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Queensland College of Teachers v WHS QCAT 354
Queensland College of Teachers v WHS  QCAT 354
Queensland College of Teachers
Occupational regulation matters
On the papers
4 October 2016
EDUCATION – SCHOOLS – GOVERNMENT SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS - where teacher convicted of an indictable offence that is not a serious offence – whether ground for disciplinary action established – where offences committed outside employment as a teacher – where agreed statement of facts and disputed matters – where teacher agreeable to complying with order sought by the Queensland College of Teachers – whether proposed disciplinary action should be taken
NON-PUBLICATION ORDER – where teacher’s children referred to in material – where Tribunal can make an order on its own initiative – whether the interests of justice require the making of an order – whether publication of information would be contrary to the public interest
Education (Queensland College of Teachers) Act 2005 (Qld) ss 3, 11, 12, 49, 92, 158, 161, Schedule 3
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66
W v Commissioner for Children and Young People and Child Guardian  QCAT 431
Queensland College of Teachers v Teacher EAJ  QCAT 029
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
- WHS was first registered as a teacher in Queensland on 23 March 2010. Her teacher registration ended on 23 March 2014, after the end of four years of provisional registration.
- Prior to WHS’s teacher registration ending, the Queensland College of Teachers (QCT) suspended her registration pursuant to s 49 of the Education (Queensland College of Teachers) Act 2005 (Qld) (‘the Act’).
- The QCT also referred the matter to the Tribunal for determination of whether a disciplinary ground is established. This is because WHS had been charged by Queensland Police on 27 December 2013 with two counts of serious assault and one count of attempted arson of a structure or building.
- On 3 February 2015, WHS pleaded guilty to two counts of common assault in the District Court of Queensland. WHS was sentenced to a 12 month probation order with the special condition that she submit to medical, psychiatric or psychological treatment. No conviction was recorded. The charge of attempted arson did not proceed before the Court because a nolle prosequi was entered in respect of that charge.
- The complainants in relation to the charges of common assault were WHS’s mother and step-father. The incident resulting in the charge concerned conduct by WHS outside her employment or work as a teacher. The incident also took place while two of WHS’s children were present.
Is the proposed disciplinary action appropriate in the circumstances?
- Firstly, we are satisfied that WHS is a ‘former teacher’ and therefore a ‘relevant teacher’ for the purposes of the Act, even though her registration has ended.
- We find that a ground for disciplinary action has been established by the QCT because of WHS’s concession made to the QCT and her plea of guilty to the charge of common assault.
- As WHS is a former approved teacher, against whom a ground for disciplinary action has been established, the Tribunal may take certain action including, amongst others, making an order that a particular notation or endorsement about the teacher be entered in the register.
- In this case, WHS does not currently hold teacher registration. In order to obtain registration in the future WHS must submit an application for re-registration and the QCT must be satisfied that WHS is suitable to teach. The QCT propose that a notation be made on the register that if WHS makes an application for re-registration as a teacher she submit a psychiatrist’s report that includes, amongst others, the disclosure of certain information and relevant assessments of certain information (as provided). WHS says that she is more than ‘willing to comply and agree’ to the orders sought by the QCT.
- We have considered the nature of the offending behaviour that is contained in an agreed statement of facts that details the factual matters upon which WHS was sentenced. The facts, as agreed, are as follows:
- At approximately 5:31 pm on [on 26 December 2013] the day of the offending conduct, [WHS] telephoned [her friend], and complained that her step-father had informed her ex-partner of her new name and contact details. During the conversation, [WHS] seemed quite upset about it and told her friend that she was going to make her step father pay for passing that information on to her ex-partner. [WHS] then said to her friend, “I’m going to my mother’s place and I am going to burn it down. I am going to destroy the place”. [WHS’s friend] advised her against this and the call was ended. [WHS’s friend] then called the Wynnum Police Station to report what [WHS] had said to her during that call.
- At approximately 6:30 pm, police conducted a welfare check on the complainants, [WHS’s mother and step-father]. After speaking with the complainants, the police left the address. At approximately 7:00 pm, [WHS’s step-father] noticed someone in the front yard with a large red plastic container pouring liquid on the palm trees. After realising that the person was [WHS], [WHS’s step-father] went outside and approached WHS and asked her what she was doing. [He] could smell the petrol. [WHS] ignored him and moved to another garden on the western side of the property. [WHS] continued to pour the petrol over the plants. [WHS’s step-father] asked again what she was doing and she continued to ignore him.
- [WHS] brushed past [her step-father] and went to the garden along the front wall of the house. She poured petrol on a ginger plant and began to move in the direction of the house with the fuel can. WHS’s step-father grabbed the spout of the petrol can and pulled her away from the house. [She] said to [her step-father], “You’re gone Children’s Services are investigating you”. [WHS] splashed petrol on her step father as they struggled on the front lawn.
- While [WHS] and [her step-father] were struggling, [WHS] noticed that the gate to the carport was open and began to make her way to the carport. [Her step father] pulled [WHS] back in the direction of the yard. [WHS’s mother] made her way into the front yard. [WHS] let go of the petrol can, walked up to [her mother] and grabbed [her mother’s] shirt with both hands. She then pulled down on the shirt and put her own face within inches of [her mother’s] face. [WHS] then said, “You are dead” and words to the effect of “I have been waiting for you to do something and I will get you now and Children’s Services will be laying charges against you”. [WHS’s] mother was unable to pull away from [WHS]. [Her step-father] came to his wife’s aid and tried to pull [WHS] away. Eventually, [WHS] released her grip and [her mother] returned to the house and telephoned ‘000’.
- [WHS’s step father] had [WHS] by her arms in an attempt to restrain her. She turned to him and said, “you’re dead”. [WHS] then yelled out, “I am being assaulted, [name of WHS’s son]”. [WHS’s son and daughter] then appeared from a neighbouring property and approached the house.
- [WHS’s stepfather] directed [WHS’s son] to get off his property but he continued to move towards the house and said “Make me”. [WHS’s son] moved towards the petrol can which was on the ground and picked it up. This prompted [WHS’s step-father] to let go of [WHS] and he moved towards her son and grabbed the spout of the petrol can. As they struggled with the petrol can, petrol was poured onto the front law. [WHS’s son] has then thrown the can towards some trees and walked off down the road.
- [WHS] then ran to the petrol can, grabbed it and contained down the road towards her car. [WHS’s children aged 16 and 13 years] followed her and got into the car. She did a U-turn and drove away.
- Police arrived at the complainants’ address a short time later. Police from Wynnum Station attended [WHS’s] address to speak with her in relation to the incident. When police arrived, she smelt of petrol and appeared very agitated. She was detained and an emergent search was conducted. Police located a red petrol can in WHS’s car, which was parked in the garage, and later found WHS’s clothing soaking in a bucket. These items were seized by police.
- [WHS] was detained and transported to hospital to check for petrol burns and have her welfare assessed. Upon her release from hospital, WHS was transported to the Police Station where she decided to speak to police. WHS was charged and remanded in custody. She was granted Supreme Court bail on 19 February 2014.
- The facts as set out above are consistent with the contents of the Queensland Police Service’s court brief. The Tribunal makes findings of fact accordingly.
- In relation to the appropriateness of the disciplinary action to be taken, we have also considered the written submissions prepared by both the QCT and WHS in relation to mitigating and other relevant circumstances of the offending behaviour. This includes the evidence of WHS’s mental health as reflected in the transcript of proceedings, the medical evidence and WHS’s submissions to the Tribunal.
Evidence of WHS’s mental health and other relevant factors
- The transcript of WHS’s police record of interview on 26 December 2013, reflects that WHS told police that she suffered from depression, anxiety, and conversion disorder and took medication for those conditions.
- According to the transcript of proceedings in the District court in relation to WHS’s sentencing on 3 February 2015, WHS’s legal counsel told the Court that WHS was a woman who ‘had mental health issues’. She was (at the time) under the management of her general practitioner, psychiatrist and seeing her psychologist on a regular basis. It was acknowledged that WHS had had two visits to hospital, the first in 2012 and then she voluntarily presented herself again in October 2013 for one week for symptoms of conversion disorder. The court imposed a special condition that WHS submit to medical, psychiatric or psychological treatment.
- WHS has provided the Tribunal with a report prepared by her treating psychologist, Ms Jacinta Wagner dated 5 November 2015. Dr Wagner states that at the time of the report, WHS was engaged in treatment to fulfil a requirement of her probation order. WHS’s probation order ceased on 3 February 2016.
- Ms Wagner states that WHS does not attract a psychiatric diagnosis, is stable and functioning well. Ms Wagner further states that she does not consider her to be “imminently at risk to others or in the foreseeable future” and her two convictions were “inconsistent with her good character”. Further, Ms Wagner states that WHS does not require regular treatment. Ms Wagner states:
"WHS is rebuilding her life after disruption and [she considers] that disallowing her to maintain registration would be detrimental to her well-being. She has a tremendous wealth of experience and knowledge that can only benefit her students and the community".
- In her report, Ms Wagner does not address whether any psychiatric diagnosis has been made in the past. There is no mention of anxiety, depression and conversion disorder or a description of any past history of mental health issues.
- Based on WHS’s own admissions regarding a diagnosis of conversion disorder and the submissions and information provided to the District Court on 3 February 2015 by her legal counsel, the Tribunal is reasonably satisfied that WHS has a history of mental illness. The Tribunal is further reasonably satisfied that WHS was suffering from mental illness at the time of the offending conduct and that it likely played a part in her behaviour on 26 December 2013.
What are the relevant submissions about the appropriateness of the proposed disciplinary action?
- It is common ground that at the time of the offending behaviour, WHS had become aware that the complainants had disclosed her new name and contact details to her former partner. The QCT accepts in its submissions that WHS was fearful of her former partner and wanted herself and her children to remain hidden from him. WHS has provided a background in relation to her former partner involving physical, emotional and sexual assault.
- Notwithstanding the background information that is relevant to the context in which the offending behaviour took place, the QCT submits that WHS’s conduct was an extreme reaction to a stressful life event indicative of a lack of self-control and poor decision-making. She sought to get back at her mother for revealing her name and contact details. She had had time during the day to consider her options but made the decision to attend the property. WHS disputes this. She agrees she made a poor decision but says that she did not have the day to consider her actions and that she did in fact act in the ‘heat of the moment’.
- The QCT submits that the profession of teaching is one that requires and expects teachers to cope in stressful situations. Teachers must be equipped with a range of effective strategies to manage stress, facilitate decision-making and to exercise self-control. The QCT submits that the conduct displayed by WHS casts doubt over her ability to employ such strategies in the classroom.
- While WHS’s offending behaviour did not occur in the classroom, the QCT submits that it is relevant to consider that she took her two eldest children with her and that they witnessed the distressing events. The QCT, relying on W v Commissioner for Children and Young People and Child Guardian, submits that the involvement of her children in the events indicates a ‘lack of insight into the safety of children and young people’ and demonstrates poor decision-making around children.
- The QCT acknowledges that WHS has expressed regret for taking her children with her on the evening in question. The QCT also submits that WHS has demonstrated a degree of insight into her conduct. She has stated that she takes ‘full responsibility’ for her behaviour and believes she has learnt from her mistakes’. She has also owned up to the motivation for her actions.
- The QCT also submits that, at times, WHS has downplayed her actions. She has stated she is ‘only human’ and characterised her actions as ‘an error of judgment made in an unusual situation’. She has also failed to address what actions, if any, she has taken to remedy the behaviour including strategies around self-control and rational decision-making.
- The QCT submits that Ms Wagner’s report fails to address whether anger and stress management strategies have been developed. The QCT acknowledges Ms Wagner’s professional view that WHS is ‘stable and functioning well’ and that she does not require ‘regular treatment’. The QCT says Ms Wagner’s report does not address whether there is an underlying condition that may have contributed to WHS’s behaviour.
- The QCT concedes that there is no evidence of a pattern of concerning behaviour, distinguishing an earlier decision of the Tribunal in Queensland College of Teachers v Teacher EAJ. In EAJ’s case, the Tribunal took into consideration the fact that the relevant teacher had experienced a difficult marriage breakdown and was under significant mental stress but ultimately found that the teacher’s conduct referred to as a ‘reaction’ was play-out in an ‘angry and hostile manner’. The QCT submits that a similar approach taken by the Tribunal in EAJ’s case should be taken in this matter, in that WHS’s background may explain although not ‘necessarily excuse or justify her conduct’.
- In her response to the QCT’s submission, WHS has indicated that her probation required her to submit to medical, psychiatric or psychological treatment. In compliance with her probation orders, she attended psychological treatment. WHS contends that as her former partner now knows her new name, the stressful events that led to the offending are not likely to recur. She says she will now notify the authorities should her former partner make any threats.
- WHS says that in late 2015 she attended a two-day ‘Resilience’ seminar/workshop with a probation service. She also attended an eight-week course with a child and youth mental health service in 2015 which she found beneficial in exploring her role as a parent, how her behaviour impacts on her children and how she can more positively engage and interact with her children especially in times of stress. She says:
"I was able to explore and reflect on my behaviour related to the common assault evening and the damage this had on my children as well as learn how to act differently. I am striving my hardest to improve who I am, my decision-making and resulting behaviour".
- WHS submits that she has taken certain steps to ‘manage her stress.’ WHS says that she has done the following:
- No contact at all with my mother and to refrain from interaction with her;
- Reported all incidents of harassment and stalking by my mother to probation, lawyers and psychologist. Documented my mother’s behaviour if needed to take to authorities demonstrating that [she is] following the appropriate course of action in difficult and stressful situations;
- Slowed down. During probation, I was asked to stop my PhD for a period of time, not present at conferences, reduce my work hours, cease my volunteering, and to slow down my life and stop all unnecessary activities…;
- Took time out for me;
- Choose one thing to achieve each day, instead of many;
- Spend time with my close support group on a regular basis...;
- Engaged in my art….
- WHS further states that in the last two and a half years she has been under considerable stress with numerous court appearances and other stressful personal and work related circumstances. WHS says:
"During this time, I have demonstrated appropriate behaviour and coped well under such stress and still participated in lecturing and tutoring at University. I have attached my student evaluation of teaching from this past semester as support of my claims that I am able to cope under significant stress, teach higher education students, and engage with a wide demographic range of students … who can be angry and aggressive in the classroom. Please note the student feedback that acknowledged such behaviour of peers and stated that I acted with respect towards all students even when they presented with difficult behaviour. I was also nominated for a teaching award by 11 (79%) of the students who provided feedback… .
… I am weeks away from submitting my doctoral thesis, which is known as being particularly stressful".
- WHS also submits that just over two years ago, she became a Christian and her faith has helped her cope and improve herself. She maintains that she has learnt strategies and techniques through her psychologist and external courses and provides an example whereby she chose to walk calmly away from her mother when she came into close contact with her at her local shopping centre while on probation.
- The QCT acknowledges that WHS while relatively new to the teaching profession has undertaken pursuits such as becoming a tutor and obtaining a PHD. She has provided a number of references, which attest to her being a good teacher and possessing qualities such as being a reliable co-worker who takes pride in her work, which suggest she would be an asset to the teaching profession. WHS has also expressed her passion for teaching.
- WHS closes her written submission by acknowledging ‘the important role that the QCT has in being a regulatory authority in the teaching profession and that the safety of all children is of the utmost importance’. She therefore states that she is more than willing to comply and agree with the orders sought by the QCT.
- The Tribunal has carefully considered WHS’s offending behaviour. The behaviour showed poor decision-making both in relation to the factual circumstances of the assaults and in her decision to take two of her children to the scene. Her behaviour was extremely irrational behaviour. The Tribunal considers that to be so even accepting that it followed her discovery that her former partner knew her contact details and she was extremely fearful of him. Her decision to change her name by deed poll and conceal from him her whereabouts supports a finding that the fear she held was significant and the Tribunal has taken this into account.
- WHS’s behaviour on 26 December 2013 involved threats of violence and actual physical violence. WHS submits that her behaviour was impulsive and as such evidences an inability at that time for rational decision-making. The numerous impulsive decisions include, amongst others, buying the petrol, attending the complainant’s home and then acting as it is agreed she did at their home.
- For reasons already given, the Tribunal accepts that at the time of the offending, WHS was suffering from mental health issues. The Tribunal considers that her mental health issues and the fear she held in relation to her former partner provide some explanation for her conduct on that day. The Tribunal considers that it is relevant to consider those circumstances in determining the appropriate sanction.
- The Tribunal has placed some weight on Ms Wagner’s report that at the time of that report WHS was undergoing treatment but did not at that time attract a diagnosis. The probation order ended in February 2016 and there is no indication in the material that WHS is currently engaged in treatment for any mental illness.
- However, Ms Wagner’s report is silent as to whether WHS’s mental health issues are likely to recur should particularly stressful circumstances again present themselves. Indeed, Ms Wagner makes no reference to WHS having any history of mental illness.
- The Tribunal accepts the submissions of the QCT that teaching can be stressful. It is also clear that WHS’s former partner of whom she is extremely fearful now knows her whereabouts. That too presents a level of ongoing stress for WHS.
- Whilst we accept the evidence before us demonstrates that WHS has developed strategies for dealing with stress and she has not reoffended, there is no independent specialist medical opinion before us that considers her complete mental health history and expresses an opinion as to the likely impact on WHS’s decision making of stressful events or circumstances.
- There is no specialist medical opinion that supports WHS’s statements that she does in fact employ appropriate and effective strategies in dealing with stressful events or circumstances. There is no specialist medical opinion that supports WHS’s statements regarding the treatment and other programs she has engaged in to help her manage stressful circumstances. It is unclear whether WHS has adequate insight into her mental health history and will be able to identify when she requires medical intervention or, if she can, that she will seek it.
- In the absence of such an opinion and taking into account the extreme behaviour exhibited on 26 December 2013, the Tribunal remains concerned that when presented with a particularly stressful circumstance, WHS’s decision-making will again be affected.
- The Tribunal accepts that WHS has not committed any further offences nor has her behaviour come to the notice of the QCT since her convictions on 3 February 2015. The Tribunal also accepts that prior to the events of 26 December 2013, WHS had not come to the notice of the police or the QCT in relation to any concerning behaviour. WHS has cooperated with the QCT during the Tribunal process.
- The Tribunal has also taken into account WHS’s glowing references from colleagues in recent times, her impressive qualifications and her expressed passion for teaching. The Tribunal accepts that WHS is remorseful for her actions and, in particular, the inclusion of her children in the events of that day. The Tribunal has also taken into account the fact that WHS is a relatively new teacher and has, in recent years, been employed in a tertiary setting.
- The Tribunal must ensure that in the event that WHS, applies again for teacher’s registration that she is mentally equipped to deal with the stresses that can occur not only in the classroom but that might occur in her private life and potentially impact her decision making in the classroom. As a teacher, she must be capable of making rational and appropriate decisions involving children and be capable of maintaining self-control.
- The purpose of disciplinary proceedings is to not to punish but , as provided in the objects of the Act, to uphold and maintain the standards of the teaching profession, maintain public confidence and to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.
- Weighing all of those matters and taking into account the objects of the Act, the Tribunal considers that the appropriate disciplinary action to be taken in this matter is as proposed by the QCT and WHS as follows:
- That a notation be entered on the register requiring any application by the respondent for re-registration be accompanied by a psychiatrist’s report which includes:
- Disclosure of any relevant mental illness, condition or disability, including history of treatment;
- The significance, if any, of any mental illness, condition or disability in relation to the respondent’s suitability to teach;
- An assessment of any teaching arrangements, strategies or environments which would increase or decrease any ‘risk of harm to children’ presented by the respondent; and
- In terms of the ability of the respondent to manage stress; an explanation of what strategies (if any) have been put in place to assist her, whether the respondent has implemented those strategies and the relevant outcome.
- That a notation be entered on the register requiring any application by the respondent for re-registration be accompanied by a psychiatrist’s report which includes:
- The Tribunal considers that the proposed order serves to maintain public confidence in the teaching profession, uphold the standards of the teaching profession and to protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers. Further, it will go some way to giving the public confidence that WHS is suitable to teach at any time in the future that she might seek registration.
- WHS has children. Two of them were specifically referred to in the statement of agreed facts. They were present at the time of the offending behaviour. WHS has provided the Tribunal with documents obtained from her children. WHS has raised serious concerns about the welfare of her children and there is some evidence that WHS may have, in the past, pursued an apprehended violence order although, it is unclear to the Tribunal whether the order was made.
- Pursuant to s 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the Tribunal may make an order prohibiting the publication of the contents of a document produced to the Tribunal and information that may enable a person who is affected by proceedings to be identified. The Tribunal’s discretion to make such an order is enlivened only if the Tribunal considers the order is necessary for one of the reasons listed in s 66(2) of the QCAT Act, including to avoid the publication of confidential information or information whose publication would be contrary to the public interest or for any other reason in the interests of justice. In this case, the Tribunal considers that it is in the public interest and in the interests of justice that WHS’s children not be identified. The Tribunal considers that the only way in which this can be assured is for WHS’s name not to be published.
- The Tribunal orders that publication of any information, which may lead to the identification of WHS and her children, is prohibited.
 Further amended referral of a disciplinary matter to QCAT dated 29 March 2016. See affidavit of Alexander White sworn 19 October 2015 and Statement of Agreed and Disputed Matters dated 28 April 2016.
 See Further amended referral of a disciplinary matter to QCAT dated 29 March 2016 and tribunal’s direction made on 19 April 2016 granting leave to the QCT to further amend the referral to remove the ground relying on s 92(1)(h) of the Act that WHS is ‘not suitable to teach’.
 The Act, s 92(1)(b).
 Statement of Agreed and Disputed Matters dated 28 April 2016 and written submission filed by WHS on 30 May 2016 See the Act, s 158.
 The Act, Schedule 3.
 Ibid, s 158.
 Ibid, s 161.
 Ibid, ss 8, 9, 10, 11 and 12.
 Written submissions filed by WHS on 30 May 2016.
 Statement of Agreed and Disputed Matters dated 28 April 2016
 See submissions of the QCT filed on 17 May 2016 and material provided by the DPP (to the tribunal) on 27 July 2015.
 Transcript 1-7 lines 38-40.
 Transcript 1-11 lines 6-12.
 Transcript 1-9 lines 35-41.
 Transcript 1-10 lines 21-25.
 WHS had officially changed her name by deed poll in 2013.
 Statement of Agreed and Disputed matters filed on 29 April 2016, para 8(a).
 The respondent’s letter dated 7 November 2015, p 20.
 Submissions of the QCT dated 17 May 2016, .
 WHS written submissions filed on 30 May 2016.
 Ibid, .
  QCAT 431.
  QCAT 431 at .
 The respondent’s letter dated 7 November 2015, p 28.
 Ibid, p 28.
 Ibid, p. 20.
 Ibid, p.28.
 Queensland College of Teachers v Teacher EAJ  QCAT 029, 67.
 Report of Jacinta Wagner dated 5 November 2015.
 Submissions of the QCT dated 17 May 2016.
  QCAT 029.
 Ibid, . See QCT submissions dated 17 May 2016.
 See QCT submissions dated 17 May 2016.
 Letter from WHS to QCAT dated 29 May 2016. WHS’s written submission filed on 29 May 2016.
 Ibid at  (c).
 Letter WSH to QCAT dated 29 May 2016 at  (d).
 Ibid at  (e).
 Ibid at  (f), (g) and (h).
 Reference dated 30 October 2015.
 The respondent’s letter dated 2 September 2015.
 WHS’s written submission filed on 29 May 2016.
 Ibid, .
 Attachments H, I, K, L, M, N, O, to WHS’s written submission.
 The Act, s 3.
- Published Case Name:
Queensland College of Teachers v WHS
- Shortened Case Name:
Queensland College of Teachers v WHS
 QCAT 354
Member Browne Member Guthrie Member MacDonald
04 Oct 2016