Queensland College of Teachers v VGB
[2016] QCAT 500
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- Unreported Judgment
- Queensland College of Teachers v VGB[2016] QCAT 500
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Queensland College of Teachers v VGB[2016] QCAT 500
Queensland College of Teachers v VGB[2016] QCAT 500
CITATION: | Queensland College of Teachers v VGB [2016] QCAT 500 |
PARTIES: | Queensland College of Teachers (Applicant) |
v | |
VGB (Respondent) | |
APPLICATION NUMBER: | OCR087-16 |
MATTER TYPE: | Occupational regulation matters |
HEARING DATE: | 21 December 2016 |
HEARD AT: | Brisbane |
DECISION OF: | Member Kanowski, Presiding Member Member Allen Member Macdonald |
DELIVERED ON: | 22 December 2016 |
DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
CATCHWORDS: | Teacher disciplinary matter – mental illness of teacher – teacher of unsound mind at time of sexual assaults – leave to withdraw Education (Queensland College of Teachers) Act 2005 (Qld) s 3, s 12, s 92 Queensland College of Teachers v Burrows [2015] QCAT 78 Queensland College of Teachers v CMF [2016] QCAT 137 |
APPEARANCES: |
This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REASONS FOR DECISION
- [1]This case is about whether the Queensland College of Teachers should be permitted to withdraw a disciplinary referral against the respondent. We will refer to the respondent as “the teacher” even though he has not taught for some time. His teacher registration lapsed after he did not renew it in late 2015. He has been doing farm work but he wishes to return to the teaching profession. He will need to apply to the College for re-registration before he can resume teaching.
- [2]The background to the disciplinary referral is that in early October 2014 the teacher was charged by police with two counts of sexual assault. It was alleged that on 30 September 2014 the teacher sexually assaulted two people in a spa while on holidays at a resort: in particular that he twice touched a 44 year old woman on the buttocks and that he put his hand between the upper legs of a 15 year old girl.
- [3]The teacher’s solicitor referred the matter to the Mental Health Court. In December 2015 the Court found that the teacher had been of unsound mind at the time of the assaults, during an acute phase of his schizoaffective disorder. The Court ordered that the charges were to be discontinued, and so they were subsequently withdrawn by the prosecution in the Magistrates Court.
- [4]The College made the disciplinary referral to QCAT on 24 June 2016. The statutory provisions relied upon for the referral were section 92(1)(h) and section 92(2)(a)(i) and (3) of the Education (Queensland College of Teachers) Act 2005 (Qld) (the Education Act). It is relevant to refer to the provisions as in force at the time of the referral (some amendments since having been made). The first of those provisions contained the ground “not suitable to teach”. The second provision was to the effect that when a teacher had been charged with a “serious offence” but the charge had been withdrawn, the ground “not suitable to teach” was taken to apply. This provision has been interpreted not as a deeming provision but, rather, as one which mandates consideration of whether the teacher in question is not suitable to teach.[1]
- [5]On 8 December 2016 the College applied for leave to withdraw the referral after receiving additional evidence including satisfactory recent reports from the teacher’s psychiatrist. These reports indicate that the teacher’s schizoaffective disorder is currently well-controlled.
Should the College be granted leave to withdraw?
- [6]As explained in Queensland College of Teachers v Burrows[2] the College cannot unilaterally withdraw a disciplinary referral. QCAT’s leave must be sought for a proposed withdrawal. We must consider whether it is appropriate to grant such leave under section 46(1) of the QCAT Act read in conjunction with section 97(4) of the Education Act.
- [7]When the College made the disciplinary referral it had very limited information about the circumstances of the charges and the teacher’s mental state. This is not to suggest that the referral was not warranted: clearly it was on the information then available to the College. With the benefit of notices to produce issued by the Tribunal, the College has been able to obtain a substantial amount of additional information. This includes reports provided to the Mental Health Court by the teacher’s treating psychiatrist and an examining psychiatrist appointed by the Court. It also includes the reasons of the Mental Health Court. The College also has two recent reports by the treating psychiatrist.
- [8]The reports indicate that the teacher has had schizoaffective disorder for many years. The treating psychiatrist has been treating the teacher, who is now 46, for more than 25 years. There have been several hospital admissions over the years but the teacher’s condition had been stable for four years prior to the assaults despite a low dose of his anti-psychotic medication (40 milligrams per day of Ziprasidone) over that period. A dose reduction had been made at the start of that period because the earlier dose had been sedating. This had interfered with the teacher’s work, which had consisted of part-time teaching and part-time farm work.
- [9]The teacher and his family went away on holiday in September 2014 partly because the teacher had not been feeling well. The cause of the relapse is not known but the psychiatrists observed that the low dose of anti-psychotic may have been a contributing factor. The treating psychiatrist also speculated that the teacher may have missed some doses of medication because of the disruption to his routine while on holidays. In any event, the teacher suffered the relapse and committed the assaults. At the time he was experiencing auditory hallucinations and delusional beliefs that the complainants wanted him to touch them.
- [10]The next day the teacher was admitted to a psychiatric hospital, where he spent three weeks. The dosage of his medication was increased. From the reports it can be seen that the daily dose of Ziprasidone was 120 milligrams in March 2015 and that it has since been gradually reduced to 60 milligrams.
- [11]The psychiatrists both considered that at the time of the assaults the teacher was suffering an acute relapse of schizoaffective disorder, and that he was deprived of the capacity to control his actions and the capacity to know that what he was doing was wrong. The Court accepted these opinions.
- [12]The teacher’s mental state has been stable since early 2015. He has been compliant with medication and he has attended all appointments. His wife checks that he takes his medication. According to the psychiatrists, while there is always a risk of relapse with such a condition, the risks are reduced because of the teacher’s compliance and the support of his family. In August 2016 the treating psychiatrist expressed the opinion that a return to teaching would not place students at risk of physical or psychological harm.
- [13]We note that the teacher is not under any treatment order at present: the Mental Health Court decided that a forensic order was not necessary because the teacher had a very good history of compliance with treatment requirements. However the College, no doubt mindful of its responsibility to protect students, advises that if the teacher applies to again become registered, it will place a condition on his registration that he continues to comply with the treatment regime.
- [14]The teacher has never been charged with any other offences.
- [15]The College, having reviewed the significant body of additional evidence that it has obtained since making the referral, has come to the conclusion that a ground does not exist for disciplinary action.
- [16]We consider that the College’s conclusion is warranted in light of the additional evidence. Accordingly, it is appropriate to grant the College leave to withdraw the disciplinary referral.
Should a non-publication order be made?
- [17]In circumstances where the teacher was not criminally responsible for the assaults because of mental illness, and the disciplinary referral is being discontinued, it would be unfair for the teacher’s identity to be publicised. Accordingly, an order for non-publication in in the interests of justice is warranted under section 66 of the QCAT Act. Similarly, the privacy of the complainants as innocent victims should be protected by a non-publication order.