Kelly v Chief Executive Officer, Public Safety Business Agency
[2016] QCAT 216
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- Unreported Judgment
- Kelly v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 216
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Kelly v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 216
Kelly v Chief Executive Officer, Public Safety Business Agency[2016] QCAT 216
CITATION: | Kelly v Chief Executive Officer, Public Safety Business Agency [2016] QCAT 216 | ||
PARTIES: | Christopher David Kelly (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) | ||
APPLICATION NUMBER: | CML141-15 | ||
MATTER TYPE: | Childrens matters | ||
HEARING DATE: | 29 April 2016 | ||
HEARD AT: | Townsville | ||
DECISION OF: | Member Pennell | ||
DELIVERED ON: | 30 June 2016 | ||
DELIVERED AT: | Townsville | ||
DECISION MADE: | The decision of the Chief Executive Officer, Public Safety Business Agency dated 14 May 2015 to issue a negative notice to Christopher David Kelly is set aside. | ||
CATCHWORDS: | CHILDRENS MATTER – BLUE CARD – REVIEW OF NEGATIVE NOTICE – review of a decision to issue a negative notice – review of a decision to cancel a blue card – change in applicant’s criminal history – whether or not it is in the best interests of children to issue a positive notice – whether exceptional circumstances exist | ||
| Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5, s 6, s 8, s 221, s 226, s 353 and s 360 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 and s 24 Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 Briginshaw v Briginshaw & Anor (1938) 60 CLR 336 Kent v Wilson [2000] VSC 98, at paragraph 29 Re Imperial Chemical Industries Ltd Patent Extension Petitions [1983] VR 1 Perry and Browns Patents (1930) 48 RPC 200 | ||
APPEARANCES and REPRESENTATIONS: |
| ||
APPLICANT: | Self Represented | ||
RESPONDENT: | Ms Kylie Heath for the respondent | ||
REASONS FOR DECISION | |||
The Parties
- [1]Christopher David Kelly (the applicant) lives in Townsville. For a majority of his adult working life he has been employed in the health sector. In 2008, he completed his nursing degree, majoring in psychiatric nursing. He has worked in a number of nursing positions within the Townsville area.
- [2]The respondent is the Chief Executive Officer, Public Safety Business Agency (the agency). The functions of the agency are to administer the scheme for the screening of people employed, or proposed to be employed in certain child related employment; and people carrying on, or proposing to carry on certain child related businesses; and to audit or monitor compliance with the Working with Children (Risk Management and Screening) Act 2000 (“the Act”)[1].
- [3]In administering the provisions of the Act, the respondent is guided by the objects and principles that provide for the promotion of, and protection of the rights, interests and wellbeing of children and young people[2]. The welfare and best interests of a child is paramount[3] and the central focus is the protection of children.
Background
- [4]In 2005, the applicant was issued with a blue card, which he held until 2010. On 13 January 2015, he again applied for a positive notice and blue card. In the usual course of enquiries when such applications are made, the respondent carries out criminal history checks with the Queensland Police Service. When that criminal history check was undertaken, it was discovered that there had been a change with the applicant’s criminal history. That criminal history is discussed later in these reasons.
- [5]The applicant was asked to make submissions to support his eligibility to hold a positive notice and a blue card. Those submissions were made, and then rejected by the respondent. On 14 May 2015, the respondent issued a negative notice to the applicant.
Review Jurisdiction
- [6]A person affected by a reviewable decision can make an application to the Queensland Civil and Administrative Tribunal (“the tribunal”) to review a reviewable decision[4]. The review must be heard and decided by way of a fresh hearing, with the purpose of producing a correct and preferable decision based on the merits of the application[5]. In arriving at the correct and preferable decision, there is a discretion for the tribunal to:
- (a)either confirm or amend the decision; or
- (b)set aside the decision and substitute its own decision; or
- (c)set aside the decision and return the matter for reconsideration to the decision maker, with the directions the tribunal considers appropriate[6].
The applicant’s criminal history
- [7]In 1999, the applicant was convicted in the Magistrates Court at Cairns for possession of a dangerous drug and a drug utensil. Those offences did not prevent him obtaining a blue card in 2005.
- [8]On 7 August 2014, the applicant was convicted of two drug related offences in the Magistrates Court at Townsville[7]. The facts of those charges are that on 22 February 2014, the applicant was working as a registered nurse. During his shift, he was found unconscious in a toilet cubicle at his workplace. Beside him on the floor was a fentanyl patch, a needle and syringe, a spoon and a cloudy like liquid substance inside a container.
- [9]He made full admissions about the incident saying that he obtained the fentanyl patch from a patient under his care. The patch had come off the patient and he took the patch with the intention of disposing of it, but instead kept it. When he was on his next break, he went to the toilet cubicle. After extracting the drug from the patch, he injected himself with the drug. He then lost consciousness.
Evidence at the hearing
- [10]
The applicant
- [11]In relying upon his statements to the respondent and the tribunal, the applicant said that in 2010 he tragically lost his sister in a fatal car accident.
- [12]The loss of his sister had a profound effect on not only himself, but also on his family. He was at that time being treated with pain relief medication for a back injury that he had previously suffered at work. Because of the ability of the medication to dull the senses, he used it excessively to alleviate the shock and depression that accompanied his sister’s death.
- [13]Within a short period of time, he realised that he was using the medication inappropriately. With the support of his partner, immediate family and with his doctor’s advice, he entered a rehabilitation centre for a period of three months for treatment. At the end of that rehabilitation period, he returned to work believing that he had overcome his addiction to pain killers.
- [14]About a month after he returned to work, he found himself under enormous financial stress, which in turn caused stress in his personal life with his partner. At some point, he found a tablet that he had misplaced prior to going into rehab. Because of the stress that he had been under at that time, he foolishly consumed the tablet. He immediately regretted his actions and vowed not to repeat that mistake again.
- [15]Within the next month, the applicant had a review with a psychiatrist appointed by Australian Health Practitioner Regulation Agency (“AHPRA”) to ensure that he was fit to practice as a registered nurse. Prior to this time, he had been regularly undertaking random urine tests, all of which he had passed.
- [16]On this occasion the AHPRA appointed psychiatrist requested that the applicant submit to a hair sample analysis to prove that he had been abstinent over the previous three months. Although an analysis of a urine sample can detect the presence of drugs in the human body up to a relatively short period prior to the sample being taken, a hair follicle analysis is far more accurate and can detect the presence of drugs upwards to three months prior to the sampling.
- [17]The applicant was overcome with an overbearing sensation of doom as he realised that the tablet that he unwisely took about a month earlier would be detected in the testing and his registration to practice as a nurse would be suspended. This, along with the stress of near bankruptcy and the escalating stressors between himself and his partner culminated in him using fentanyl at work.
- [18]The applicant told the tribunal that what happened at his workplace was completely out of character for him. The incident caused him great shame and is the single biggest regret in his life. After the incident, he had worked hard to move on from the event. He had engaged with ATODS and attended regular appointments with that organisation to address the profound effect that this had on his life and family.
- [19]Through the assistance of an ATODS program, he has overcome his addiction to pain medication and has moved forward in his life with a positive and healthy mindset. He said that he is essentially a good person who went through a difficult time and made a life changing mistake.
Anthony Joseph Kelly
- [20]He is a primary school teacher. He told the tribunal that the incident which led to the applicant having an overdose of drugs was out of character and something that was a direct result of the extreme pressures that the applicant was experiencing at that time. He went on to say that he knew that the applicant was making every endeavour never to repeat his past behaviour.
- [21]He also said that since the death of their sister, there had been a period when the applicant was not himself and was clearly under the influence of ‘something’. He went on to explain that he now sees a difference in the applicant because he is no longer using drugs.
- [22]In commenting on the applicant’s strengths, he said that the applicant is a good communicator, he has a good sense of humour and he utilises those two attributes effectively within his environment.
Carol Joyce Hewson
- [23]She is the manager for a disability service called House with No Steps. She supervised the applicant when he was employed by that organisation. She spoke highly of him. He was exceptional in his work ethic and over a short period of time he became an integral part of the support system for a young person who has autism spectrum disorder. At all times she found the applicant to be honest, sober, intelligent and professional in his application to his duties. She also found him to be family orientated and community minded.
Donna Gilbert
- [24]She is a very experienced clinical nurse employed by Queensland Health, having been with that organisation since 1987, with the last three years in her role with ATODS. Although she is not the applicant’s ATODS case manager, she was able to review his file and comment as to the program he attends and his progress on that program.
- [25]She told the tribunal that since August 2015 the applicant has been on an opiate substitution program. The program is designed so that patients are placed on a dose of Suboxone, which is gradually increased until the patient arrives at a stable therapeutic Suboxone dose. Included in that program are regular sessions between the applicant and a psychiatrist.
- [26]In reviewing the applicant’s case file, Ms Gilbert was able to say that his compliance to attending that program has been excellent, he attends daily and engages with his case manager. He also attends regular prescriber appointments. He has not tested positive for opiates during his time on the program.
Kathryn Kelly
- [27]She is the applicant’s mother and understandably, she is close to her son. She supports him and has many positive things to say about him. Notwithstanding that, the tribunal took comfort in knowing that she acknowledged that the applicant was not without his faults.
- [28]In discussing his strengths, she said that he has a very good way of relating to people. She gave an example of when he was studying at university he worked at SOLAS[10] where he assisted underprivileged people. That is, the applicant was essentially a full time support person to those people in activities including shopping, going to the beach or movies, as well as teaching them skills such as how to play the guitar.
- [29]She described herself as a pretty shrewd observer. This is not an unusual trait to find in a parent, particularly when a parent who having already lost her daughter, was concerned about the direction the life of one of her sons had taken.
- [30]She told the tribunal that the applicant is now more focused on his life. In her careful observations of him since the fentanyl incident she has not seen him lapse back into using drugs of any kind.
The Agency’s position
- [31]The agency says that the applicant’s convictions for drugs related offences in 1999 and 2014 are factors to be considered. Since the earlier convictions, the agency issued a positive notice and blue card to the applicant. It would seem that the agency’s concerns are the circumstances surrounding the latest incident and what followed from that.
- [32]The Agency acknowledges that the relevant protective factors which exists for the applicant are:
- (a)His supportive partner and a stable home environment;
- (b)The support of his close family members;
- (c)His desire to abstain from further drug use;
- (d)His engagement with ATODS;
- (e)He has not relapsed back into drug use; and
- (f)His good work record, including after the fentanyl incident he gained employment with the House with No Steps where he has been great assistance with a person suffering high spectrum autism.
- [33]The Agency contends that notwithstanding those protective factors, there are a number of relevant risk factors which outweigh the beneficial aspect of those protective factors. Those risks are:
- (a)The applicant has not articulated how the treatment sessions have assisted him, and what relapse prevention strategies he employs;
- (b)His addiction to pain relief medication following the death of his sister, that medication was prescribed to him for a work related back injury;
- (c)Despite earlier acknowledging his addiction to pain relief medication, and then attending a lengthy period of rehabilitation, he still relapsed back into the use of drugs. For example, the taking of the tablet and the fentanyl incident.
- (d)The applicant’s propensity to rely upon drugs when under extreme stress. For example, the applicant feeling apprehensive about testing positive for drugs and then using fentanyl.
- (e)The applicant’s failure to articulate why he was unable to apply coping strategies.
What is an “exceptional case”?
- [34]The paramount consideration in a review of this nature[11] is that a decision must be reached in a way that protects children from harm. The promotion of the principle that the wellbeing of children is paramount[12]. The decision under review is whether the applicant's case is an 'exceptional case’[13] such that the presumption has been displaced[14].
- [35]The term ‘exceptional case’ is not defined in the Act and is a matter of discretion considering the merits of each case[15]. What constitutes an 'exceptional case' is a question of fact and degree. Guidance as to the definition of an exceptional case was given by Philippides J in Maher’s case[16] where he said:
“… it would be most unwise to lay down any general rule with regard to what is an exceptional case …. All these matters are matters of discretion”.
- [36]That interpretation by Philippides J was adopted by the QCAT Appeal Tribunal in Commissioner for Children and Young People and Child Guardian v FGC[17] where it was accepted that the phrase is to be read in the particular context of the legislation in which it occurs.
- [37]Further guidance for the interpretation of the term “exceptional circumstances” can be found in the comments of Hedigan J in Kent v Wilson[18] when the Court considered the context of a breach of community correction orders. Hedigan J commented that exceptional is defined, contextually in the Oxford English Dictionary (2nd Edition Volume V), as meaning ‘unusual, special, out of the ordinary course’.
Conclusion
- [38]On the basis of the applicant's criminal history, the statutory presumption is that a positive notice should be issued to the applicant. That is, none of the applicant’s offences is deemed “serious offences” or “disqualifying offences” within the provisions of the Act.
- [39]Because the applicant has been charged with and convicted of drug offences, there are considerations which must be applied when determining whether an exceptional case exists[19].
- [40]
- [41]In reaching a determination and deciding whether there is an exceptional case for the applicant, the tribunal must consider all of the circumstances. Regard must be had to, amongst other things, when the offences were committed, and the nature of the offending behaviour, its relevance to the applicant’s employment.
- [42]The aggravating feature of the applicant taking a fentanyl patch and then injecting himself with that drug is that he was at that time being supervised by a senior nurse. His actions were a breach of his employer’s and supervisor’s trust and placed them in an unenviable position. Notwithstanding that, the tribunal must consider all of those the factors identified, and must be satisfied whether the nature of the applicant’s offending behaviour is such that there are exceptional circumstances to justify that it would not be in the best interests of children or young people if he was issued with a positive notice and a blue card.
- [43]The tribunal accepts the applicant has made positive progress, he has shown insight into his actions, and he has demonstrated regret for his actions. He has also sought professional assistance and put in place the necessary changes in his life which the tribunal accepts is a demonstration of his ability to improve himself.
- [44]The tribunal is satisfied there are a number of existing protective factors which are in place, such as the applicant’s current approach to rehabilitation and the ongoing assistance of ATODS.
- [45]Other protective factors involve his family. Although his brother lives interstate, his parents live in the same locality as him, he has a close relationship with them and they are vigilant as to his past behaviour.
- [46]The tribunal is satisfied that the protective factors outweigh the risks and the best interest of children principle would not be harmed if a positive notice and blue card was now issued to the applicant.
- [47]Having regard to all of the evidence, the tribunal is satisfied that the correct and preferable decision in this matter is to set aside the agency’s decision and direct that a positive notice and blue card be issued to the applicant.
Decision
- [48]The decision of the tribunal is that the decision of the Chief Executive Officer, Public Safety Business Agency dated 14 May 2015 to issue a negative notice to Christopher David Kelly is set aside.
Footnotes
[1] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 8.
[2] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5.
[3] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6 and 360.
[4] As provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[5] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20.
[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24.
[7] Although convicted, no conviction was recorded against the applicant. He was fined $850.
[8] The applicant’s brother.
[9] The applicant’s mother.
[10] Supported Options in Lifestyle and Access Services Limited.
[11] Under the provisions of the Working with Children (Risk Management and Screening) Act 2000 (Qld).
[12] Working with Children (Risk Management and Screening) Act 2000 (Qld) ss 6 and 360.
[13] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 353.
[14] As prescribed by the Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221.
[15] Kent v Wilson [2000] VSC 98, at paragraph 29.
[16] Commissioner for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 at [34] where the approach of Luxmoore J in Perry and Browns Patents (1930) 48 RPC 200 was adopted.
[17] [2011] QCATA 291 at [33].
[18] [2000] VSC 98.
[19] Working with Children (Risk Management and Screening) Act 2000 (Qld) s 226.
[20] Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.
[21] Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 citing the test prescribed in Briginshaw v Briginshaw & Anor (1938) 60 CLR 336.