Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2018
  4. Queensland College of Teachers v JEV - [2018] QCAT 23

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Queensland College of Teachers v JEV[2018] QCAT 23

Queensland College of Teachers v JEV[2018] QCAT 23

CITATION:

Queensland College of Teachers v JEV [2018] QCAT 23

PARTIES:

Queensland College of Teachers

(Applicant)

 

v

 

JEV

(Respondent)

APPLICATION NUMBER:

OCR022-14

MATTER TYPE:

Occupational Regulation Matters 

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

Dr Wendy Grigg

Member Traves

DELIVERED ON:

25 January 2018

DELIVERED AT:

Brisbane

ORDERS MADE:

  1. JEV is prohibited from applying for registration or permission to teach for a period of 3 years from the date of this order.
  2. Pursuant to s 161(2)(d) of the Education (Queensland College of Teachers) Act 2005 (Qld), the following notation is entered into the register of approved teachers:
  1. Should JEV reapply for registration as a teacher after the expiry of the prohibition period, the application should include a detailed independent psychiatrist’s report addressing the following:
  1. Details of any history of any condition or disorder including any diagnosis and treatment;
  2. The significance of any mental illness, condition or disability in relation to suitability to work in a child related field/suitability to teach;
  3. The likelihood and/or level of risk of a repeat act of negligence by the respondent, including within a school environment;
  4. Assessment of level of “risk of harm to children” presented by the respondent, if any;
  5. Assessment as to any likely change of the respondent’s “risk of harm to children” as a result of exposure to relevant stressors likely to be experienced in performance of duties as a teacher in a school /school like environment (teaching);
  6. Any likely change as to the risk of harm to children as a result of any therapeutic or other treatment;
  7. Any recommended treatment relevant to reducing or alleviating any “risk of harm”.
  1. Any psychiatrist’s report referred to in clause 2(a) must also include confirmation that the author of the report was satisfied that the respondent adequately understood and has addressed the above points; and that the psychiatrist was provided with copies of this Decision and the section 97 amended referrals for disciplinary action dated 28 February 2017 and 12 September 2017.
  1. 3.
    Publication is prohibited of the names of the teacher known as JEV, and the children known as Child 1 and Child 2.

CATCHWORDS:

EDUCATION – SCHOOLS – TEACHERS’ EMPLOYMENT AND CONDITIONS OF SERVICE – DISCIPLINARY MATTERS – conviction for negligent acts causing harm – whether disciplinary ground exists – appropriate order

Criminal Code 1989 (Qld), s 3, s 328

Education (Queensland College of Teachers) Act 2005 (Qld), s 3(1), s 12, s 92(1), s 97, s 161(2), Schedule 3

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 32, s 66 s 107

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 167, Schedule 2

Queensland College of Teachers v Mills [2016] QCAT 60

Queensland College of Teachers v Plumbley [2017] QCAT 474

Queensland College of Teachers v Segger [2013] QCAT 960

Queensland College of Teachers v Teacher X [2016] QCAT 108

Queensland College of Teachers v TSV [2015] QCAT 186

APPEARANCES:      

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

REASONS FOR DECISION

Introduction

  1. [1]
    This matter arises from a mandatory referral by the Queensland College of Teachers to the Tribunal under s 97 of the Education (Queensland College of Teachers) Act 2005 (Qld) (Education Act).
  2. [2]
    In Queensland College of Teachers v Plumbley,[1] we set out relevant aspects of the disciplinary regime contained in the Education Act as follows:

Under s 97 of the Education Act, if the College reasonably believes that one or more grounds for disciplinary action against a “relevant teacher” exist, the College must refer the matter to a disciplinary body. In relation to this matter, the relevant body is QCAT. (Education Act,s 97(2)(a)) The College is required to inform the Tribunal about the grounds for the disciplinary matter and the facts and circumstances forming the basis of the grounds. (Education Act, s 97(4)(a)) The Tribunal is then to conduct a hearing and as soon as practicable after finishing the hearing, make a decision about the disciplinary matter having regard to the information provided by the College. (Education Act, s 97(4)(b); s 158)

“Relevant teacher” is defined to mean either an approved teacher or a former approved teacher. (Education Act, Schedule 3) “Former approved teacher” means a former registered teacher or a former holder of a permission to teach. (Education Act, Schedule 3) A “former registered teacher”, in relation to a disciplinary matter, means a person who was a registered teacher when the conduct to which the disciplinary matter relates happened and is no longer a registered teacher. (Education Act, Schedule 3)

  1. [3]
    JEV was registered as a teacher from 26 July 2010 to 26 July 2014.  The conduct to which the disciplinary matter relates occurred between 1 May 2013 and 4 May 2013. At that time, JEV was a registered teacher but is no longer registered. She is therefore a “relevant teacher” for the purposes of s 97.
  2. [4]
    The ground upon which the College relies as a basis for disciplinary action in its amended referral dated 12 September 2017 is s 92(1)(b).

Ground for disciplinary action

  1. [5]
    The grounds for disciplinary action against a teacher set out in s 92 include:

the relevant teacher has been convicted of an indictable offence that is not a serious offence, or an offence against this Act, except if, in relation to the conviction, the teacher becomes a relevant excluded person.[2]

  1. [6]
    On 4 February 2016, JEV was convicted of the offence “negligent acts causing harm” under s 328 of the Criminal Code.  This an indictable offence.[3]
  2. [7]
    “Serious offence” is defined by reference to s 167 of the Working with Children (Risk Management and Screening) Act 2000 (Qld).[4] The offences listed as serious offences in Schedule 2 of the Working with Children Act do not include the relevant offence.
  3. [8]
    The ground in s 92(1)(b) has been satisfied.

Appropriate order against former approved teacher

  1. [9]
    Section 161 applies to a former approved teacher.  It sets out the actions which may be taken by the Tribunal where it has determined that a ground for disciplinary action against the teacher has been established.
  2. [10]
    The parties have filed a statement of agreed facts which sets out the particulars of the offence as follows:

That between the 1st day of May 2013 and the 4th day of May 2013 at Morayfield in the State of Queensland one [JEV] unlawfully omitted to take the precautions that are reasonable in all the circumstances to avoid danger to the life, health or safety of a child namely [Child 1], which it was her duty to do, and thereby actually caused bodily harm to [Child 1].

  1. [11]
    JEV was sentenced to 12 months’ probation and no conviction was recorded.
  2. [12]
    We have had regard to the report of Dr Maree Crawford, Consultant Paediatrician, dated 17 May 2013 to provide additional context to the particulars of the offence set out in the agreed facts. Dr Crawford relevantly stated:

I examined him on the afternoon of 4th May and found in particular the following bruises which had also been documented by QPS photographers.

  • Small circular bruises to left face over the jaw line
  • Areas of petechial bruising on neck bilaterally
  • Small circular bruises on back
  • 2 parallel petechial (bleeding within the skin) lines on anterior left chest
  • Tiny bruise central forehead
  • Bruising to the lateral aspects of the shaft of the penis

Additionally on examination of his mouth there were two areas of injected red mucosa at the tonsillar fossae lateral to the uvula or soft palate.  On the left side there was an area of pallor indicating mucosal abrasion and on the right a smaller area of mucosa abrasion.  There were no other sides of bleeding visible.  These injuries were photographically recorded on 6th May.

On examination of the anus there was a recent tear at the anal verge of approximately 0.5 cm without any active bleeding.  This injury was video recorded on 4th May.

[Child 1] was plethoric (red coloured from high haemoglobin level) and was jaundiced under phototherapy.

[Child 1] had additional investigations including the following:

  • Normal extended coagulation testing which excludes any cause of bruising with minimal trauma
  • Normal cranial MRI
  • Normal retinal eye examination
  • Skeletal survey on 6th May identified an irregularity of the distal right femoral metaphysic indicating either a possible fracture or physiologic variant.  There was no evidence of other bony injury.
  • Repeat skeletal survey on 17th May shows the following injuries:
    • Healing fractures of left 5th, 6th, 7th, 8th and 9th ribs anteriorly
    • Left 5th and 6th rib fractures anterolaterally
    • Fractures of right 4th, 5th, 6th and 7th ribs anteriorly
    • Fracture of left distal radial and ulna metaphyses (at junction of bone and cartilage growth plate of the wrist)
    • Fracture of right distal tibia and fibula metaphyses
    • All these fractures are of similar age with early healing callous (new hearing bone) of 10-14 days age.

Suspected femoral metaphyseal chances on previous skeletal survey were confirmed not to be a fracture but rather a physiologic variant.

[Child 1] has had further blood investigations exploring possible bone disorders which might contribute to abnormal bone fragility however radiologically there is no indication of abnormal bone density.  These results are still pending.

  1. [13]
    In Dr Crawford’s opinion, in the absence of other explanations, Child 1 suffered multiple inflicted injuries while in the care of his parents.
  2. [14]
    Not surprisingly, notifications were made to the Department of Communities, Disabilities and Child Safety (Child Safety) in respect of Child 1 and his sibling, Child 2.  This led to Child 1 and Child 2 being assessed as “children in need of protection”.  They were placed in the care of their maternal and paternal grandparents.
  3. [15]
    JEV filed an affidavit with the Tribunal on 15 March 2017, detailing the supervision of Child 1 and Child 2 by Child Safety.  Relevantly, Child 1 commenced overnight stays with JEV and her husband in June 2016.  By November 2016, both Child 1 and Child 2 were staying with them full-time.  The amended referral dated 12 September 2017 records that the final custodial child protection order ended on 15 June 2017, over four years after the date of the offence.
  4. [16]
    In arriving at an appropriate order, we have had regard to the observations of the Tribunal in Queensland College of Teachers v TSV:[5]

The purpose of disciplinary action is not to punish the teacher. Instead, it is to further the objects of the EQCT Act. These include upholding the standards of the teaching profession, maintaining public confidence in the profession, and protecting the public by ensuring that education is provided in a professional way.(s 3(1)) It is essential that persons registered as teachers do not pose a risk of harm to children.(Queensland College of Teachers v Genge [2011] QCAT 163 at [12]) Although punishment is not the aim, deterrence is a relevant consideration. The sanction imposed must provide “general deterrence to the members of the teaching profession and specific deterrence to further irresponsible conduct by the teacher in question”. (Queensland College of Teachers v Brady [2011] QCAT 464 at [55]).

  1. [17]
    Under s 161(2)(a), the Tribunal can decide to take no further action in relation to the matter.  This was the disciplinary action agreed to by the parties in joint submissions filed on 9 October 2017.  While the parties have agreed upon disciplinary action, it is nevertheless open to the Tribunal to determine a disciplinary action to be taken other than that jointly proposed.  We consider that the jointly proposed disciplinary action falls outside the permissible range for the conduct, given the particular circumstances of the matter.[6]
  2. [18]
    We note that the joint submissions place considerable reliance on a report from Dr Simone Baker, Clinical Psychologist and Neuropsychologist, dated 7 July 2017.  This report was characterised as providing “a favourable overall assessment” about whether JEV could protect children from harm.  However, there are a number of comments by Dr Baker which give us cause to question that characterisation.
  3. [19]
    Firstly, it is apparent from Dr Baker’s report that JEV displays limited insight into her offending:

Her affect was somewhat reactive and appropriate, that is, her mood generally changed to match the content of her speech.  However, she appeared unemotional, detached and dispassionate when describing the nature of [Child 1’s] injuries.

[JEV] displayed limited insight and judgment into the cause, significance or explanation of the injuries sustained by [Child 1 and Child 2].  As such, she steadfastly maintained that the injuries were attributed to “medical causes” in spite of overwhelming expert opinion to the contrary.

  1. [20]
    Secondly, Dr Baker’s report indicates that JEV has little motivation to acquire such insight:

[JEV’s] interest in and motivation for treatment is somewhat below average in comparison to adults who are not being seen in a therapeutic setting. Furthermore, her level of treatment motivation is substantially lower than is typical of individuals being seen in treatment.  Her responses suggest that she is satisfied with herself as she is, that she is not experiencing market distress, and that, as a result, she sees little need for changes in her behaviour.

  1. [21]
    Thirdly, Dr Baker notes that JEV meets the subclinical criteria for Schizoid Personality Disorder and Autism Spectrum Disorder, Asperger’s Type:

This was evidenced by [JEV’s] aloof, cold, and indifferent, description of child custody matters.  Further, she placed a minimal value on relationships with others and indifference to criticism.  She reported a detachment from others and maintained fixed and rigid beliefs in spite of overwhelming evidence to the contrary.  She displayed diminished empathy and difficulty in seeing things from another’s perspective.  [JEV] displayed a history of passivity in the face of unfavourable situations, and her communication with other people may be characterised as indifferent and terse at times.  [JEV] also appears challenged to achieve self-awareness and her ability to assess the impact of her own actions in social situations continues to be limited.

  1. [22]
    Fourthly, Dr Baker assesses the impact of these disorders on JEV’s ability to protect children as follows:

Individuals with [Autism Spectrum Disorder] often transgress rules at school, with people, and in the community at large, and their behaviour may indeed lead to formal encounters with school authorities or law enforcement officers.  However, these individuals typically do not engage in these acts wilfully or maliciously.  Their social ineptitude and unawareness of social rules and expectations may lead them, for example, to make blunt requests of a sexual nature; or their intense and all-absorbing circumscribed interests may lead them to commit eccentric acts associated with those interests.  As such, it is my opinion that [JEV’s] idiosyncratic personality traits has contributed to her inability to protect her children from harm.

  1. [23]
    Fifthly, Dr Baker noted the following limitation in JEV’s capacity to protect children:

As mentioned above, on the basis of previous cognitive assessment, [JEV] displayed a relative weakness in her attentional capacity, which may impact on her ability to process complex information particularly in environments where there are several competing demands for her attention.  As such, this may impact on her ability to process and rapidly respond to verbally presented information.

  1. [24]
    These observations of Dr Baker, although not her overall conclusion, are consistent with a report obtained by Child Safety from Lynda Troy, Clinical and Neuropsychologist, dated 12 April 2016.  Ms Troy relevantly observed:

JEV has a rather unusual personality structure, with grossly intact cognitive functioning, emotional detachment and rather fixed beliefs about how things should work and which information is relevant.  She will persist with those beliefs in the face of overwhelming evidence to the contrary, however will be able to adapt her behaviour and rationalise to fit with the beliefs of others, if she is unable to achieve her goals.  The focus of any intervention therefore would be to work on a functional level, rather than working to change her beliefs.  It is not her atypical emotional processing and personality which places the children at risk, more perhaps the fact that she may miss important information or misjudge situations as she is missing information that most of us use in parenting, and she requires some help in filling those gaps using her intact cognitive processes.  I note however that due to the nature of her difficulties in emotional processing, her ability to regulate her emotional responses could not be directly assessed, and it is possible that this may remain a possible risk factor, although she reports it is under control.

  1. [25]
    Having regard to:
  1. the nature of the offence, involving negligent acts leading to harm to children;
  2. the comments of Dr Baker and Ms Troy as set out above; and
  3. the lengthy period of involvement of Child Safety, which ended only recently,

our view is that JEV is not, at this time, suitable to teach.

  1. [26]
    Section s 161(2)(c) provides that:

…if QCAT would have made an order cancelling the teacher’s registration or permission to teach if the teacher had been an approved teacher—make an order prohibiting the teacher from reapplying for registration or permission to teach for a stated period from the day the order is made or indefinitely…

  1. [27]
    In this case, given the circumstances of the relevant offences, we would have cancelled JEV’s registration had she been an approved teacher.
  2. [28]
    The joint submissions referred to a number of cases where grounds existed under s 91(1)(b).  The offences ranged from fraud,[7] stealing and forgery,[8] and unlawful stalking directed towards an adult male sports instructor.[9]  In our view, these cases are not analogous to the circumstances in this case in that they do not involve offences resulting in harm to children.
  3. [29]
    In all the circumstances, we are of the view that JEV should be prohibited from applying for registration or permission to teach for a period of three years from the date of this order.  We note that this is the disciplinary action originally sought in the further amended referral dated 28 February 2017 (which was superseded by the amended referral dated 12 September 2017).
  4. [30]
    Further, given the background to and nature of the offences, we consider it appropriate that any application for registration by JEV in the future should demonstrate her fitness to teach. While JEV has been assessed by Dr Baker and Ms Troy, who are both psychologists, we consider it would be desirable for her to be assessed by a psychiatrist given the differences in their diagnoses.
  5. [31]
    The Tribunal may make orders under s 66 of the QCAT Act prohibiting the publication of information which may identify a party or any other person affected by a proceeding for among other reasons the interests of justice. In this case, Child 1 and Child 2 deserve to have their confidentiality protected so that they are not adversely affected by the matters disclosed in this matter. By necessity that will mean that the identity of JEV will be subject to the non-publication order as well.
  6. [32]
    The orders of the Tribunal are:
    1. JEV is prohibited from applying for registration or permission to teach for a period of three years from the date of this order.
    2. Pursuant to s 161(2)(d) of the Education Act, the following notation is entered in the register of approved teachers:
  1. Should JEV reapply for registration as a teacher after expiration of the prohibition period, the application should include a psychiatrist’s report addressing the following:
  1. details of any history of any disorder including any diagnosis and treatment;
  2. The significance of any mental illness, condition or disability in relation to suitability to work in a child related field/suitability to teach;
  3. The likelihood and/or level of risk of a repeat act of negligence by the respondent, including within a school environment;
  4. Assessment of level of “risk of harm to children” presented by the respondent, if any;
  5. Assessment as to any likely change of the respondent’s “risk of harm to children” as a result of exposure to relevant stressors likely to be experienced in performance of duties as a teacher in a school /school like environment (teaching);
  6. Any likely change as to the risk of harm to children as a result of any therapeutic or other treatment; and
  7. Any recommended treatment relevant to reducing or alleviating any “risk of harm”.
  1. Any psychiatrist’s report referred to in clause (1) must also include confirmation that the author of the report was satisfied that the respondent adequately understood and has addressed the above points; and that the psychiatrist was provided with copies of this Decision and the section 97 amended referrals for disciplinary action dated 28 February 2017 and 12 September 2017.
    1. Publication is prohibited of the names of the teacher known as JEV, and the children known as Child 1 and Child 2.

Footnotes

[1][2017] QCAT 474.

[2]Education Act, s 92(1)(b).

[3]Criminal Code, s 3(3).

[4]Education Act, Schedule 3.

[5][2015] QCAT 186, [25].

[6]See Queensland Collee of Teachers v Mills [2016] QCAT 60, [8].

[7]Queensland College of Teachers v Segger [2013] QCAT 960.

[8]Queensland College of Teachers v Teacher X [2016] QCAT 108.

[9]Queensland College of Teachers v Mills [2016] QCAT 60.

Close

Editorial Notes

  • Published Case Name:

    Queensland College of Teachers v JEV

  • Shortened Case Name:

    Queensland College of Teachers v JEV

  • MNC:

    [2018] QCAT 23

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell, Grigg, Member Traves

  • Date:

    25 Jan 2018

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Queensland College of Teachers v Brady [2011] QCAT 464
1 citation
Jump To
Cite 1 - [2011] QCAT 464
Queensland College of Teachers v Genge [2011] QCAT 163
1 citation
Jump To
Cite 1 - [2011] QCAT 163
Queensland College of Teachers v Mills [2016] QCAT 60
3 citations
Jump To
Cite 1 - [2016] QCAT 60
Cite 2 - [2016] QCAT 60
Cite 3 - [2016] QCAT 60
Queensland College of Teachers v Plumbley [2017] QCAT 474
2 citations
Jump To
Cite 1 - [2017] QCAT 474
Cite 2 - [2017] QCAT 474
Queensland College of Teachers v Segger [2013] QCAT 960
2 citations
Jump To
Cite 1 - [2013] QCAT 960
Cite 2 - [2013] QCAT 960
Queensland College of Teachers v Teacher X [2016] QCAT 108
2 citations
Jump To
Cite 1 - [2016] QCAT 108
Cite 2 - [2016] QCAT 108
Queensland College of Teachers v TSV [2015] QCAT 186
2 citations
Jump To
Cite 1 - [2015] QCAT 186
Cite 2 - [2015] QCAT 186

Cases Citing

Case NameFull CitationFrequency
Stewart v Stephens & Tozer Solicitors [2022] QCAT 1821 citation
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.