow a restricted positive notice would result in an appeal and further uncertainty and stress visited on Ms Stitt. Because I view Ms Stitt as not completely self-assured, I accept the force in this submission.
- [42]If, as suggested by the submissions, I am limited to an “all or nothing” view of a positive notice, my concern for Ms Stitt is that she still requires considerable therapy to bolster her self-esteem and to ensure that appropriate boundaries are set. She continues to need the personal strength to say “no” when necessary and to avoid stress that will lead to anxiety and or depression resulting in decisions which potentially may not be in the best interests of children.
- [43]I am not satisfied there is sufficient evidence before me to accept that Ms Stitt is currently robust enough to withstand all of the possible stressors of an unrestricted positive notice.
- [44]That is not to say she will not have such personal strength in the future. Ms Stitt has demonstrated personal development which she hopes will continue with professional support and support from good friends. She will be able to apply for another positive notice in two years.
- [45]I am satisfied that at this point of Ms Stitt’s personal development, the risk factors in issuing her with an unrestricted positive notice outweigh the protective factors and that due to this, the correct and preferable decision is that an exceptional case exists, such that a positive notice cannot not be issued.
- [46]I am of the view however that circumstances such as I have found in this matter are a compelling case to highlight the need for something other than the current “all or nothing” view of a positive notice. There would be greater flexibility and decisions that are truly the “correct and preferable decision” if the original decision maker and on review, this tribunal, was able to issue a restricted or conditional positive notice. This may involve a legislative amendment but in my view this is merited to provide greater justice in more circumstances.
- [47]The decision of the Deputy Chief Executive Officer of 14 January 2015 to issue Ms Stitt with a negative notice is confirmed.
Non-publication
- [48]Under section 66 of the QCAT Act, the tribunal can make a non-publication order to prohibit the publication of information where it would be in the interests of justice.
- [49]Ms Stitt makes such an application in regard to herself, the disabled adults and her referees, saying that there is sufficient information in the public domain already.
- [50]Both legal representatives agreed that such protection should be afforded to the vulnerable disabled men who have been in Ms Stitt’s care in the past. I agree and so order.
- [51]However I am not comfortably satisfied that such protection should also be afforded Ms Stitt and her referees. There are obvious reasons in the interests of justice other than personal discomfort, why a non-publication order should be made. This matter differs from the comments of the Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC[14] in that convictions have been recorded against Ms Stitt. A non-publication order will not be granted to Ms Stitt and her referees.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 354.
[2] Ibid ss 6 and 360.
[3] QCAT Act s 24.
[4] Findings of Inquest into the Death of SJL dated 28 March 2013 at p 22.
[5] Ibid at paras 76 to 77.
[6] Ibid at paras 73 and 75.
[7] Ibid at para 80.
[8] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
[9] [2011] QCATA 291 at para 31.
[10] Ibid at para 33.
[11] [2004] QCA 492.
[12] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.
[13] Findings of Inquest into the Death of SJL dated 28 March 2013 at Para 112 page 19.
[14] See footnote 9 at para 14.