Queensland College of Teachers v DLJ
[2015] QCAT 413
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- Unreported Judgment
- Queensland College of Teachers v DLJ[2015] QCAT 413
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Queensland College of Teachers v DLJ[2015] QCAT 413
Queensland College of Teachers v DLJ[2015] QCAT 413
CITATION: | Queensland College of Teachers v DLJ [2015] QCAT 413 |
PARTIES: | Queensland College of Teachers (Applicant) |
v | |
DLJ (Respondent) |
APPLICATION NUMBER: | OCR325-12 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Gordon Dr Cullen, Member Member MacDonald |
DELIVERED ON: | 12 October 2015 |
DELIVERED AT: | On the papers |
ORDERS MADE: |
|
CATCHWORDS: | Teacher – whether suitable to teach – whether suitable to work in a child-related field – whether unacceptable risk of harm to children - violent incident outside teaching environment during psychotic episode in 2011 Education (Queensland College of Teachers) Act 2005, ss 7, 11, 12, 12A, 92(1)(h), 97, 158(1), 160(2) Queensland College of Teachers v MC [2012] QCAT 213 |
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]DLJ has been a registered teacher since January 1979 teaching science, chemistry and maths at the High School level.
- [2]In July 2010 DLJ stopped teaching when he went on sick leave. He has not taught since, apart from the times referred to below.
- [3]Whilst on sick leave DLJ had a psychotic episode. This resulted in an incident on 18 January 2011 when he stabbed his de facto wife in the stomach and in the leg with a kitchen knife. She needed surgical treatment in hospital to repair a laceration to the liver. He also stabbed his stepdaughter then aged 19 in the shoulder when she tried to intervene, and she also required treatment in hospital but was not detained.
- [4]
- [5]After the incident DLJ was committed to a secure mental health unit. Starting in July 2013 he was able gradually to return home overnight and from October 2013 he was permitted to do so for up to seven days a week. He was permitted to reside at his own home as from 26 September 2014 but the Forensic Order continued.
The application and previous orders
- [6]This matter comes to QCAT under section 97 of the Education (Queensland College of Teachers) Act 2005. That section provides that if the Queensland College of Teachers reasonably believes that a ground for disciplinary action against a teacher exists for a “general matter” then it must refer the matter to the Tribunal. The College of Teachers did so on 9 October 2012, alleging that DLJ was not suitable to teach, this being one of the general matters set out in the Act.[3]
- [7]In the material sent with the application to the Tribunal, the College of Teachers asked for a number of interim orders. One was that before resuming any teaching duties DLJ would be required to undergo necessary training. Another was to restrict him to half working time. An order was made by the Tribunal in those terms on 21 November 2012. At the time this order was made, DLJ was still in the secure mental health unit.
- [8]The College of Teachers did not suspend DLJ from teaching.
- [9]As a result therefore, DLJ was free to teach if he complied with the interim order and was physically able to do so. It appears that the College of Teachers was anticipating at that time that there may be an improvement in DLJ’s condition sufficient for him to return to teaching.
- [10]In August 2015 on two separate days he took classes in two different State High Schools as a supply teacher. He also did a small amount of after school and private tutoring work on a date before 10 March 2015. We note that he did not comply with the training requirements in the interim order.
- [11]There is a letter from the College of Teachers date stamped 27 April 2015 addressed to DLJ’s lawyers which said that the College was content for DLJ’s registration to be continued with a condition that his treating psychiatrist should confirm to the College every six months that DLJ is complying with his recommended treatment.[4]
- [12]The position of the College of Teachers has now changed. It now submits that DLJ’s registration for teaching should be cancelled altogether.[5]
The tests to apply
- [13]In this decision we have to decide whether DLJ is suitable to teach. This must be tested at the time we make our decision.
- [14]Sections 11, 12 and 12A of the 2005 Act set out the matters we must consider when deciding whether a person is suitable to teach. By section 12(1)(b) we must consider whether the person is suitable to work in a child-related field. By section 12A(1) we must consider whether the person poses a risk of harm to children. “Harm” is any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing.[6]
- [15]In cases such as this, the Tribunal has asked itself whether the teacher poses an unacceptable risk of harm to children when considering whether the teacher is suitable to teach and suitable to work in a child related field.[7]
- [16]If DLJ is not suitable to teach then it means that there are grounds for disciplinary action to be taken against him (as has been done in these proceedings) under section 92 of the Act. Under section 158(1), we have to decide whether or not this is the case as soon as practicable after finishing the hearing. We would then have a range of orders we could make as set out in section 160 of the Act.
The current position
- [17]The Forensic Order remains in place and it is reviewed every six months by the Mental Health Review Tribunal. While the order is in place, DLJ remains under supervision. He attends a clinic every week to see the treating team including a psychologist. He receives counselling and support on these visits. He also has psychiatric reviews every six weeks.
- [18]As for DLJ’s current condition, Dr Jill Reddan, consultant psychiatrist, made a report dated 17 March 2015 to the Tribunal pursuant to its order of 21 January 2015. We rely on that and also on DLJ’s own witness statement. There is also a clinical report dated 24 February 2015 signed by Richard Spence Thomas who is DLJ’s case manager and a clinical psychologist, and supported by Dr Linda Barron, treating psychiatrist, which was submitted to the Mental Health Review Tribunal for a review of the Forensic Order. Mr Spence Thomas has also written two letters submitted to us by DLJ’s lawyers.
- [19]DLJ’s psychiatric condition has stabilised. He says his psychosis has been in complete remission for almost 3 years and he is on regular medication.
- [20]DLJ accepts that he suffers from chronic depression. He describes himself as a life-long sufferer from this condition. Mr Spence Thomas says it dates back to 1992. This would be when DLJ was in his 30’s. It was controlled by medication and therapy and this condition alone would not make him unsuitable to teach.
- [21]The continuance of DLJ’s medication is central to maintaining his mental state and preventing a relapse of his psychotic symptoms.[8] He has engaged with the treatment regime and no fault can be found in this respect. He also has a robust support network in place including his family and friends.
Considerations
- [22]Whether or not DLJ is suitable to teach is informed by the risk of his depression relapsing into a psychotic state.
- [23]There is no doubt that it was a psychotic state that resulted in the violent incident of 18 January 2011. In late 2010 and in the days and weeks leading up to that incident, DLJ was off work with depression but in the later part of the period developed progressive symptoms of psychosis, paranoia with persecutory beliefs and delusions which caused him to behave in the way he did. There were documented stressors in his life, actual or perceived, which triggered that episode. He was not at work as a teacher however, so he was not facing stressors from work as a teacher as well those documented stressors.
- [24]Dr Reddan states that there is always a risk of a relapse resulting in a significant depressive disorder particularly where there have already been several episodes. Taking into account the stressors of teaching the risk of a relapse was low to moderate, but the risk of harm to children was low.[9] The shift into a psychotic form of that disorder was much less likely and even if it did occur it was not inevitable that violence would recur. Mr Spence Thomas in the report for the Forensic Order review is of the view that DLJ is “vulnerable to stressors”.[10] We take into account that teaching can be stressful.
- [25]We conclude that if DLJ returns to teaching there is a low to moderate risk of a relapse into a significant depressive disorder at some time, and a much lower risk of a relapse into a psychotic state. Whilst there is a risk of a relapse into a psychotic state however, we are of the view that it is an unacceptable risk unless some means can be found to deal with it before it could pose a risk of harm to children.
- [26]In this respect, DLJ seeks to assure the Tribunal that having gone through the experiences that he has over the last five years, he is in a good position to identify the signs of an inability to teach. He puts forward a teacher friend who acts as a mentor, who is willing to keep him observed and report any adverse signs, and also he points to regular and frequent assessment by the mental health teams.
- [27]It is submitted on DLJ’s behalf that the close supervision and monitoring under the Forensic Order reduces the risk that a relapse would be overlooked. This is supported by a letter from Mr Spence Thomas.[11] He says that the Forensic Order ensures that any relapse or slip with his mental health would be identified and treatment and support would be increased as required. Mr Spence Thomas is confident that if DLJ’s condition deteriorates, the seriousness of this would not be missed as it was in 2011. Dr Reddan also supports the view that because of the intensive psychiatric supervision, any deterioration in his mental state would be detected earlier than in the past.[12]
- [28]The difficulty with the submission made on behalf of DLJ is that the deterioration in 2011 into a psychotic state happened quickly and the violent incident happened despite medical services being involved in his treatment. The events are catalogued in the report of Dr Kevin Calder-Potts a psychiatrist who prepared a report for DLJ in the criminal proceedings[13] and by Dr Reddan[14]. There is also information about the appointments DLJ attended before the incident in a clinical report of Dr Carrick Anderson.[15]
- [29]These show that DLJ had been off work for the six months prior to the incident with depression. Over that time he saw his general practitioner a number of times, and was given different forms of anti-depressant medication. He attended three sessions at a relaxation centre, and attended Prince Charles Hospital twice. In the two weeks prior to the incident when his condition was deteriorating he again saw his GP, he saw his psychiatrist twice and attended Prince Charles Hospital again. Over this time there were signs of paranoia emerging. On the day before the incident DLJ saw his former GP and he also saw his psychiatrist again in a pre-arranged appointment. Mr Spence Thomas refers to this time in his letter, saying that the seriousness of DLJ’s condition at that time was missed by the medical services who saw DLJ.[16]
- [30]The rapidity of the deterioration in DLJ’s mental state in 2011 and the fact that its seriousness could be missed by those medical services, means that to accept the submission now made on behalf of DLJ, the Tribunal would need to have a high level of confidence that:-
- DLJ’s insight into his mental state was sufficient for him to appreciate a change in his mental state, that he would report it or it would otherwise be identified; and
- that if that happened something would then be done to ensure that if he were teaching, no child would be at risk of harm.
- [31]As for DLJ’s level of insight and likelihood of reporting any change in his mental state, there are doubts about this. In her report, Dr Reddan noted that DLJ had very little understanding of any early warning signs of a relapse in his condition, and he had extremely poor understanding of whom he should contact or what he should do if he began to relapse.[17] Mr Spence Thomas expressed a similar view in the report for the Forensic Order review. He stated that DLJ’s insight into mental illness was “partial” and his “understanding of relapse signs and strategies he can utilise to maintain his wellness are still developing”.[18]
- [32]Even if we were satisfied that if the warning signs were there that DLJ would report them to his treating team or that otherwise the signs would be identified by the team, the Tribunal would need to be satisfied that something could then be done quickly to remove DLJ from the teaching environment to avoid risk to children.
- [33]It is very difficult to find a reliable mechanism to achieve this. For example, the Tribunal cannot require the mental health team to inform the College of Teachers if such a relapse occurs and to advise it to suspend DLJ’s permission to teach. Even if this could be ordered, the College of Teachers could only suspend DLJ from teaching if it reasonably believed that he posed an imminent risk of harm to children and such a suspension was necessary to protect them.[19] The requirement for reasonable belief means that there could be delays before such action could be taken, except in an obvious case.
- [34]It is submitted on DLJ’s behalf that a condition on his continued registration might be that he must comply with the conditions of the Forensic Order in order to continue to teach. We do not think in itself this is sufficient, because we cannot be satisfied that the current order will continue and even if it did that the current close monitoring and supervision will continue under that order. We cannot be satisfied that if such close monitoring and supervision does continue that it is sufficient to catch a rapid deterioration in DLJ’s condition as happened in 2011.
- [35]We also think that it would be insufficient to reduce the risk to an acceptable level for the College of Teachers to receive confirmation every six months that DLJ was complying with his recommended treatment.[20] Even if such confirmation were required more frequently we do not think it would provide a sufficient and reliable early warning system to reduce the risk to acceptable levels.
- [36]Although DLJ only did a small amount of teaching work in 2015, the fact is that he did not comply with the interim order by retraining as was required in that order before doing so. We also agree with the submission of the College of Teachers that DLJ should have been aware that he needed a Blue Card for the private tutoring that he did at that time. At the very least he should have enquired whether he needed one.
- [37]These things tend to demonstrate a failure to engage in the process required for him to return to teaching and suggest that he is not yet ready to do so.
- [38]We are also concerned that DLJ’s teaching skills have slipped to the extent that he will need to undergo training before he is fit to teach, for the reasons expressed in the College of Teachers’ submissions. For this reason we consider that it is appropriate to order that a notation be entered on the register requiring appropriate training before he is permitted to teach.
Conclusion
- [39]It is our finding therefore that DLJ is not suitable to teach. It follows that there are grounds for taking disciplinary action against him under section 92(1)(h) of the Act.
- [40]When considering what disciplinary action should be taken against DLJ in the light of our findings we remind ourselves that the aim is to protect the public rather than to punish the teacher. Since there appears to be no available reliable mechanism to achieve that in this case, we have no alternative but to cancel DLJ’s registration as a teacher under section 160(2)(d) of the Act.
- [41]We are able to prohibit DLJ from reapplying for registration or permission to teach within a stated period from the date of our order or indefinitely, however we think in this case this is inappropriate. This is because of the fluctuating nature of psychiatric conditions. DLJ may be well enough to apply at some time in the future and we cannot say when this would be likely to happen if it does happen.
- [42]However we do think it is right to set certain minimum requirements[21] before DLJ can apply again for registration as a teacher, as set out in our order.
- [43]We also consider that it is necessary to make a non-publication order in this case[22] to avoid endangering the mental health of DLJ.
Footnotes
[1]Under section 267(1)(a) of the Mental Health Act 2000 (Qld).
[2]Under section 288 of the 2000 Act.
[3]In section 92(1)(h) of the 2005 Act.
[4]Exhibit “RH3” to submissions dated 3 September 2015.
[5]Submissions received on 28 August 2015.
[6]Section 7 of the 2005 Act.
[7]For example, Queensland College of Teachers v MC [2012] QCAT 213.
[8]Page 12 of Mr Spence Thomas’s report.
[9]Combined effect of the answers to questions a and e in the report of 17 March 2015.
[10]Page 11.
[11]Dated 27 July 2015.
[12]Page 10 of the report of 17 March 2015.
[13]Page 5 of the report of 21 February 2011.
[14]In her earlier report of 24 April 2012.
[15]Page 3 of the report dated 19 March 2014 produced for the Mental Health Review Tribunal.
[16]Letter of 27 July 2015.
[17]Page 5 bottom paragraph Dr Reddan’s report of 17 March 2015.
[18]Page 11 middle paragraph.
[19]Section 49 of the 2005 Act.
[20]As suggested by the College of Teachers in its letter of 27 April 2015.
[21]Under sections 160(2)(h) and 160(2)(i) of the Act.
[22]Under s 66(2)(b) of the QCAT Act.