HLS v Chief Executive Officer, Public Safety Business Agency
[2015] QCAT 508
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- Unreported Judgment
- HLS v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 508
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HLS v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 508
HLS v Chief Executive Officer, Public Safety Business Agency[2015] QCAT 508
CITATION: | HLS v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 508 |
PARTIES: | HLS (Applicant/Appellant) |
v | |
CHIEF EXECUTIVE OFFICER, PUBLIC SAFETY BUSINESS AGENCY (Respondent) |
APPLICATION NUMBER: | CML 038-15 |
MATTER TYPE: | Childrens matters |
HEARING DATE: | 18 September 2015 and 28 October 2015 |
HEARD AT: | Toowoomba |
DECISION OF: | Member Wood |
DELIVERED ON: | 10 December 2015 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Application for Removal of Negative Notice – Applicant has convictions for significant offences involving drugs and dishonesty – none of the offences “serious offences” – the Applicant issued with a negative notice – whether an exceptional case exists – whether protective factors outweigh the risk factors. Working With Children (Risk Management & Screen Act) 2009 (Qld) – Sections 5, 6, 221, 226 & 360. Queensland Civil and Administrative Tribunal Act 2009 (Qld), Section 66 Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28 Commissioner for Children and Young People and Child Guardian V Maher and Another [2004] QCA 492 TAA [2006] QCST11 |
APPEARANCES and REPRESENTATION (if any):
APPLICANT: | Self Represented |
RESPONDENT: | Ms Natalie Taylor, Solicitor Public Safety Business Agency |
REASONS FOR DECISION
- [1]On the 13th January 2015 in the Magistrates Court the Applicant pleaded guilty to 57 charges and was sentenced to a period of imprisonment for 1 year with the term wholly suspended for an operational period of 2 years. The 57 charges were 19 charges each of stealing by Clerks and Servants, Possessing Dangerous Drugs and False Entry in a Record.
- [2]The offences were committed while the Applicant was employed as a Nurse by stealing Fentanyl, Morphine and Pethidine being S8 Dangerous Drugs. In order to do so she falsified entries in the S8 register relating to non-existent patients or patients for which the stolen drugs were not prescribed. In order to conceal the behaviour the Applicant forged signatures of other nurses and falsified records. This behaviour occurred on 19 separate occasions between the 25th October 2013 and the 27th November 2013. The Applicant would take ampoules of the drugs and on returning home would use some of the ampoule stolen herself and would then dispose of any unused amount. As a result of an internal review at the Hospital the Applicant’s employment was terminated on the 29th November 2013.
- [3]This pattern of behaviour was not the first occasion on which the Applicant had taken S8 drugs during the course of her employment as a Registered Nurse. In 2009 the Applicant suffered an exacerbation of back pain and was suffering from stress which led to her obtaining and misusing morphine and midazolam. HLS had used the drugs via intravenous route and developed a physical dependence on them. When HLS presented for treatment this lead to a notification to the then Nursing Council of Queensland and HLS undertook a period of voluntary suspension and alternative employment. During this period of suspension HLS was treated by a General Practitioner and had a “few” visits to a local psychiatrist. HLS was not reviewed by a substance abuse specialist but did attend ATODS and was subject to random urine drug screens as part of a return to work condition.
- [4]HLS returned to work at a regional private hospital in December 2012 with conditions attaching to her nursing registration.
- [5]The Applicant was born on the 11th March 1976 and married CLS in April 2009. During the period of suspension gave birth to her daughter in March 2012. In addition during the period of suspension the Applicant’s husband commenced his own business.
- [6]On return to work the Applicant was working a 0.8 position of approximately 7 shifts a fortnight, mainly late shifts. In addition she was undertaking the bookwork for her husband’s business. In May 2013 after falling down stairs and injuring her back the Applicant sought treatment and was prescribed Panadeine Forte for pain. Shortly thereafter she commenced over the counter panadeine and over time increased her use of codeine based pain killers to manage pain and later to decrease anxiety and stress. She had difficulty ceasing the use of codeine during this period suffering physical side effects and withdrawal symptoms. She sought advice from Dr S a substance misuse specialist. She was diagnosed as suffering from opioid and benzodiazepine dependence in sustained remission. This review was undertaken for the purposes of her nursing registration and she was permitted to practice in nursing subject to an undertaking that she consult a pain specialist for assessment and management of chronic lower back pain. She was later in 2013 treated by her General Practitioner for low mood, increased anxiety and prescribed escitalopram 10mg a day which was subsequently changed to Pristiq 50mg.
- [7]On reflection the Applicant was able to recognise that at the time of her offending behaviour she was over worked and unable to properly function given her combination of responsibilities as a Nurse, fulltime mother and required to assist in her husband’s business. The unlawful drug use allowed her to sleep and after each use she returned to work with a plan not to repeat the theft or relapse but opportunistically she would then commit further offences. On the 5th November 2013 the Applicant voluntarily admitted herself to a Private Rehabilitation Hospital where she sought treatment from Dr MA, a Consultant Psychiatrist and specialist in substance misuse.
- [8]The Applicant remained an inpatient there until the 14th November 2013 when she left due to financial constraints and the need to return to work. This period of admission on the evidence was suboptimal. Unfortunately she then returned to work and committed further offences until the termination of her employment on the 29th November 2013.
- [9]Apart from the drug use in the course of her employment the Applicant does not have any history of drug use or other criminal convictions. The Applicant had a pleasant childhood with her parents being in the RAAF. The Applicant is an only child. When the Applicant was 10 years of age her Father retired from the RAAF moving to a regional area of Queensland where they continue residing. The Applicant attended private schools for her high school years and it appears was a good student. The Applicant commenced a Bachelor of Town Planning at University but decided she did not wish to pursue a career in Town Planning. She then worked in part time jobs mainly in retail enjoying an active social life but some years after quitting university the Applicant became depressed as she did not have any life goal. At this time she returned to her parents’ home and undertook psychiatric treatment. It took her 3 years to return to a good state of mind when she decided to study nursing. She subsequently completed a Bachelor of Nursing graduating with distinction and obtained employment in the private hospital where she undertook her graduate year. She has now voluntarily surrendered her registration as a Nurse.
- [10]The Applicant applied for a Blue Card in order to allow her to undertake cleaning work at a School. She is currently working 8 to 12 hours per week as a receptionist at an Optometrist, where she works every second Saturday and every second Thursday. There is a possibility of more work as a “fill in”. In addition she spends 6 hours a week doing book work for her husband’s business. In terms of her future employment she is content with the reception work and cleaning.
- [11]The Applicant continues to actively engage with Dr MA and has done so since her admission to The Private Hospital on the 5th November 2013. She was quite open and honest in her evidence about her behaviour both in 2009 and 2013. She admitted her involvement in the offending behaviour which she said occurred as she felt that she was not coping and that she did not recognise that she needed greater assistance. She confirmed that the referral to The Private Hospital was at her instigation. She gave evidence that the relationship with her husband was extremely strained as a result of the behaviour both in 2009 and 2013 but as a result of the treatment and development of insight into her behaviour she now is able to tell her husband about her feelings and is now using strategies to avoid relapse. Her husband is also now aware of her early warning signs. She says that mindfulness is the most useful tool for her.
- [12]She accepts that her 2013 drug use most probably impaired her ability to care for her child and was aware that her husband would have to look after her child. She assessed the risk as minimal as the primary effect of the drug use was a deeper sleep. She accepted that she could apply in future for registration as a Nurse but has no intention of returning to work as a Nurse. She still feels that nursing would pose a risk of a relapse to drug use given the accessibility to drugs. She gave evidence that she has had many stressors in her life since the loss of her employment including the criminal offences, these proceedings, financial stressors as a result of the loss of employment and her husband commencing his new business and personally a friend of hers having chemotherapy for breast cancer. She was able to identify her early warning signs of depression and when she feels she is becoming unwell she uses mindfulness, relaxation and talks to her husband.
- [13]She confirmed that she is highly motivated to remain free of drugs for her family and her daughter. The period of abstinence on this occasion is close to her longest period of abstinence, the only longer period was when she was pregnant.
- [14]In addition to monthly appointments with Dr MA she attended a 13 week drug and alcohol rehabilitation course which was each Thursday from 9:30am to 2:30pm at the Private Hospital in Brisbane. She is able to identify her support network including her husband, her General Practitioner and Dr MA. Her parents are aware of her drug use and she feels they are an important part of her support network. Her parents are not aware of the criminal convictions.
- [15]The Applicant’s husband also gave evidence. He had not read the reasons document published by the Respondent but was aware of the Applicant’s drug use and the outcome of the Court case. He noticed a behavioural change in the Applicant when she was using drugs but his wife was trying to keep her drug use a secret from him. At the time that he became aware of the drug use he lost trust for his wife and it has taken time to rebuild it. He was concerned that if his wife was using drugs and caring for his daughter that she would not be “with it”. He feels however with the continued treatment and abstinence from drugs that everything is “back to normal” and that trust has been rebuilt. He now has a greater knowledge of drug use and its effect and when asked whether he felt safe and whether he trusted his wife fully with children he responded that it was “not a problem at all”.
- [16]Dr MA gave evidence in the proceedings and provided a Report that he had prepared primarily for the criminal proceedings supplemented by emails in relation to the Blue Card.
- [17]Dr MA is a Consultant Psychiatrist with extensive experience in Forensic Psychiatry and a specialist in substance misuse. He gave evidence that the Applicant has looked at her behaviour and her illness and now self manages her own stress level. He was very clear in his views that the Applicant does not pose a risk to others now that she is engaged in treatment and is removed from workplace stress. She has expanded her social groups and social influence and is now working in a supportive and caring environment. She has good insight into her illness. His view is that the drug use was secondary to the primary problem which was untreated depression as a result of the circumstances in which the Applicant found herself. He believes that the Applicant has good insight both into her drug use and her depression and that as a result the risk of relapse to drug use is probably “very low” given the length of abstinence and the development of insight. Her mental health is now stable and has been very resilient given the stressors that she endured recently.
- [18]When asked about the Applicant continuing to have cravings Dr MA also found some comfort in the fact that the Applicant was able to deal with those cravings and engage in distraction techniques to overcome them. He took this opportunity in his evidence to observe that the Applicant was not a typical drug user as evidenced by the fact that she was disposing of the unused portion of the ampoules of drug that she had stolen rather than secreting it for future use.
STATUTORY FRAMEWORK
- [19]The Applicant was previously issued with a Positive Notice and Blue Card on the 20th July 2006 and the 24th September 2009. The Applicant made Application for a Blue Card most recently on the 20th July 2014 in order to enable her to undertake paid employment in schools. On the 28th January 2015 the Applicant was issued with a Negative Notice. In making that decision the Respondent did not have the benefit of any submissions made by the Applicant who did not take advantage of the invitation to make them.
- [20]The Respondent considered the Application prior to the Applicant entering a plea of guilty to the charges against her. Notwithstanding that none of the offences were “serious offences” as that term is defined and therefore a Positive Notice must issue unless it was satisfied that it was an exceptional case in which it would not be in the best interests of children to be issued with a Positive Notice[1]. The Respondent was of the view that it was an exceptional case and issued the Negative Notice.
- [21]The term ‘exceptional case’ is not defined in the legislation. The Working With Children (Risk Management & Screen Act) 2009 (Qld) (‘WWCRMSA’) sets out criteria which must be considered when determining when there is an exceptional case[2] however the Tribunal must exercise its discretion in each case within the parameters of the legislation[3].
- [22]There is no onus on either party to convince the Tribunal of their position and the Tribunal is required to determine whether an exceptional exists or not without any party bearing the onus of proof that an exceptional case exists[4].
- [23]In the event that the Applicant was to be issued with a blue card then that blue card is transferable for all purposes. The Tribunal is unable to place any conditions upon the issue of the card.
- [24]The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[5]
- [25]
RISK ASSESSMENT
- [26]There are a number of protective factors in this case:-
- It is clear on the evidence that the Applicant has depression, the evidence from Dr MA is that her mental illness is well treated. The evidence is also that the Applicant continues to engage with Dr MA and is committed to maintaining the stable mental health that she has now enjoyed for a significant period of time.
- The Applicant does not have any other criminal record and the only criminal behaviours are those for which she was convicted in January 2015 and drug use in her employment in 2009 although no charges arose from this.
- There has been no substance use including prescription substance use for a period well in excess of 18 months.
- The Applicant’s insight into her mental illness is very good and continues to grow.
- The Applicant has insight into the effect of her behaviours on her ability to care for her child and her husband and the criminality of her behaviour in taking and using S8 drugs.
- The Applicant was able to identifying readily her support network including her husband, General Practitioner and Psychiatrist as well as her parents.
- The Applicant has been highly proactive and committed to her recovery and accepting of treatment and support.
- The Applicant is not primarily a drug user but the drug use is secondary to mental illness which is now well treated.
- The obtaining of the S8 drugs has been opportunistic and in the course of her employment as a Nurse.
- [27]There are risk factors:-
- The Applicant has a history of use of S8 drugs obtained in the course of her employment.
- The Applicant has engaged in unlawful behaviours in obtaining S8 drugs during 2 periods in 2009 and 2013 and in doing so has actively concealed her behaviour.
- The Applicant does have an underlying mental illness of depression with the first episode of depression occurring in her early twenties and requiring treatment. In the past she has relapsed in that treatment.
- The drug use has occurred whilst she had the care of her young child and potentially compromised the care of patients in her care.
- Not all of the members of her identified support network are aware of the criminal charges and there is a level of secrecy surrounding both the drug use and the criminal charges including with her employer.
APPLICANT’S SUBMISSIONS
- [28]The Applicant submits that I would accept that she does not pose a risk to children and that I would accept the evidence of Dr MA that the drug seeking behaviour was a means of coping with anxiety and depression. The Applicant points out that since receiving treatment and addressing the mental health issues she has made a positive contribution as a member of society and that she is now aware of the risk of relapse but believes that given the insight she has developed into the circumstances of her drug use and behaviour this will not occur.
RESPONDENT’S SUBMISSION
- [29]The Respondent submits that the Applicant’s recovery is a work in progress and that undoubtedly over time abstinence will get easier for her. The Respondent submits that insufficient time has passed particularly in the absence of stressful situations in order for the tribunal to be satisfied that the risk is low.
- [30]In terms of the existing support network the Respondent submits that I would find that there is a limited support network outside of the treating team and that there are gaps in the knowledge of those identified. They outlined that the husband is a key support but there was no evidence that he was actively involved in treatment and that there is evidence that he was unaware of recent cravings. They submit that I would find that there is a preparedness to deceive by the Applicant and that I should be concerned about that.
- [31]They submit that I should also be concerned that the Applicant remains under a suspended period of imprisonment and that there is an immediate consequence for any offending behaviour.
- [32]They also submit that the reduction of stress is incompatible with regulated employment and that I should keep in mind that the Blue Card is transferrable.
- [33]In terms of Dr MA evidence they submit that I should view his evidence with some caution in that he had not undertaken any formal psychometric testing in reaching his conclusions.
- [34]In addition in the course of his evidence Dr MA made his views of the Blue Card system clear. His views may be summarised by saying that he believes the Respondent refuses the issue of a Blue Card too readily.
- [35]The Respondent also submits that I should make an Order pursuant to Section 66 as the Applicant lives in a small regional community and has young children. Publication of her name would necessarily identify her in the community and potential her children and family.
CONCLUSION
- [36]The Applicant seeks a Blue Card in order that she can obtain suitable employment. The Applicant is entitled to have a Blue Card issued to her unless this is an exceptional case. I find that the Applicant has made genuine serious and successful attempts to rehabilitate herself and to address the underlying mental illness which led to the drug use. I am satisfied that the Applicant is committed to ensuring that she continues to maintain her current stable mental state and I accept the evidence of Dr MA that the drug use is secondary to mental illness.
- [37]Further the Applicant has now surrendered her registration as a Nurse. Whilst it is possible for her to reapply for registration I accept the evidence that the Applicant does not intend returning to this occupation. The Applicant’s behaviour in accessing S 8 Drugs was opportunistic and directly related to her employment as a Nurse.
- [38]The Applicant has developed insight into her behaviour and her illness.
- [39]The principles for administering the Act are that the welfare and best interest of a child are paramount and that every child is entitled to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.[7]
- [40]Having regard to all of the circumstances I am not satisfied that an exceptional case exists in which it would not be in the best interests of the children for a Positive Notice to be issued to the Applicant and Order that a Positive Notice issue to her.
NON PUBLICATION ORDER
- [41]Further the Respondent submits that I should make an Order prohibiting publication of information relating to the Applicant and her family. The Applicant and her support network reside in a small regional community publication of identifying material could well be prejudicial to herself and her family. In the interests of justice I will make a non publication Order.
Footnotes
[1] Working With Children (Risk Management & Screen Act) 2009 (Qld) (WWCRMSA), s 221(2).
[2] Ibid, s 226.
[3] Commissioner for Young People and Child Guardian v FGC [2011] QCATA 291.
[4] Commissioner for Young People and Child Guardian v Storrs [2011] QCATA 28.
[5] WWCRMSA, s 6.
[6] Commissioner for Children and Young People and Child Guardian V Maher and Another [2004] QCA 492.
[7] WWCRMSA, s 6.