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Queensland College of Teachers v CMH[2017] QCAT 401

Queensland College of Teachers v CMH[2017] QCAT 401

CITATION:

Queensland College of Teachers v CMH [2017] QCAT 401

PARTIES:

Queensland College of Teachers

(Applicant)

v

CMH

(Respondent)

APPLICATION NUMBER:

OCR030-17

MATTER TYPE:

Occupational regulation matters

HEARING DATE:

19 October 2017

HEARD AT:

Brisbane 

DECISION OF:

Member Hughes

DELIVERED ON:

24 October 2017

DELIVERED AT:

Brisbane 

ORDERS MADE:

  1. The suspension of CMH’s teacher registration is continued.

CATCHWORDS:

EDUCATION – TRAINING AND REGISTRATION OF TEACHERS – where teacher suspended – where teacher failed to report student’s suicidal ideation – where teacher allowed student to stay at teacher’s residence overnight for extended period and socialised with her outside school hours – where teacher gave gifts to student – where teacher showed no insight or understanding of impact of behaviour on student or broader school community – where community must be confident that teacher is aware of impact of behaviour on others and how it might be perceived by a student and broader school community – whether teacher does not pose unacceptable risk of harm to children – whether suspension should continue

Education (Queensland College of Teachers) Act 2005 (Qld), s 3, s 49, s 53, s 54, s 55

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93

Queensland College of Teachers v LDW [2017] QCAT 48

Queensland College of Teachers v Teacher BYJ [2016] QCAT

Queensland College of Teachers v Teacher CXJ (No. 2) [2017] QCAT 166

Queensland College of Teachers v Teacher CXJ [2016] QCAT 511

Queensland College of Teachers v Teacher GXM [2016] QCAT 441

APPEARANCES and REPRESENTATION (if any):

APPLICANT:

Mr Carson Lloyd, Principal Legal Officer instructed by Mr David Pyree, Senior Legal Officer appeared for the Queensland College of Teachers

RESPONDENT:

No appearance

REASONS FOR DECISION

What is this Application about?

  1. [1]
    The Queensland College of Teachers suspended CMH’s registration as a teacher because it believed she was an unacceptable risk of harm to children.[1] The College has now applied to the Tribunal to continue that suspension.

Preliminary matter

  1. [2]
    Neither the teacher nor her legal representatives appeared at the hearing. However, the Tribunal received evidence that the Notice of Hearing was sent to the teacher’s representatives on 1 August 2017 and the College sent emails to the teacher’s representatives as recently as 16 October 2017[2] referring to the hearing.
  2. [3]
    The Tribunal was therefore satisfied that the teacher was given notice of the hearing and proceeded to hear the matter in her absence.[3]

What does the Tribunal do?

  1. [4]
    The Tribunal must continue the teacher’s suspension unless satisfied that she does not pose an unacceptable risk of harm to children.[4] This means that the teacher has the onus of proving that she is not an unacceptable risk of harm, based on compelling evidence – otherwise, the Tribunal must continue the suspension.[5] The teacher is effectively in a ‘show cause’ position.[6] A teacher will not discharge the onus of proof with inexact or flimsy evidence.[7]
  2. [5]
    The Tribunal must end the suspension if satisfied that the teacher does not pose an unacceptable risk of harm to children.[8] Because the Tribunal’s decision about continuing the suspension is in its original jurisdiction,[9] the teacher can apply to the Tribunal for review within 28 days of notice of this decision.[10]

What is an ‘unacceptable risk of harm’ to children?

  1. [6]
    The Tribunal has previously determined that an identified risk of harm must be significant to be unacceptable.[11] A mere possibility of harm is not sufficient.[12]
  2. [7]
    The Tribunal must balance the need to protect students from harm by a teacher’s inappropriate behaviour, against the potential harm to a teacher whose career is placed on hold due to an unjustified suspension.[13] However, because the provision is protective, the balance favours protecting students – consistent with the objects of the Act.[14]

What were the grounds of suspension?

  1. [8]
    The grounds for suspending the teacher were:
    1. (a)
      Inappropriate physical contact with a student by stroking or touching her arms in the classroom;
    2. (b)
      Inappropriate physical contact with the student by stroking or tickling her arm and touching her leg while driving her home after sports training;
    3. (c)
      Inappropriate physical contact with the student by holding her hand and stroking her hair on a sporting trip;
    4. (d)
      Inviting the student to the teacher’s place of residence outside school hours, including allowing the student to stay overnight;
    5. (e)
      Speaking to the student by telephone at night and outside school hours;
    6. (f)
      Giving a chocolate bar to the student with a note expressing intimate or overly familiar feelings towards her;
    7. (g)
      Giving a bracelet, watch and towel to the student;
    8. (h)
      Attending a coffee shop with the student outside school hours;
    9. (i)
      Attending a sushi restaurant with the student outside school hours;
    10. (j)
      Inviting and allowing the student to attend the teacher’s birthday party;
    11. (k)
      Inviting the student to stay at the teacher’s house and then lying beside the student on the teacher’s bed;
    12. (l)
      Hugging the student and allowing the student to kiss the teacher on the cheek during a sporting event;
    13. (m)
      Writing a leave pass for the student to enable her to attend the teacher’s classroom in the absence of other students on a number of occasions;
    14. (n)
      Giving the student a jacket and a pencil case for her birthday;
    15. (o)
      Engaging in unnecessary and inappropriate physical contact with the student by touching her legs and knees while seated in a circle with other students and while sitting opposite each other at dinner on a camp;
    16. (p)
      Inappropriately entering and remaining in the student’s tent on the same camp;
    17. (q)
      Failing to maintain appropriate boundaries by driving students to a fast food outlet and a café after school on a number of occasions;
    18. (r)
      Giving Christmas presents to two students.
  2. [9]
    During the hearing, the College informed the Tribunal of new evidence showing that the student referred to in allegation (c) did not attend that sporting trip. Consequently, the College withdrew that as a ground to suspend the teacher. The Tribunal will, therefore, not be considering that as a ground in considering whether to continue the teacher’s suspension.
  3. [10]
    Upon the Tribunal exploring the allegation of gift giving referred to in allegation (g), the College also conceded that the giving of the watch and towel was no longer a concern, but it maintained the giving of the bracelet as a ground to continue the suspension. The Tribunal accepts that the giving of the watch and towel is not a ground to continue the suspension given their minimal value and that similar gifts were given to a number of students.

What are the teacher’s submissions?

  1. [11]
    In deciding whether the teacher does not pose an unacceptable risk of harm to children, the Tribunal must consider her submissions.[15] In her submissions, the teacher strongly denied or provided explanations for most of the allegations in the grounds for suspension. She strongly denied the allegations in (a), (b), (c), (f), (l), (o), and (p) and provided explanations for the allegations in (d), (j), (k), (q) and (r). She did not specifically address the allegation in (n).
  2. [12]
    The teacher submitted that the College’s evidence to support the allegations is flimsy and should not be given significant weight. She said the evidence lacks detail and is not supported by independent sources such as school records. She raised what she said were serious credibility issues with key witnesses who were either disgruntled school girls who openly dislike her (one was expelled for throwing a text book at the teacher), a camp co-ordinator who only met her for a number of hours, and a former flatmate who was covertly filming her while she resided in his house.
  3. [13]
    The teacher also relied on witness statements from friends, a relative, and a colleague attesting to her professionalism as a teacher and that they had not observed any inappropriate interactions between the teacher and her students.[16] The relative also states that it was she – and not a student – who was seen by the teacher’s flatmate entering the teacher’s residence on one of the occasions the student is alleged to have stayed at the teacher’s residence.

What does the evidence show?

  1. [14]
    The Tribunal accepts that there are inconsistencies in the evidence. However, the Tribunal does not accept that these inconsistencies are of such magnitude to qualify as ‘flimsy’. To support the allegations, statements of evidence and transcripts of interviews were procured from 15 people, including children, teachers, a Deputy Principal, an instructor, and a parent.
  2. [15]
    Some inconsistencies are to be expected. It stretches credulity that every witness either colluded or has an ulterior motive to give evidence supporting such serious allegations. If the allegations do prove to be true, they are sufficiently serious to suggest an unacceptable risk of harm to children.
  3. [16]
    This is because they show a fundamental lack of understanding of the student-teacher relationship, without regard to the impacts of compromising that relationship, including the significant psychological and emotional impact on a student’s well-being and the disruption to the broader school community.[17]
  4. [17]
    The teacher also admitted the following conduct:
  • Failing to report a student’s suicidal ideation and depression and risk of harm;[18]
  • Allowing that student to stay at the teacher’s house overnight;[19]
  • Socialising with that student outside school hours;[20] and
  • Giving gifts to students.[21]

Does the teacher’s failure to report the student’s suicidal ideation show an unacceptable risk of harm?

  1. [18]
    Of the admitted behaviour, it is the failure to report the student’s suicidal ideation that is of most concern. Although not a ground for the original suspension, because the Tribunal is considering the continuation of the suspension, I am satisfied that the Tribunal can consider additional information provided by the parties since the suspension to determine whether the teacher is an unacceptable risk of harm to children. That is consistent with the protective nature of the provision.
  2. [19]
    The teacher attempted to explain her failing to report the student’s suicidal ideation by saying the student said she would commit suicide if the teacher advised her parents.[22] However, the teacher had an ongoing positive duty to report any risk of harm to the student. It is not an answer that the student did not want this. Children do not always act in their own best interests. The parents would understandably want – and need – to know of any suicidal thoughts expressed by the student. They should have been told.
  3. [20]
    The teacher’s explanation shows a lack of understanding of the student’s best interests. The teacher admits that she was not qualified to counsel a student in a depressive state.[23] This is the very reason to report the risk of harm. Schools have guidance counsellors specifically trained to address suicidal ideations and mental health issues.
  4. [21]
    The teacher’s failure to report the risk of harm to the student and later attempts – even now – to justify that failure show a lack of understanding or insight into the student’s welfare. The teacher should have sought help; the consequences of not seeking help were potentially irreversible. This alone is sufficient to show an unacceptable risk of harm.

Does allowing a student to stay overnight at the teacher’s residence and socialising with her show an unacceptable risk of harm?

  1. [22]
    The teacher attempted to explain her allowing the student to stay overnight at her residence and other socialising with the student outside school hours by saying that she was taken in by the family who approved of, or at least consented to, the interactions.[24] The teacher also claimed the Deputy Principal authorised the overnight stays,[25] but the Deputy Principal’s evidence does not support this.[26]
  2. [23]
    While parental consent may mitigate the conduct as it means the teacher would have been acting under an apprehension that the behaviour was appropriate, it does not obviate the need for the teacher to maintain professional boundaries. The Tribunal does not accept parental consent converts the teacher’s behaviour to an acceptable standard.
  3. [24]
    This is because a teacher’s duty to maintain professional boundaries not only benefits the immediate student, but extends to the entire school community. Seeking to have a particular student stay overnight at a teacher’s residence creates a perception of preferential treatment and can raise questions about the nature of the relationship – particularly over an extended period. Convenience for parents or to accommodate training does not explain why the same invitation was not extended to other students.
  4. [25]
    Individual parents are not in a position to waive compliance with a teacher’s professional boundaries on behalf of the entire school community. The teacher is in a position of influence with both the parents and the student, and must use that influence to further the best interests of the student and the broader school community. Seeking to have one student stay at the teacher’s residence does not further those interests – even if it is convenient for the parents of that student. 
  5. [26]
    While some level of social interaction is a necessary part of the student-teacher relationship, it must be strictly within the boundaries of that relationship. The Tribunal does not accept this extends to a student staying overnight at a teacher’s residence, even under the guise of a coach helping out her charge’s family as claimed by the teacher.[27]
  6. [27]
    The reasons should be readily apparent: the compromising of the student-teacher relationship; how it will be perceived by the student and other students; the potential disruption to the learning and welfare of the broader school community; and the potential for it to be used against the interests of both the student and the teacher. A parent’s consent does not abrogate these reasons. The teacher’s failure to show any understanding of this shows an unacceptable risk of harm.

Does the giving of gifts to the student show an unacceptable risk of harm?

  1. [28]
    While acknowledging that she should not have given gifts to students, the teacher states that any breach of the Code of Conduct was not intentional.[28] This suggests that the teacher was not aware that this behaviour is inappropriate.
  2. [29]
    Modest gift giving to students can be appropriate in some circumstances. For example, small edible treats of equal value given to all members of a sporting team as a reward for completing a vigorous training exercise might be appropriate. The Tribunal notes that the teacher gave students whom she coached gifts of similar value when she returned from an overseas holiday.[29] The Tribunal does not consider that this shows an unacceptable risk of harm to children.
  3. [30]
    However, teachers giving gifts to students is more likely to be inappropriate where it implies preferential treatment or raises questions about the nature of the relationship. The teacher did not dispute giving the student with whom she is alleged to have had the most serious interactions a jacket and pencil case for her birthday and also admitted giving her a designer-brand bracelet.[30]
  4. [31]
    Given these were of a higher value and for the benefit of one student on a special day only for that student, it shows preferential treatment for one student and indicates a transgressing of student-teacher boundaries. The teacher’s only explanation of seeking to “cheer up a student who was going through a difficult time”[31] does not show understanding or the development of any insight into those boundaries or her responsibility to other students and broader school community. This shows an unacceptable risk of harm.

Is the teacher an unacceptable risk of harm to children?

  1. [32]
    The teacher’s lack of understanding of the nature of her own admitted behaviour and its impact on others is contrary to the protective nature of her role and the objects of the legislation:
  • To uphold the standards of the teaching profession;
  • To maintain public confidence in the teaching profession;
  • To protect the public by ensuring education in schools is provided in a professional and competent way by approved teachers.[32]
  1. [33]
    According to the teacher, it is a situation where she failed to read the signs that a student was becoming too reliant upon her.[33] If this framing of the situation is true, not only did the teacher not read the signs but her own actions contributed to that reliance and thereby placed the student at an unacceptable risk of harm.
  2. [34]
    Perhaps somewhat paradoxically, the teacher also claims that the student “may have been involved in other activities” and that the teacher “may have been manipulated” by the student.[34] The teacher does not elaborate upon these activities or provide any evidence to support the allegation. Regardless, the statement shows a lack of insight into the relative power imbalance of the student-teacher relationship and appears to be seeking to transfer responsibility to the student. It is incumbent upon the teacher to ensure her actions do not leave her susceptible to manipulation.
  3. [35]
    The community must be confident that a teacher is aware of the impact of her behaviour on others sufficient to work with children. Even if the teacher’s version of the circumstances of the behaviour is correct, at no stage has she expressed any understanding or insight into why this behaviour could be inappropriate or the impact it might have on others, including how it might be perceived by a student and the broader school community.
  4. [36]
    The teacher may have a plausible explanation for at least some of the alleged incidents when taken in isolation. However, when considered together, they show a pattern of behaviour inconsistent with community expectations of proper student-teacher boundaries and a lack of understanding of, or regard for, those standards.[35]
  5. [37]
    The Tribunal accepts that continuing the suspension will disrupt the teacher’s career. However, the Tribunal does not accept that the teacher’s evidence supports a finding that she does not pose an unacceptable risk of harm to children. The teacher has not discharged the onus of proof. The provisions favour the protection of children.[36]
  6. [38]
    For these reasons, the Tribunal is satisfied that the evidence shows that the teacher is an unacceptable risk of harm to children sufficient to continue her suspension.

Non-publication order

  1. [39]
    The Tribunal has previously ordered the publication of any information that may identify the teacher, any of the students, or the school until further order.[37]
  2. [40]
    I see no reason to depart from that order and, accordingly, these reasons will be published in a de-identified format. 

 

Footnotes

[1]Education (Queensland College of Teachers) Act 2005 (Qld), s 49.

[2]Exhibits 1, 2.

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 93.

[4]Education (Queensland College of Teachers) Act 2005 (Qld), s 53(3)(b).

[5]Queensland College of Teachers v Teacher GXM [2016] QCAT 441, [21].

[6]Education (Queensland College of Teachers) Act 2005 (Qld), s 54(1)(b); Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [25]; Queensland College of Teachers v Teacher BYJ [2016] QCAT 504, [22].

[7]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [27]; Queensland College of Teachers v Teacher BYJ [2016] QCAT 504, [23].

[8]Education (Queensland College of Teachers) Act 2005 (Qld), s 55(2)(b).

[9]Education (Queensland College of Teachers) Act 2005 (Qld), s 53(2).

[10]Education (Queensland College of Teachers) Act 2005 (Qld), s 55(6).

[11]Queensland College of Teachers v Teacher GXM [2016] QCAT 441, [18]; Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [23]; Queensland College of Teachers v Teacher BYJ [2016] QCAT 504, [19]; Queensland College of Teachers v LDW [2017] QCAT 48, [14]; Queensland College of Teachers v Teacher CXJ (No. 2) [2017] QCAT 166, [22].

[12]Queensland College of Teachers v LDW [2017] QCAT 48, [14].

[13]Queensland College of Teachers v Teacher GXM [2016] QCAT 441, [18]; Queensland College of Teachers v Teacher CXJ [2016] QCAT 511,  [22]; Queensland College of Teachers v LDW [2017] QCAT 48, [15]; Queensland College of Teachers v Teacher CXJ (No. 2) [2017] QCAT 166, [22].

[14]Queensland College of Teachers v Teacher BYJ [2016] QCAT 504, [20]; Queensland College of Teachers v LDW [2017] QCAT 48, [17]; Queensland College of Teachers v Teacher CXJ (No. 2) [2017] QCAT 166, [22].

[15]Education (Queensland College of Teachers) Act 2005 (Qld), s 55(1)(b).

[16]Statement of DXP dated 11 June 2017; Statement of MXD dated 11 June 2017; Statement of WZR dated 10 June 2017; Statement of GME dated 12 June 2017; Statement of BVB dated 11 June 2017.

[17]Queensland College of Teachers v Teacher CXJ [2016] QCAT 511, [43].

[18]Statement of teacher dated 10 June 2017 at [129], [130], [229], [329], [461].

[19]Statement of teacher dated 10 June 2017 at [124], [134], [153], [239], [276], [333], [665].

[20]Statement of teacher dated 10 June 2017 at [133].

[21]Statement of teacher dated 10 June 2017 at [251], [252], [255], [395], [396], [398], [402], [406], [731].

[22]Statement of teacher dated 10 June 2017 at [661].

[23]Statement of teacher dated 10 June 2017 at [231].

[24]Statement of teacher dated 10 June 2017 at [125], [126], [133], [134], [239], [333], [665], [666].

[25]Statement of teacher dated 10 June 2017 at [620], [628], [629], [630].

[26]Interview Transcript of FVK dated 26 September 2016 at [234], [236], [254].

[27]Statement of teacher dated 10 June 2017 at [153], [276], [277]; Respondent’s Outline of Submissions dated 12 June 2017 at [108].

[28]Statement of teacher dated 10 June 2017 at [731].

[29]Statement of teacher dated 10 June 2017 at [255], [395], [398], [406].

[30]Statement of teacher dated 10 June 2017 at [251], [252], [396], [402].

[31]Statement of teacher dated 10 June 2017 at [252], [402]

[32]Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1).

[33]Statement of teacher dated 10 June 2017 at [331], [634]; Respondent’s Outline of Submissions dated 12 June 2017 at [119], [121].

[34]Statement of teacher dated 10 June 2017 at [676].

[35]Queensland College of Teachers v LDW [2017] QCAT 48, [23].

[36]Queensland College of Teachers v Teacher BYJ [2016] QCAT 504, [40].

[37]Directions dated 22 May 2017.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v CMH

  • Shortened Case Name:

    Queensland College of Teachers v CMH

  • MNC:

    [2017] QCAT 401

  • Court:

    QCAT

  • Judge(s):

    Member Hughes

  • Date:

    24 Oct 2017

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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