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CTA v Director-General, Department of Justice and Attorney-General[2021] QCAT 442

CTA v Director-General, Department of Justice and Attorney-General[2021] QCAT 442

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

CTA v Director-General, Department of Justice and Attorney-General [2021] QCAT 442

PARTIES:

cta

(applicant)

v

Director-General, department of justice and attorney-General

(respondent)

APPLICATION NO/S:

CML215-20

MATTER TYPE:

Childrens matters

DELIVERED ON:

21 December 2021

HEARING DATE:

21 September 2021

HEARD AT:

Toowoomba

DECISION OF:

Member Hemingway

ORDERS:

  1. The Decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  2. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the publication of:
    1. (a)
      the contents of a document or thing filed in or produced by the Tribunal.
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      any order made or reasons given by the Tribunal

is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

  1. The Application by the Applicant for costs is dismissed.

CATCHWORDS:

FAMILY LAW AND CHILD WELFARE – CHILD WELFARE UNDER STATE OR TERRITORY JURISDICTION AND LEGISLATION – OTHER MATTERS – where applicant seeks a review of decision to issue a negative notice and cancel blue card – where applicant has a criminal history without any serious or disqualifying offences – where nurse – where convictions for stealing by clerks and servant and fraud, dishonestly obtain property from another employee, theft involved drugs morphine and pethidine and fentanyl, ingesting drugs at work – whether exceptional circumstances exist – whether it is in the best interests of children to issue a positive notice-Costs application

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 66

Working with Children (Risk Management and Screening) Act 2000 (Qld), s 5, s 6, s 221, s 226

Human Rights Act 2019 (Qld), s 8, s 58, s 31

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492

Re TAA [2006] QCST 11

Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 17

Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291

Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (‘Grindrod’) [2008] WASAT 289

Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243

HAM v Director General Department of Justice and Attorney-General [2021] QCAT 28

HM v Director General D department of Justice and Attorney-General [2021] QCAT 13

ML V Director General Department of Justice and Attorney-General [2020] QCAT 13

FBN v Director General, Department of Justice and Attorney General [2021] QCAT 260

DBC v Director General Department of Justice and Attorney-General [2021] QCAT 21

APPEARANCES &

REPRESENTATION:

 

Applicant:

Mr Chappel, Murdoch lawyers

Respondent:

Mr D Taylor of Counsel

REASONS FOR DECISION

Background

  1. [1]
    This is an application for review of a decision by the Director-General, Department of Justice and Attorney-General (‘the Respondent’) that the case of CTA (‘the Applicant’) was an ‘exceptional case’ within the meaning of s 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC Act’).
  2. [2]
    Previously a nurse, the Applicant seeks a Blue Card to continue work with F organisation with vulnerable adults and children. She was previously issued with a Blue Card on 7 January 2011 which expired on 7 January 2014.
  3. [3]
    The Applicant was convicted in the Magistrates Court on 27 February 2013 and on 13 February 2018 under the Criminal Code (Qld) of stealing by clerks and servant and 2 counts of fraud – dishonestly obtaining property from another employee.
  4. [4]
    The Respondent wrote to the Applicant on 14 February 2019 including copies of the police information received by the Respondent concerning her Blue Card application. The letter invited the Applicant to respond to the police information and provide submissions relevant to the Applicant’s suitability to have a Blue Card.
  5. [5]
    The Applicant was advised by letter dated 15 May 2020 that her eligibility to hold a Blue Card had been re-assessed after receipt of her submissions. The Respondent issued her a negative notice under the WWC Act. The Applicant was provided with written notice of this decision, reasons for the decision and the relevant review information.
  6. [6]
    On 10 June 2020 the Applicant applied to the Queensland Civil and Administrative Tribunal for a review of the decision of the Respondent to issue her with a negative notice.

Legislative Framework

  1. [7]
    The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children in Queensland through a screening process of people seeking employment in child-related areas, or who operate relevant businesses.[1]
  2. [8]
    The WWC Act provides that the welfare and best interests of children is paramount.[2] The Act must be administered in accordance with this principle.
  3. [9]
    Section 221 of the WWC Act provides for the issue of a positive notice to a person, except where the chief executive finds that an exceptional case exists.
  4. [10]
    The decision under review is whether an exceptional case exists such that the presumption under section 221 of the WWC Act is rebutted. The purpose of the review of the decision of the Respondent to issue a negative notice by this Tribunal, is to produce the correct and preferable decision.[3]
  5. [11]
    The issue for determination then where the convictions do not relate to a serious or disqualifying offence is whether an exceptional case exists.[4]
  6. [12]
    The WWC Act does not define ‘exceptional case’. In the decision in Commissioner for Children and Young People and Child Guardian v FGC, what is an ‘exceptional case’ is a question of fact and degree to be decided in each individual case, having regard to: “… the context of the legislation which contains them, the intent and purpose of that legislation, and the interests of the persons whom it is here, quite obviously, designed to protect children”.[5]
  7. [13]
    In reaching a decision, the Tribunal must consider the mandatory considerations under section 226 of the WWC Act and the paramount principle under sections 360 and 6(a) of the WWC Act and any other relevant factors.
  8. [14]
    To issue a negative notice to the Applicant, the Tribunal must be satisfied on the balance of probabilities and bearing in mind the gravity of the consequences involved, that an exceptional case exists in which it would harm the best interests of children for a positive notice to be issued.[6]
  9. [15]
    The standard of proof is that the Tribunal must be satisfied on the balance of probabilities.[7] The Tribunal accepts that the gravity of the consequences relates to the effects upon children were a Blue Card to issue. The burden of proof in proving an exceptional case exists is not borne by either party.[8]
  10. [16]
    It has been established that any hardship or prejudice suffered by the Applicant due to the determination is not relevant to the finding of an exceptional case.[9]
  11. [17]
    Section 226(2)(a) of the WWC Act requires that the Tribunal must consider the following matters:

Whether the offence is a charge or conviction

  1. [18]
    The Applicant has one conviction for stealing by clerks and servants and two convictions for fraud-dishonestly obtaining property from another employee. The offences do not fall within the scope of serious or disqualifying offences as defined in the WWC Act.
  2. [19]
    The first conviction was for stealing by clerks and servants between 31 January 2011 and 21 September 2011. The Applicant was convicted but no conviction was recorded, and the Applicant was sentenced to a twelve-month good behaviour bond with a $2000 recognisance.
  3. [20]
    The Police brief records details as follows:

Following a complaint about her, the Applicant, a Clinical nurse employed by Queensland Health on a permanent basis since 29 June 2009 was suspected of stealing morphine and pethidine ampoules. The complaint arose from an audit of schedule 8 drugs at B hospital which identified discrepancies in the period January 2011 to 21 September 2011. The audit revealed discrepancies on 15 Occasions.

The Applicant attended an interview with Brisbane City CIB on 15 January 2013 where she took part in an electronic interview stating that she had been dispensing morphine and pethidine from the pharmacy to the ward and or patients; but taking it for her own use between 31 January 2011 and 21 September 2011. She stated to police that she did this because of her anxiety and isolation. The Applicant was the person last in possession of 30 ampoules of morphine and 12 ampoules of pethidine that were unaccounted for.

The Applicant expressed remorse at interview and stated that she had sought professional assistance for her drug use.

  1. [21]
    The second conviction was for fraud – dishonestly obtaining property from another employee between 5 December 2016 and 15 December 2017. She was convicted on all charges and a conviction was recorded. She was sentenced to a four-month term of imprisonment which was wholly suspended for 18 months.
  2. [22]
    The Police brief records details as follows:

that the Applicant was employed at L hospital by the Y organisation as a registered nurse from 11 October 2015. In 2017 she obtained a permanent position as a clinical nurse and relieved as Nurse Unit Manager for two lengthy periods. She was employed in a non-clinical role as a nurse navigator from 30 October 2017.

On the 10 November 2017 at 2pm, an Enrolled Nurse observed that a 10 mg ampoule of morphine had been signed out for a patient at 9am that morning but the chart did not show it as having been administered to the patient. The patient confirmed not receiving any medication since 2.15am on 10 November 2017.

An examination of the drug register revealed numerous discrepancies. These included the following facts:

Two signatures in the drugs register were not recognised as belonging to anyone on that shift. Inquiries with staff failed to identify anyone who administered the drug to a patient if at all. Inquiries with the Applicant confirmed she had the keys to the drug cabinet; however, she had a reason for having the keys. An inspection of the morphine drug register was commenced by the Nurse Unit Manager. The Applicant during the inquiry suggested to the Nurse Unit Manager that they make a new Register and made numerous inquiries regarding the progress of the audit.

Inspections of the drug register revealed numerous discrepancies and inconsistencies. The discrepancies included missing stock, fictitious entries in the drug register and the miscalculated amounts of ampoules transferred from the pharmacy to the ward. Further enquiries revealed the following:

  • Numerous entries in the Drug Register where the Applicant had signed out 10mg ampoules of morphine, 30mg ampoules of morphine and 100 mg ampoules of fentanyl;
  • Discrepancies in total numbers of ampoules transferred from the Pharmacy register to the Ward register;
  • Co-signatories were unable to be identified, some signatures were like that of some staff, but staff had no knowledge of these entries;
  • On 5 September 2017, 13 ampoules of expired stock were not properly accounted for and evidence of signing out drugs to non-existent patients;
  • On 15 September 2017, an entry that the Applicant agreed was her signature, showed 1 ampoule of 100mg of fentanyl was signed out to patient of which the hospital held no record;
  • The Applicant agreed after reviewing signatures in the register were placed fraudulently and were similar to other staff  signatures;
  • The Applicant agreed that in her role as Nurse Unit manager she had increased access to drugs and that she agreed to level of theft increased in accordance with the seniority of role;
  • She stated that she had suffered from depression due to living in L, not having an interest in the outback lifestyle, having no friends outside of work and not being able to have children.
  1. [23]
    On 16 November 2017 the Applicant told Queensland Police (CIB) that she had been stealing morphine from the hospital for her personal use. Later that day she advised the Queensland Health Service that she had been stealing morphine and using it whilst working.
  2. [24]
    An audit was followed by a Police investigation and colleagues of the Applicant were interviewed. They failed to identify their own signatures and were unable to identify the fictitious entries.
  3. [25]
    Other concerns were raised by an enrolled nurse who stated that after the Applicant had used a particular toilet at the hospital, that there were bloody tissues and 15 torniquets located in that toilet area. The torniquets were normally stored elsewhere.
  4. [26]
    On 27 November 2017 at an electronic record of interview, the Applicant admitted to stealing Schedule 8 drugs, using left over morphine initially, and that during a
    12-month period she stated that she had progressed to stealing one 10 ml ampoule, then three 10 ml ampoules and using them each shift.
  5. [27]
    She stated that one of the ways she would obtain the drugs was by writing that the drugs were for a patient and using them herself. She then stated that she never deprived patients of medication that they ‘actually required’.[10]
  6. [28]
    The audit revealed that there were 256 ampoules of drugs missing. These included: 188x10mg x 1ml ampoules of morphine; 3x30 mgx1ml ampoules of morphine;
    64x100mg x 2 ml of fentanyl; and 1x1mg x1ml ampoule of alfentanil.

When the offence was committed

  1. [29]
    The offences were committed in 2011 and in 2017 during work when the Applicant was employed as a nurse caring for patients.

The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children –

  1. [30]
    The Applicant was employed by Queensland Health between 2009 and 2017. Her various roles included as a registered nurse, a clinical nurse, nurse unit manager (NUM) and nurse navigator which is a non-clinical role. Necessarily this involved contact with children as the Applicant specifically refers in her evidence to assisting children in the course of her work. [11]
  2. [31]
    The Applicant’s evidence was that she had contact with extremely vulnerable children, including extensive daily contact with disadvantaged and abused children.[12]
  3. [32]
    She confirms that she stole Schedule 8 drugs and used them during her nursing shifts. She describes the effect of the drugs upon her in her life story.[13] In this paragraph she states she felt ‘warmth and calmness when using morphine’.
  4. [33]
    This would indicate that the drugs the Applicant ingested whilst working as a nurse caring for patients did affect her and she was aware of this when she was a nurse with the care of patients including children.

In the case of a conviction – the penalty imposed by the Court

  1. [34]
    In respect of the first charge the Applicant was convicted, but no conviction was recorded, and she was given a twelve-month good behaviour bond with $2000 recognisance. In respect of 2017 offences, she was convicted on all charges and a conviction was recorded. She was sentenced to 4-month term of imprisonment which was wholly suspended after 18 months. The Tribunal notes that the Applicant was a repeat offender, and her penalty was increased to a term of imprisonment wholly suspended, and a conviction recorded on the second occasion. The facts of the offences are similar which would suggest that the first penalty did not deter the Applicant. In fact, the second period of offending involved greater consumption of the stolen drugs and careful actions by the Applicant to steal and conceal the thefts by the abuse of drug-handling protocols.

Any information about the person given to the chief executive by a mental health practitioner under section 318 and 319

  1. [35]
    The Tribunal has not been supplied with any relevant information regarding this criterion.

Any report about the person’s mental health given to the chief executive by the Mental Health Court under section 335

  1. [36]
    The Tribunal has not been supplied with any relevant information regarding this criterion.

Any information about the person given to the chief executive under section 337 or 338

  1. [37]
    The Tribunal has not been supplied with any relevant information regarding this criterion.

Any information about the person given to the chief executive under the Disability Services Act 2006 (Qld), s 138ZG

  1. [38]
    The Tribunal has not been supplied with any relevant information regarding this criterion.

Anything else relating to the commission, or alleged commission of the offence that the chief executive reasonably considers to the assessment of the person

  1. [39]
    The Tribunal notes the discussion in the Applicant’s and the Respondent’s material concerning other relevant matters in terms of section 226 WWC Act.
  2. [40]
    The Applicant submits that the other relevant circumstances are that the Applicant’s evidence is consistent with that given by other witnesses such that this provides support for her position that she is not a risk to children. The Applicant contends that she displays genuine insight and remorse into the harm caused by her unlawful offending. It is submitted that she is acknowledging this by sharing her feelings of guilt and shame with her friends, family and has discussed this issue with her psychologist. Her psychologist’s evidence is that he is convinced her remorse is genuine.
  3. [41]
    The impact of the transferable nature of the Blue Card is also a factor discussed by the Applicant. Her submission is that, as she is no longer a nurse and so does not have access to drugs or is living in a remote community, that the risk of drug-abuse associated with these factors is extinguished. In her proposed new role, she would only be with children when parents were present.
  4. [42]
    The Respondent submits that other relevant factors are numerous and involve an examination of the questions raised by the applicant’s narrative regarding her recent offending. The respondent contends that the applicant did see a psychologist after the 2011 offending but that she re-offended. The Respondent states and that her explanations of her 2017 offending are similar to the account given in 2011 when she was apprehended. This would lead to a conclusion that the explanations given by Applicant demonstrate that the issues leading to the offending on the second occasion were not addressed.
  5. [43]
    The Respondent submits that the facts indicate that there are multiple inconsistencies between the account of the Applicant in her life history and other contemporaneous records. She has had previous drug experience with cocaine and ecstasy which she failed to mention in her material. It also appears that the Applicant sought out opportunities to work remotely with vulnerable communities and only left after being charged with the offences.
  6. [44]
    The Respondent submits that the facts indicate that Applicant’s substance abuse history is concerning when the Notice to Produce documentation is reviewed. These documents provide concerning additional details from the hospital and health service records from two health services and a Mental Health Assessment dated 5 December 2017.
  7. [45]
    The Respondent submits that the facts raise questions about risk of repeat offending given the identical nature of the repeat offending against a background of a long history of deliberate concealment.
  8. [46]
    The Respondent submits that the facts indicate that the Applicant did not disclose her history of substance abuse to her treating practitioner.
  9. [47]
    The Respondent submits that the Applicant consistently minimised her offending and demonstrated a lack of insight into the significance of this in submissions.
  10. [48]
    The Respondent lists additional considerations that the Tribunal should have regard to. These include unresolved psychological issues, history of substance abuse, risk of reoffence, minimisation of offending and lack of insight.

Submissions of the Respondent

  1. [49]
    The Respondent states that of serious concern is the fact that the offences occurred whilst the Applicant was working as a nurse. Both morphine and fentanyl are known to cause several harmful effects including feelings of nausea and confusion and which have the capacity to detract from a person’s ability to provide a protective environment for others. The user then places their own needs above the needs of vulnerable and dependant people (including children) at risk of neglect of their immediate physical and emotional needs.
  2. [50]
    The Applicant occupied a position of trust and authority (where she would have been entrusted to ensure the safety and well-being of patients) which she breached daily when offending. This is entirely inconsistent with the standards expected of blue card holders where children and young people are completely reliant on blue card holders to act in their best interest at all times.
  3. [51]
    The Applicant was a mature person at the time of their offending. The Respondent states that the Applicant’s actions were deliberate and calculated involving forging entries in the drugs register and making fictitious entries and forging signatures of others designed to enable her to access drugs. The Respondent states that the Applicant sought out positions regarding the drugs register where she could steal drugs more easily.
  4. [52]
    In 2011, the Applicant stated that her actions were to cope with anxiety and depression and in 2017 she stated to Police that her drug use was to cope with depression and isolation. The Applicant’s explanation of her 2017 offending is like the account given in 2011 when she was apprehended. The Respondent contends that her drug use was a continuing response to her psychological issues, and these were not addressed by the assistance she received between 2011 and 2017. This leads to a concern that her substance-abuse issues are not resolved.
  5. [53]
    The Respondent states that, whilst the Applicant has identified her behaviour and expressed remorse, she has not demonstrated that she can abstain from drug use in the long term. The Respondent states that there remain concerns about the Applicant’s substance abuse history and her risk of repeat offending given the identical nature of the 2011 and the 2017 offending and her stated causes for this.
  6. [54]
    That the Applicant’s account contains inconsistencies compared to other contemporaneous records indicates that her account is unreliable.
  7. [55]
    The Respondent contends that there are significant risk factors because of her long history of deliberate concealment of drug use and the extent of her drug use from family, friends, colleagues and treating practitioners.
  8. [56]
    The Respondent did see a psychologist after the 2011 offending despite making a contrary submission. The psychological assistance did not enable her to cease her drug use, in fact it increased.
  9. [57]
    The Respondent submits that the Applicant continues to minimise offending and shows a lack of insight. The Applicant’s insistence that she did not put anyone in danger by her theft and use of drugs is a risk factor. Her deceptive manipulation of the hospital drug records and use of those drugs whilst working demonstrates a lack of concern for her obligations that went with her position of trust and authority. She fails to demonstrate insight on this issue.
  10. [58]
    The Respondent submits that the Tribunal must consider the supremacy of the paramount principle when considering if this is an exceptional case.
  11. [59]
    The Respondent refers to the fact of the transferability of the Blue Card so that it cannot be made subject to conditions. This means that if the Applicant were issued with a positive notice, she could potentially work unsupervised in child-related areas of employment.
  12. [60]
    The Respondent states that the role of the decision maker is not to impose further punishment upon the Applicant. It is to determine whether it is in the best interests of children for the Applicant to be given unsupervised access to work with or interact with children in activity regulated under the Act should she receive a Blue Card.
  13. [61]
    The Respondent contends that there is limited evidence to support the claim that the Applicant is rehabilitated such that she can both accept responsibility for her offending and can abstain from misuse of drugs going forward. The Respondent contends that this issue has not been adequately tested nor rehabilitation proved.
  14. [62]
    The Respondent submits that the Human Rights Act 2019 (Qld) (“HR Act”) does apply to these proceedings.

The Applicant’s Case

  1. [63]
    The Applicant describes her early life in a large family where she states that her father was physically and emotionally abusive towards her mother. The Applicant gave evidence that her parents separated when she was a child, aged five. Her mother then remarried and had two more children to her second husband and the Applicant had responsibility for these girls because her mother worked at night as a paediatric nurse. The Applicant states that she did, “everything for them.” The Applicant states that she has a close family network including her mother, sister, stepchildren and nephews. She states that she has no children of her own and states that she is distressed by her childlessness.
  2. [64]
    The Applicant states that her mother separated from her second husband who was abusive. She describes a harsh stepfather who used corporal punishment. The Applicant stated that she liked and did well at school but described an upsetting incidence of bullying. The Applicant says she was heavily involved in caring for her two younger siblings. She stated that the family moved frequently but that she did well at the nine schools she attended.
  3. [65]
    She had health issues being diagnosed with Type 1 Diabetes in 1996. She completed a Bachelor of Nursing in 1998 at G Hospital in Melbourne and her graduate year in 1999 later travelling to London for work. Following this she completed her Graduate Diploma of Psychology in 2006. She completed her Master of Public Health in 2012.
  4. [66]
    She met her first partner when she was nineteen. Her first relationship ended and then her former partner was killed in a traumatic accident overseas. They had separated but she was very upset by his death. She states that she was recommended counselling but did not attend but she states that the medical advice she received was to, “get on with it”.
  5. [67]
    In London she worked at a hospital, then specialled for an elderly patient. She left this role following a complaint about her. She believes the complaint to be ill-founded.
  6. [68]
    Having moved to London in 2000 and living with her friend Witness W, she agreed she had taken drugs – cocaine and ecstasy – in London in a social setting. She stated that she was not addicted to drugs.
  7. [69]
    She returned home to Melbourne in 2007 and went to work in remote indigenous communities. She stated that she met her husband in 2008 and married her husband in 2016.
  8. [70]
    The Applicant states that she sought jobs where she could work with people in remote locations. She reflected that this was not a good idea as she left her support group of friends and went to a place where she was, “just too sensitive to handle properly and where there was extreme trauma.” Problems in these locations included alcohol and substance abuse, domestic violence of women and children, disease, malnourishment, teenage pregnancy, neglect, suicide. She stated that she found it impossible to turn off each day, felt a depressing heaviness and was always on call. At the time she said she felt that “she was meant to be there”.
  9. [71]
    She worked for a further 4 months in Western Australia at A, at E in Western Australia for 2 months and on G in Western Australia for 4 months. Each community was indigenous.
  10. [72]
    She stated that she felt drained nursing in the remote communities. She said that the trauma in these locations changed her. She described demanding work schedules; that she was on call every second night. But she stated that she, “loved being that person”. She stated that she had to attempt resuscitation on patients, attend to removing dead bodies of suicide victims from trees and treat on-going injury and abuse of women and children.
  11. [73]
    She worked at B from 2008 until 2012, during which time her first drug-related offences occurred. After she was convicted in 2011, she sought help with counselling and a drug and alcohol psychiatrist. In 2012, she and her husband returned to Brisbane, and she had work as a nanny. In 2013 she went to X town which is another remote location and has a large indigenous community. She worked in the general practice for two years and was then approached to work at the R Hospital.
  12. [74]
    It was at this hospital that she began stealing and using drugs until she was caught. She agreed that regarding the 2017 offences that she started using drugs because she had not many friends or outside interests. Her mental state was poor, and she states being very stressed by the nature of the work. She said that, when taking drugs, she felt calmer and less panicked, and that it was a coping mechanism. She states that she was not addicted.
  13. [75]
    She describes being regularly separated from her husband whose work took him to the mainland. She experienced a cyclone during the time she was there, and experiencing a patient who sustained a brain injury after a tasering. She was frequently left alone and so she commenced study because she wanted to work in developing countries.
  1. [76]
    In May 2016 the Applicant states that she went to work at F town which was a highly stressful location due to the need to treat frequent and severe trauma. She completed her Graduate Diploma in Advanced Practice Nursing in this period. She then returned to the work at the L hospital twice for 4 months in total.
  2. [77]
    In November 2017 she was investigated for her drug-related charges and ceased her nursing registration.
  3. [78]
    She states that she was unsuited to work in remote and trouble communities despite wanting to help vulnerable people. She states that she has not used illegal drugs since these events in 2017. She states that she has no other convictions other than the two drug offences described and has some traffic offences which are not detailed. She states that she was not subject to disciplinary action related to the convictions by the health services.
  4. [79]
    She has the prospect of a new job working with a different cohort of vulnerable people. She states that she is not required to work alone with children in the absence of their parents. She states that she did not disclose her convictions when she applied for and was given the job but that later when the criminal history check was issued.
  5. [80]
    The Applicant provided a submission which is undated but received at Blue Card on the 14 March 2019. She states that she is ashamed and takes full responsibility for the crime she committed. She states that she takes full responsibility and that there is no excuse for it. She also states that, although she stole and consumed drugs in the workplace, “never at any point in time did she put any other person in danger including children”.
  6. [81]
    She states that she loves children and that she is good with them. She describes being from a large family and that she helped raised her younger siblings. She states that she has had a career as a nurse and in the last 12 years in indigenous communities she has been “lucky enough to have great interactions with kids everyday of her working life”. She states that she is really good at talking to them and reassuring them. Often at times when they are stressed and unwell or in pain. She describes her sadness at not being a mother herself. She describes the help of her psychologist, friends, and family. She stated that she had moved from a remote community back to V Town which was “pivotal in getting back to normal”.
  7. [82]
    Her medical conditions include Type 1 diabetes, self-administering insulin six times each day. She consulted Dr V, a psychiatrist for three years but states that he stated that she did not have a psychiatric condition and that the appointments were more of a “check in”. She does not recall discussing with Dr V why she did what she did. In L town she commenced seeing a mental health nurse twice a week for a couple of months then weekly. She states that she also had four skype sessions with a drug and alcohol counsellor. This counsellor told her she could stop the sessions as she was no longer using drugs. She denies smoking and over-consumption of alcohol.
  8. [83]
    The Counsellor in L town told her she had anxiety when she continued her sessions with the counsellor. She says she has low stress levels now, apart from the negative notice regarding her Blue Card.
  9. [84]
    After relocating to a large regional centre in 2018, she sees her psychologist as needs and at least every six weeks. He has assisted her to manage her anxiety by self-analysis, breathing and talking with her husband. She discontinued the anti-depressants which were prescribed for her in March 2018.
  10. [85]
    She states that she is no longer working as a nurse and so has no access to Schedule 8 drugs which she obtained and used because they were available to her at the hospitals at which she worked.
  11. [86]
    She states that she has identified her poor choices she made as being mainly attributable to the death of her boyfriend and the pressures of working remotely with little support. She states that she now is settled with new friends and a job she loves in her own home in a town with many opportunities for socialisation and is finding this therapeutic.
  12. [87]
    She states that she is again working with vulnerable people but that there is not the high level of trauma and stress that she was previously exposed to in remote indigenous communities.
  13. [88]
    The Applicant profoundly regrets her actions which were not pre-meditated, but opportunistic and for which she takes full responsibility. The Applicant pleaded guilty to both offences. She no longer works as a nurse so can’t access drugs and has not obtained or used illegal drugs since the offences for which she was charged. She remains hurt and embarrassed about the hurt she has caused her husband and the loss of her career.
  14. [89]
    She denies deliberately seeking access to a role where she could access the drugs register suggesting a new register as the other one was damaged, and she denies seeking to conceal the drug register by creating a new one.
  15. [90]
    She denies that any bloody tissues and torniquets were hers and she also denies that a missing ampule of alfentanil was taken by her but admits taking other ampoules.
  16. [91]
    She denies feeling confusion or nausea in the workplace and states that she would never put anyone at risk.
  17. [92]
    At L town she underwent three monthly reviews and that these were positive, and her performance work was good.
  18. [93]
    She states that if successful in obtaining a Blue Card, her employer would re-employ her as a Health officer in the organisation assisting vulnerable people. She describes the convictions as having deep impact on her life and on everyone and loss of her career as significant issues for her. She stated that she had let so many people down and has so much regret. She stated that many nurses have reached out. She stated that she could call on any of her support network. She stated that the move to the new town has been positive as it is a beautiful place.
  19. [94]
    Her support now comes from her psychologist, Mr N, who has treated her for 18 months. The strategies are to build a balanced life, to establish friendships and hobbies such as gardening. She exercises and has a pet.
  20. [95]
    She states that she is developing new relationships now and enjoys a good relationship with her husband. She states that she has two stepchildren and two grandchildren who visit. She states that the younger stepson resided with her and her husband for two years. She has a good relationship with her stepsisters and nephews as well as her friend’s daughter. She stated that she visits Melbourne regularly.
  21. [96]
    She describes her life as completely different now in most ways for the better. She states that she longs to be able to do contributive work which brings her joy and balance. She stated that she and her husband are communicating better now, and everyone does not know them, so they have some privacy.
  22. [97]
    She requires her Blue Card for her desired role working with vulnerable group in the regional centre where she now resides.

Applicants Further Written Submissions by her Lawyer

  1. [98]
    The Applicant states she does not present a risk to children because the offences did not affect children, nor were they witnessed by children or involving children; that the applicant is no longer a nurse and no longer has ready access to drugs and no longer experiences the previous trauma of living in remote and disadvantaged communities; that the periods of offending had significant amount of time between the first and second offence.
  2. [99]
    The Applicant maintains that she has expressed genuine remorse echoed by both her psychologist supports and relatives.
  3. [100]
    The Applicant submits that she had significant intervention for her mental health concerns being Dr V for three years, a mental health nurse and Mr N. She states that her consultations with Mr N have been for a period stated to be 2 years 7 months. The Applicant submits that the triggers for her offending have been identified and dealt with by her continued sessions with her psychologist to manage her anxiety with self-analysis and breathing. The Applicant submits that she has not used drugs since the last offence. Her evidence is that Mr N her psychologist, believes this to be the case.
  4. [101]
    Mr N describes her offending as opportunistic which were related to poor mental health and distressing living arrangements at the time. Mr N has the view that she had no substance dependency issues apart from her two periods of offending. He supports the view of there being sufficient protective factors such that she is not a risk to children.
  5. [102]
    Specifically, the Applicant denies manoeuvring herself to have access to drugs and that everyone had keys to the drugs room. She stated that when the false entries were discovered she went to police. She stated that there was no action in relation to the drug registers.

Cross examination of the Applicant

  1. [103]
    In cross examination she stated that she and her first partner had separated at the time of his death and that he was seeing someone else. She denied periods of separation from her husband.
  2. [104]
    She agreed that she made false statements in paragraph 149 of her life story and at paragraph 20 of her statement dated 30 November 2020 where she claimed falsely never to have taken any other illicit illegal drugs. She agreed that she had used cocaine and ecstasy when aged around 25 and living in London and that her statements in her life story were false.
  3. [105]
    Regarding the use of cigarettes and alcohol she agreed that her statements at paragraphs 146 and 147 of her life story are false. When asked when she had relied on alcohol, she stated that she had used it every night to a state of intoxication when her first partner died. She denied being hung over the next day. She stated that she engaged in this for a period of three months.
  4. [106]
    She was asked what morphine and fentanyl are used for and responded that they were Schedule 8 drugs for pain management. She agreed to Schedule 8 drugs are drugs of addiction. She agreed that all Schedule 8 drugs have strict legislative controls as to the way they are prescribed, stored, and administered. She was then asked to explain the legislative controls.
  5. [107]
    She stated that it was a requirement to sign the drugs out of the Register, administer it and document it. She stated that the drugs are stored in locked cabinet with a set of keys, and she stated that the keys could be held by any of the registered nurses and denied that the Nurse Unit Manager was required to hold the keys. She denied that two nurses were always required to count drugs and to view the drugs drawer. She denied that a nurse needed to give a reason for the keys. She stated that in a small and busy place, two nurses might go to the bedside but only one would administer the drug.
  6. [108]
    She stated that in L town two nurses were not always available to follow the rules. She agreed that two nurses were supposed to witness the drawing up and discarding of unused drugs and to sign the register to this effect. She agreed that the controls are in place because the drugs are addictive and to prevent misuse.
  7. [109]
    She agreed that temazepam and oxazepam are Schedule 4 drugs with controls on them and are used for sedation. She stated that she did not take any other drugs in this period such as Temazepam and Oxazepam that were not prescribed for her. The Applicant denied illegally obtaining large quantities of either drug. The Applicant agrees that she was interviewed by the Ethical Standards Unit regarding an incident on 19 January at 10.46 pm where the Applicant was questioned regarding missing Schedule 4 drugs.[14] She stated that she could not recall if she was prescribed temazepam or oxazepam.
  8. [110]
    In relation to the 2011 offending, she agreed that there were discrepancies of about 30 ampoules of morphine and 12 ampoules of pethidine. She agreed that she began stealing and using drugs in 2010 starting with the leftover drugs.
  9. [111]
    The Applicant agreed that she often left hospital with medications for other people.
  10. [112]
    The Applicant agrees that she committed fraud and that she would circumvent the processes for drug protocols by signing a false name for a patient and that she would also forge an illegible signature. She stated that she was not confident this would not be detected. She stated that she did not believe any work colleagues were aware. She stated that she did it when others were not around and felt that she would not get caught. She stated that she would conceal the drugs in her pocket.
  11. [113]
    She stated that her husband was not aware, and they had no conversation about stealing or illegally using the drugs. She stated that he was unaware until she was caught. She stated that she did not discuss her drug use and theft of drugs with any family or friends.
  12. [114]
    She confirmed she was stood down on 22 September 2011 and that she went to court in 2013. She agreed that she was stealing 3 ampoules per shift in 2017.
  13. [115]
    She agreed that she had suggested a new Drugs register to the Nurse Unit Manager conducting an audit, but that was because it was torn. She denied being a poor historian. She denied withholding information in the investigation. She agreed that her conduct was part of a long and on-going deception of her employer.
  14. [116]
    She denied that the conduct was not opportunistic. She denied an intention or plan in going to indigenous communities to steal and commit fraud. She said she loved ‘being the person everyone came to’. She states that drug use was not part of a pre-meditated plan but taken opportunistically when on shift. She stated that she would never put herself in that situation again. She states that she never put anyone in danger and her nursing duties were not put in question.
  15. [117]
    She agreed that taking opioid medications whilst working was a high risk, but that as her work was never questioned, she was not impaired whilst working. She denied that working while under the influence of drugs was dangerous saying that it did not affect her personally causing any of these symptoms of confusion or nausea. She stated that no patient was ever harmed.
  16. [118]
    She stated that she had informed her psychologist about using the ecstasy and cocaine but was unsure about telling him about the heavy drinking.

Cases Cited by the Applicant

  1. [119]
    The Applicant states that the evidence shows she is not a risk of harm to children if issued with a Blue Card.  The Applicant cites the decision in HAM[15] in which the Tribunal stated as follows: 

For the Tribunal to be satisfied of any likelihood of risk to children, any assessment must be more than speculation. There should be some identifiable and justifiable nexus between the facts and potential risk”

  1. [120]
    The Applicant states that a risk of harm is not established on the evidence because the Applicant has shown remorse, accepted treatment and is no longer working where she would be subject to temptations to use drugs due to a troubled work environment.
  2. [121]
    The Applicant cites the decision in HM[16] where the facts of the case are analogous to the facts of the instant case in the Applicant’s view. The Tribunal found in favour of the Applicant that no exceptional case existed on the basis that the Applicant there had received treatment, demonstrated genuine remorse and insight, and understood that the behaviour was wrong.
  3. [122]
    The Applicant contends that the Tribunal must weigh protective and risk factors to determine risk in terms of s 226 of the WWC Act. He cites the case of ML in this regard.[17] In ML the Tribunal was of the view that the risks did not outweigh the protections. It is stated as follows:

“there is no evidence that the Applicant directly or indirectly involved children during any contravention of the Law nor is there any evidence that such a risk will occur in the future

  1. [123]
    The facts in HLS[18] are similar to those in the instant case. HLS misused drugs in the course of her employment as a registered nurse. She developed a dependence on opioids to relieve stress, mental illness (depression) and back pain. Protective factors in that case were an absence of a history of drug use or other criminal convictions, and good and growing insight into mental illness. The Tribunal concluded that HLS was not primarily a drug user, but the drug use was secondary to her mental illness and the theft of s 8 drugs was opportunistic. In the present case the Applicant also contends that the drug-use was opportunistic and that the Applicant states that she has made efforts to address her mental state.
  2. [124]
    The Applicant cites the further case of KAT[19] where the facts indicate that children were present at a place where a public nuisance offence and assault of police officer occurred. Charges were also laid regarding drug paraphernalia found at the place where children were living. The Tribunal, in this case, acknowledged the stressful time for the Applicant and that she may have acted out of character and that she could still be a good role model and found in her favour that there was no exceptional case.
  3. [125]
    In Thompson,[20] TW was convicted of possessing dangerous drugs, but the protective factors were noted to be a network of supportive friends who knew of the offence, attendance at counselling, a healthy lifestyle, and no offending behaviour. Dishonesty was regarded as a risk factor. These protective factors are said by the Applicant to support her submissions.
  4. [126]
    The Applicant cites the decision in Luong[21] which contains similar protective factors as in Thompson’s case. The Applicant contends that she is no longer a nurse in an isolated community exposed to repetitive trauma and because she no longer works as a nurse, this as protective because it means she has no access to Schedule 8 drugs so the temptation to offend is removed.
  5. [127]
    The Applicant argues that although she used drugs herself, the circumstances are now completely different. She states that she was in an environment that caused her anxiety. In the hearing she dramatically recounted the experiences in many remote and indigenous communities as being very traumatic due to the recurrent problems of extreme abuse, neglect, and violence. She stated that she no longer works in such a remote and troubled environment.
  6. [128]
    Her submissions refer to the comparative offences and penalties given to other offenders in criminal proceedings in the cases cited as distinct from her own criminal history. Luong was convicted of multiple drug offences, including supply possession and supply of drugs. His case was found to not be exceptional by the Tribunal.
  7. [129]
    HAM’s case focusses on the need for an appreciable risk and nexus between the circumstances and likelihood of risk to children in the future. The Applicant denies that she is a risk to children in the future citing the protective factors.
  8. [130]
    The case of HLS is similar in that the offending has similar features such as falsifying drug records; but there, the Applicant did not consume the drugs whilst working.
  9. [131]
    The Applicant states that her drug-use did not affect her judgement at any time. The Applicant stated and under cross examination that the drug use whilst working as a nurse did not harm or risk harm to any patients including children.
  10. [132]
    She agrees that she held a position of trust. Friends and relatives were all surprised at the offending. In fact, all referees and the only individual work colleague giving evidence all claimed no knowledge of her drug use and all expressed surprise at the circumstances of the offending. Her prospective employer expressed amazement at her qualifications and the possibility of employing such a well-qualified person for this role and stated that she would employ her again.
  11. [133]
    The Applicant states that now she actively pursues treatment. Following the offences in 2011, she was referred for treatment by Dr V, a psychiatrist who treated her for or a period of three years. She stated that she felt she should have been seeing a psychologist at this time.  After the 2017 offences, she has commenced working with a psychologist, Mr N who gave evidence at the Tribunal hearing.

The Witnesses for the Applicant

Mr N

  1. [134]
    Mr N is a self-employed psychologist who provided a report dated 1 December 2020. He reported that he had read the Reasons for Negative Notice and states that he is aware of her offences and states that she was ‘upfront about it’. The Applicant is a self-referral. Her last visit was 2-3 weeks prior to the hearing. He recounted her history of medical care stating that she had elected to continue Dr V’s help via skype. He stated that she had given an undertaking to continue with psychological help. He believed she had lost her Nursing registration. He states that she has no current substance misuse issues. Mr N believed her offending related to her environment at the time and stated his opinion that they impacted her in that she struggled with her moods, the isolation and loneliness. These issues are no longer a problem for her in his view. At present she consults him about maintaining a positive mood, coping strategies for anxiety and depression. He states that her coping strategies include avoidance of threat-based thinking, negative or distorted loops in thinking, reactive strategies, and cognitive reframing. His opinion of protective strategies includes her remorse and her positive changes from her changed living and working circumstances; the strength of her relationship and developing friendships. He does not think she is a risk to children and young people.
  2. [135]
    In cross examination, Mr N said that he had had 30 sessions with the Applicant and was aware that she had seen a psychiatrist for 3 years after the 2011 offending. He could not offer an opinion as to why that treatment was ineffective apart from her anxiety being persistent. He is not aware of whether she is currently on any medication. He said he understood she was on anti-depressant medication for a brief time. He stated that her current diagnosis is anxiety (anxious reactions).
  3. [136]
    He stated that the opioids were used by the Applicant for anxiety not pain. He described the feeling of chronic elevation of cortisol affecting the nervous system, that the mind does not stop. He stated that opioids suppress the nervous system. He agreed that cocaine and ecstasy were illegal drugs. He stated that her intoxication with alcohol was related to a period of significant life trauma the death of her former boyfriend. He stated that relapse prevention strategies involved helping to identify triggers and high-risk situations and to establish positive social interactions, mindfulness and relaxation including talking with her husband.
  4. [137]
    He indicated that communication and relationship building assisted to the development of insight. He confirmed his opinion that the Applicant felt shame about her convictions and grief and loss. He stated that she was very aware of losing her nursing registration. In his view, she is building a network in the new town. She reports positive relationships with her parents, work colleagues and a close friend at Gold Coast.
  5. [138]
    Mr N reports that her using drugs has not been reported to him as a concern. He states that she engages in a frank and forthright manner, is committed, positive and willing to have difficult talks. He states that she is now removed from a high stress environment; has employment and a support network; can regulate and manage; has a primary relationship which is supportive; and is she is proactive.

Ms W

  1. [139]
    She is a lifelong friend who lived with the Applicant in Melbourne and London. She has a daughter and is happy for the Applicant to care for this daughter. She states that the Applicant is close with the children in her extended family. She states that the Applicant comes from a large close family. She has seen the Reasons for the Negative Notice, but this is no reason for her to alter her opinion of the Applicant. She stated that the decision not to have children was a decision taken by the Applicant’s husband. She believes the Applicant had difficulties in remote communities where she was withdrawn and depressed. She believes the Applicant to have a full happy life now. She expressed guilt and remorse at the offending to her friend.
  2. [140]
    In cross examination, she stated that the decision not to have children was the Applicant’s partner’s decision, who already had children and the Applicant chose not to “push the matter”. She agreed that the Applicant connected easily with new people and formed relationships. She agreed that they were close friends contacting each other regularly. She stated that she did not know about the 2011 or 2017 offences. She agreed that they had used drugs cocaine and ecstasy in London randomly at nightclubs and outside nightclubs when they lived there for three years.

Ms Z

  1. [141]
    She has held a role in Child Protection for nine years and is now a Regional Manager of an organisation assisting vulnerable people and children. She stated that the role previously performed by the Applicant involved taking people to medical appointment, explaining medical terms, and educating them on health needs. She stated that the Applicant’s work performance was exceptional, that she was good with stakeholders, allied health workers and children. The witness stated that The Applicant’s work was complaint-free. She said that she was caring, empathic and had an engaging personality. She stated that she was very good with trauma victims. She was very professional. The witness stated that she went ‘Wow” when she saw the Applicant’s qualifications. She stated that she was sad when she read the Reasons for the Negative Notice, but this did not change her view of the Applicant.

Cross examination

  1. [142]
    The Witness stated that the Applicant did not disclose her criminal history when she was appointed to the position, but did so after having trouble obtaining the Blue Card.
  2. [143]
    She stated that the job the Applicant did with her organisation involved people exposed to extreme trauma and it was comparable to what a remote health worker might be exposed to in Australia. The Applicant’s job is an intermediary one. Treatment issues would be between the health provider and patient. She agreed that the role involved explaining the route of medication e.g., use of Webster pack. She stated that the Applicant would have direct contact with the drugs prescribed to clients because she would assist them to navigate health services. She agreed that she was very impressed with the qualifications of the Applicant and that it was difficult to recruit for this role.

Ms Y

  1. [144]
    Ms Y has known the Adult since childhood. She is a psychologist but has never treated the Applicant as a patient. She visited her in London, and they have kept in contact. She has observed her with children and has no concerns. She does not have detailed knowledge of the offending.

Ms J

  1. [145]
    She stated that she understood that her sister had a criminal history and that she knows of all her sister’s life events.
  2. [146]
    In cross examination she stated that she did not know her sister was using drugs in 2011 or 2017. She stated that it was a life-altering decision affecting her ability to work as a nurse. She stated that she did not understand what prompted her to use drugs. She believes the decision to be an isolated lapse of judgment. She does agree that it was not an isolated event but was a moment of weakness and a poor choice and ‘not the sum of who she is.’ She believes her offending to be out of character.

Witness E

  1. [147]
    She stated that she first met the Applicant in 2013. She holds a certificate 3 as an assistant nurse. She stated that she and the Applicant were friends outside work. She stated that she found out about the 2016 offending when she read it in the newspapers as the Applicant was a Detective’s wife. She states she was not aware that the Applicant was stealing or using drugs at work. She stated that she did not think the Applicant would do this. She is aware deceit and lies were involved but she had a strength of personality and that someone could not ‘fake their personality for 7 years’.

Applicant’s Final Submissions

  1. [148]
    The Applicant states that she has not tried to avoid responsibility and that her convictions have had a massive impact upon her life as it has destroyed her career. She has several post-graduate qualifications but states that she can no longer be a nurse. She is described consistently by her witnesses as caring and helpful person. The Applicant states that the offences were confined to remote and distressing work environments which were clearly the trigger for the offending.
  2. [149]
    There is no evidence of taking drugs between the offences or that she was a drug addict and that the trauma she experienced was severe and distressing and personal. She was subject to vicarious trauma at numerous locations. In her remote work environments, though she could leave, she did not have much opportunity for debriefs. She hid the drug- taking from family and friends and now they are aware it makes no difference to their assessment of her character. She is trusted with the children of family and friends.
  3. [150]
    There is no evidence that she is a risk to children. She states that the offences were committed whilst she was working but did not directly impact children. Her former employer would re-employ her despite her criminal history. She has no evidence against her of harm to any patient. She has profound guilt, regret and shame that never ends.
  4. [151]
    The protective factors are that she attends counselling, has supportive friends, is trusted to care for children, her husband is supportive, she has other activities, is not a drug addict and does not minimise her offending which was opportunistic. She now has insight into her mental health issues. The applicant states that her increased awareness and insight is demonstrated by her commitment to the goal of working with vulnerable people.

Risk and Protective Factors

Denial of harm

  1. [152]
    The facts indicate concerning behaviour with the use of various drugs which were stolen and consumed by the Applicant during her working shift. The additional material and her life story indicate that she was affected by the morphine she took because she specifically describes a feeling from the drugs. [22]The reason this is such a significant risk factor is that a nurse may be called upon to make clinical decisions in an emergency. It is not acceptable that the person required to provide care is affected by a drug which is known to impair judgment. The Applicant continues to maintain that because there is no proof that anyone was harmed, that there is no future risk of harm to children.
  2. [153]
    The Applicant contends that the Tribunal should not find the facts lead to the conclusion of an exceptional case based in part upon the decision in HLS. However, HLS is distinguishable from this case because HLS did not consume the drugs at work whilst actively treating patients. The Mental Health Assessment completed regarding the Applicant describes her drug taking and its effects upon the Applicant.[23]
  3. [154]
    The Applicant’s conduct was independently assessed to be high risk. In the External Review Report is stated as follows:

The TCHS Risk Matrix was utilised to assess potential risks acceptability and tolerance relating to the nurse practicing under the influence of opioids medications and the potential impact on WIHS. The risk rating was determined to be High. Practicing under the influences of opioid medications may cause sedation, drowsiness, mood changes and confusion, especially if inappropriately used and not prescribed by a medical practitioner for a clinical indication.[24]

Applicants work in disadvantaged communities

  1. [155]
    The Applicant urges the Tribunal to attach significant weight to the fact of the extreme hardship suffered by the Applicant, unsupported, in a remote and extremely traumatised community. The descriptions given in the hearing describes horrific events to which the Applicant was exposed. These included regularly attending to suicide victims, assisting abused children including giving them food and frequent injury and traumas well as abuse of very young people. The Tribunal accepts that these were traumatic events in the Applicant’s life.
  2. [156]
    There is a concern however that the Applicant, a highly educated person, seeks out employment in vulnerable communities where the specific roles necessarily involve a power imbalance between herself and patients. The effect of this choice of workplace is clearly a risk factor on many levels for the Applicant.
  3. [157]
    The Applicant now seeks a Blue Card to work with another traumatised vulnerable cohort, similar to that which she experienced in remote indigenous communities in Australia. She refers to loving this work and apparently is drawn to it. In the hearing she described the work in indigenous communities as exciting, wild, and extremely rough. She went on to work at numerous remote locations in Australia, including volunteering to go to F town in 2016 where there had been riots. This coincided with a period when her husband was not accompanying her and was hospitalised for cancer treatment. The Applicant previously stated that her husband’s absence for work purposes was a stressful factor for her, but she chose to go to a very troubled centre when he was unavailable to be with her.
  4. [158]
    It is often a feature in these poor and troubled communities that the distinction between work and non-work roles is blurred. Roles are blurred and oversight is haphazard which the numerous audits, investigations and reports of Health officials demonstrate. The Applicant refers to this issue specifically, describing as being constantly on call and facing difficult and emotional circumstances of domestic and family violence, alcohol abuse and injury and abuse of her patients.  
  5. [159]
    Scrutiny of protocols in these remote environments of dynamic and emergency care are often limited. For example, the drug register at F town could not actually be located when an audit was undertaken.[25] The maintenance of the drug register is fundamental to the lawful management of Schedule 8 Drugs as the Applicant herself states in her evidence. This same audit reported that there were 256 ampoules of drugs unaccounted at 3 separate locations. Drug handling protocols were clearly able to be subverted because of the exigencies of this remote environment at times under was under great strain and pressure.
  6. [160]
    The Tribunal accepts that the Applicant’s circumstances are very different now; but the Applicant remains attracted to highly traumatised work environments where she is a role model and central figure in the lives of very traumatised people.
  7. [161]
    The Applicant prefers this group of highly vulnerable individuals to satisfy her desire to be contributive. It appears, from her evidence that she is now seeking to replace the former traumatic experiences with a similar set of circumstances which will involve access to health systems and drugs.
  8. [162]
    The Applicant has not addressed these career choices in her sessions with her psychologist. His report confirms the that he considers her conduct to be altruistic, regarding her offending as opportunistic; confident it will not be repeated.
  9. [163]
    The Tribunal notes that her prospective employer regards her as overqualified for the role, which underscores the issue of a power imbalance between the Applicant and those she cares for as a nurse or health worker. It is this set of circumstances that provided the trigger for the previous offending. This is a risk factor as the Applicant shows no insight into these choices and how they may present distinct challenges for her.

Australian Health Practitioner Registration Association (AHPRA)

  1. [164]
    The Applicant repeatedly stated that her nursing career was finished relying upon this to support her contention that she would no longer have access to scheduled drugs as she was no longer able to be a nurse. The Applicant has not provided complete details of her work history including AHPRA history.
  2. [165]
    The material suggests that AHPRA imposed conditions on the Applicant after the 2011 offences.
  3. [166]
    The Applicant worked as the practice nurse at the General Practice in L town from 2013 to 2015. She undertook this work at a time when her nursing registration was subject to conditions which are not disclosed to this Tribunal. Whilst working at the General Practice her nursing registration was subject to conditions.[26]
  4. [167]
    These restrictions attached to her registration as a nurse are referred to in the report of the Senior Environmental Health officer dated 28 February 2018. It is reported that the Applicant told a staff member of L hospital in an informal discussion, prior to the recruitment process at L that the Applicant:

had issues at B which resulted in restrictions being placed on her registration and that she was waiting for the restrictions to be removed before applying to L. [27]

  1. [168]
    The Applicant does not provide details of these restrictions apart from a reference in her evidence in chief. The Tribunal has not been told what the restrictions were or, for what period they were in place. The Tribunal is satisfied that this information is relevant given the compelling arguments concerning her entitlement to work as a nurse and any risk if she were to be re-employed as a nurse in the future. These details have been omitted and the Tribunal concludes that the Applicant is misleading on this aspect of her case.
  2. [169]
    The Applicant does not provide a report from Dr V, whom she consulted for three years after the 2011 offending. The Applicant has not produced any evidence to support her claim that she disengaged from Dr V after three years, because he told her she did not have a psychiatric condition. The Tribunal does not have the benefit of his opinion and no explanation of this omission is given. He treated her for a significant time and she subsequently re-offended. Mr N is unable to provide any clarification as to why her treatment by Dr V, a psychiatrist, for such a long period was ineffective. This omission goes to the weight which can be given to her argument that she is able to resist drug abuse as her treatment by Dr V was unsuccessful. The Tribunal finds the omission of this information as significant from the assessment of risk perspective. 
  3. [170]
    The Applicant did not disclose either to the health service at L prior to the current proposed employment or voluntarily to her former employer, the nature and extent of her criminal offending and her conditions of registration imposed by APHRA whilst a registered nurse.
  4. [171]
    The material produced in response to the Notices to Produce demonstrate that on two occasions the Applicant avoided disciplinary action related to her criminal convictions by relevant registration bodies. On 19 March 2013, a letter advising the Applicant that, as she had resigned, no disciplinary action would be commenced against her regarding her conviction on 27 February 2013.[28]
  5. [172]
    It appears from the material produced in response to the Notices to Produce that the Applicant applied for a non-practicing certificate on 7 December 2017. As a result of this, a decision was taken by the Queensland Notifications Committee of the Nursing and Midwifery Board of Australia to take no further action regarding section 151 of the Health Practitioner Regulation National Law as she was no longer able to engage in any nurse practice activities. [29]  
  6. [173]
    In her evidence, the Applicant stated that she had not been disciplined regarding her convictions; but the reason she was not disciplined appears in this additional information from the Registration bodies quoted above. The Applicant had resigned prior to disciplinary action being taken. But her claim in this respect is considered by the Tribunal to be somewhat misleading.
  7. [174]
    It is understood that APHRA can impose conditions on a person’s registration and that these can be lifted. It is also the case that registration protocols at APHRA enable those records of prior conditions may not appear in the record of registration of a person in some circumstances. The Report of the Integrated Health service states:

Although conditions were placed on the Applicant’s APHRA registration, details of these conditions were unable to be officially revealed during the current accreditation processes by TCHHS. Discussions with APHRA have revealed that once a condition has been on a practitioner’s registration for the required time, the condition is removed, and no mention of the condition ever having been present is shown when conducting registration searches.[30]

  1. [175]
    The Applicant stated on many occasions that she can never be a nurse again and that this has been a severe and painful penalty for her. This theme is echoed by many witnesses. However, the Tribunal is unable to rely upon her submissions in this regard as relevant information concerning her APHRA registration history is omitted from her work history. The relevant information from the Registration body has not been provided to the Tribunal.
  2. [176]
    The current status of her APHRA registration has been withheld. Whether she can seek re-registration with APHRA is unknown. Any registration process would potentially also be affected by the change of surname as her previous convictions and the numerous investigations which followed relate to her previous surname. The Tribunal is not satisfied that her nursing career is finished, as she has not supplied full details regarding these matters to this Tribunal.
  3. [177]
    Based upon this material, potentially there may be no record of proposed disciplinary actions or the restrictions which had been lifted.[31] This represents a serious risk factor to be weighed by the Tribunal in relation to her submissions that she is unable to work as a nurse again and so bears directly upon the review of the negative notice and her suitability to hold a Blue Card.

Remorse and Insight

  1. [178]
    The Applicant states that, in working regularly with her psychologist she has identified the triggers for her offending and that her opportunities to access drugs has been removed so that there is no risk of re-offence. This work with the psychologist is a protective factor.
  2. [179]
    She stated that her improved relationship with better communication with her husband is a protective factor.
  3. [180]
    The Applicant herself is highly qualified. She has post-graduate qualifications in Psychology and Public Health and Advanced nursing which the Tribunal regards as being protective. It is generally agreed that a higher level of education may often accompany a growing self-awareness regarding actions decisions may also promote self-regulation. The Applicant is a mature and well-qualified person in a stable relationship. These are also protective factors.
  4. [181]
    However, the Applicant shows extreme self-focus. She does not identify even the possibility of harm to others by her actions. Her own reflections are on her losses. There is no observation where she expresses regret about how tragic consequences may have been should a patient have sustained injury whilst in her care when she was using powerful drugs of addiction. 
  5. [182]
    These facts raise concerns about her understanding and insight into her own lack of capacity when using drugs whilst caring for patients. The Applicant seeks work with trauma victims including children. She continues to assert that she judges herself unimpaired by the drug taking whilst working with patients. Whilst she maintains that the drug taking did not affect her personally, she remains a high-level risk to others remains. This attitude shows an absence of insight as well as genuine remorse.

Consideration of the evidence

  1. [183]
    The decision under review was whether the Applicant’s is an exceptional case which will displace the presumption in section 221 of the WWC Act. Determination of what is an exceptional case is a question of fact and degree, to be decided in each case on its own facts by having regard to the following matters:

... the context of the legislation which contains them, the intent and purpose of that legislation, and the interest of the persons whom it is here designed to protect children. [32]

  1. [184]
    The Tribunal must consider whether the circumstances identify a risk sufficient to warrant being satisfied that it is an exceptional case in which it would not be in the best interests of children for a positive notice to issue. The test is not simply whether the Applicant poses a threat to children or not.

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction.[33]

  1. [185]
    The case of HAM describes the risk to children in the following terms:

For the Tribunal to be satisfied of any likelihood of risk to children any assessment must be more than mere speculation ….do the facts support a likelihood of risk and how does it impact upon a consideration of how children might be affected if a positive notice and blue card were issued.[34]

  1. [186]
    The Applicant does not demonstrate an understanding of her obligations when caring for children. It is often said that children have a right to be cared for in a protective way where their needs come first. They also have an entitlement to receive consistent messages from their role models.
  2. [187]
    The Applicant contends that the decision in the case of ML, previously cited requires the Tribunal to weigh the risk and protective factors and that if protective factors outweigh risk factors, then the Tribunal cannot find an exceptional case. The Tribunal rejects this submission by the Applicant.
  3. [188]
    The Tribunal accepts the view that it is not required to balance risk and protective factors in determining if an exceptional case exists and should apply additional weight to any risk factors that are established. Eales is a decision of the Appeal Tribunal that found that that there is no precondition that negative, or risk factors must outweigh protective factors for an exceptional case to be found.[35]
  4. [189]
    A significant risk factor is her mistaken and consistently held belief in her own capacity when using drugs during the course of work. It is this issue together with other factors which makes this case exceptional.  
  5. [190]
    A further factor is the nature of her deception to steal and use Schedule 8 drugs during work. The Applicant engaged in a calculated, deliberate, and escalating practice to mislead and confuse her colleagues, appearing to be trustworthy and reliable when the opposite was the case.
  6. [191]
    The similarity between the offences in 2011 and 2017 are significant. Both circumstances highlight the extent of the Applicant’s actions to conceal her offending. The Misappropriation Report consistently identifies the breaches of the protocols for Schedule 8 drugs’ management.
  7. [192]
    The Applicant’s conduct was so devious that no colleagues identified what were illegal and plainly flagrant breaches of protocol. The Applicant used any weakness in the system to exploit an advantage to obtain drugs, then used them herself while she cared for patients. She displayed no regard for colleagues, patients, or superiors. At page 9 of the report, it states:

It is recognised that drug dependant persons as with most addictions are very capable of covering their tracks and explaining away issues that might otherwise be considered suspicious. It is further recognised as harder to identify irregularities when the person misappropriating the drugs is seen as a person of trust or one of the persons responsible for maintaining and checking records. … Despite the controls the Applicant was able to gain access to and use controlled drugs for a period of approximately 18 months without being detected.[36] 

  1. [193]
    The report also states that:

persons misappropriating medication, particularly over an extended period, can appear trustworthy and often overly helpful to maintain an access to a supply of medication.[37]

  1. [194]
    Her deception and submissions on this point also demonstrate a continuing lack of insight. The Applicant engaged in prolonged deception and misconduct and has not developed any insight into the harmful nature of her conduct. She continues to deny her actions impacted her patients or harmed others as there was no evidence of this. This is particularly concerning as this is a denial of responsibility.
  2. [195]
    But her opinion of her conduct is stated in the police interview 27 November 2017, where she stated that she never deprived patients of medication ‘that they actually required’. This would seem to suggest she was entitled to decide who required prescribed medication and whether she would provide it to them or take it herself. It must be remembered that these drugs are prescribed for sever pain. There are numerous examples of where she forged entries to steal patient medication and use it herself.
  3. [196]
    The Applicant strangely maintains that the drugs did not affect her in the usual ways, producing nausea and confusion. The Applicant continues to maintain that she was never impaired when working, despite contrary medical facts about morphine usage. She stated on the 16 November 2017 that she used the drugs she does not get high from it, and it does not change her personality.[38]
  4. [197]
    The Applicant agreed that the protocols she subverted are in place to prevent harm to patients. Schedule 8 drugs are drugs of addiction. That they are addictive is the very reason for the regulations surrounding their use.  If the drugs did not have the effect of impairing judgment and capacity, there would be no regulations. It is unlikely based upon probability, that the Applicant can judge her own performance whilst on drugs. It is a common fallacy shared by drug users that they can assess this. Her opinion concerning her own capacity when under the effect of drugs is given no weight by the Tribunal.
  5. [198]
    The Applicant does record her feelings about her using morphine with an independent party where she says at the Mental Health General Assessment on the 5 December 2017:

Morphine – started using it at work about 6-7 years ago. It started by using leftovers of dosages. Initially it was sporadic but then built up to daily when she could get it. Says she only used it at work, not at home. Has never bought it. After she was caught, she stopped using it. Describes it as making her feel ‘soft and warm’ and every time she describes how it makes her feel she puts her hand on her chest. Says she would still be doing it if she had not been caught.” [39]

  1. [199]
    The Applicant’s conduct and rationalisation of her actions is inconsistent with the requirements, skills and insight required for the care of the vulnerable which. The Applicant’s continued assertion of the fact of her having capacity for her nursing duties is a relevant factor that is not a circumstance in the ordinary course of events. These actions go beyond what would be regarded as ordinary responses or conduct or beliefs given the circumstances of the case.
  2. [200]
    It raises the concerns of the Tribunal as to the general conduct of the Applicant regarding drug use, undermining the claims that she could resist temptation and comply with legal requirements in the future. The Tribunal finds these matters evidence disingenuous behaviour which is at odds with the description of the Applicant’s stability and insight attested to by her witnesses. It places further people in her care at greater risk because of her views.
  3. [201]
    The Applicant has had no additional entries on her criminal history for four years, but the Tribunal has decided in other cases that the passage of time alone is not determinative of whether an ‘exceptional case’ exists. Although allegations or convictions may relate to offences committed several years ago, the passage of time does not detract from their seriousness.[40]
  4. [202]
    The Applicant saw a psychologist in 2011 after her offending and conviction. A letter was provided by this psychologist which details the same causes for her offending as in 2017. She expressed the same regret and the stated desire to regain a nursing position.[41]
  5. [203]
    It is argued by the Applicant and supported by evidence from her psychologist that the offending was opportunistic. The circumstances of the offending show a devious set of actions and manoeuvres to elude the detection of colleagues and superiors and to exploit systemic weaknesses. It is difficult to rationalise that her conduct could be described as opportunistic. Opportunistic is described in the Oxford Dictionary as being ‘exploiting immediate opportunities, especially regardless of planning or principle’. The evidence clearly shows planning and devious conduct on an extraordinary scale to evade legislated protocols to obtain and conceal the use of drugs at work. Her conduct was not opportunistic, but manipulative and duplicitous, exploiting poor procedures and compliance designed to protect patients.
  6. [204]
    It is argued by the Respondent that the Applicant has not fully informed her psychologist of her full history with drug use. He stated that she had been open and honest verbally with him. In his report[42] he states that the Applicant advised him that she had no substance abuse issues apart from the 2011 and the 2017 offences. This is incorrect information based upon other information supplied to the Tribunal in a copy of her mental health assessment.[43] Therefore, his opinion is diminished in weight because she has not made full disclosure to him during their consultations. 
  7. [205]
    Mr N states that she presents as a “caring intelligent and motivated woman with a strong commitment to supporting people in particular those who are marginalised and disadvantaged.”[44] However, the desire of the Applicant to work with disadvantaged groups is the situation which contributed to her past offending. This aspect is not examined with the Applicant and no opinion is offered by Mr N on this subject. He states his belief that her remorse is genuine from his observations of her and her word. He bases his opinion that she has not misused substances based upon his professional opinion on her presentations to him. He states that the move has provided her with a positive connection to the community, employment, and social networks and that these are strong protective factors such as minimise the risk of further offending. He further states his belief that she is not a risk to children or young people.
  8. [206]
    Mr N’s report does not specifically address the extreme and extenuating circumstances of her offending but refers simply to the named offences which tell only part of the story. This generality of his description of her offending does not provide adequate information for the practitioner’s conclusions on risk. He does not offer an opinion as to her view that no patients were at risk whilst she was working under the influence of drugs. He accepts her contention that she will not misuse drugs again.
  9. [207]
    The witnesses generally agree that the Applicant general disposition is as a caring person. Her offending is described as a lapse of judgement and the sympathy is with the Applicant and not those in her care, including children, very traumatised children. The witnesses shared the view that her offending did not impact their opinion of her, without really knowing the details or her continued insistence that she could work as a nurse whilst impaired by drug-use. This calls into question their depth of understanding and therefore the weight that can be given to their evidence is minimal.
  10. [208]
    This normalisation of her offending by the witnesses is inconsistent with the requirements for the Tribunal to prioritise the well-being of children when applying the of the paramount principle to the facts of the case. The WWC Act requires the Tribunal to ensure that the protection from harm and the welfare and best interests of children is the paramount consideration when determining if an exceptional case exists.[45]
  11. [209]
    The skills and flair the Applicant may have for the role do not outweigh the right of children to be cared for in a safe and protected way. The Tribunal is entitled to ignore both hardship to the individual and any skills the Applicant is asserted to have in the determination of whether an exceptional case exists.[46]
  1. [210]
    Superficially the Applicant’s circumstances are so changed that an easy conclusion is that the risk is removed. The Applicant raises her change of circumstance as a complete defence to the Respondent’s concern regarding future risks. As the Respondent points out, the Tribunal should be cautious in arriving at this conclusion.  The fact of her removal from the trauma of remote work does not address the history of heavy substance misuse and her views on her own capacity. The facts remain that she re-offended using a consistent pattern of deceptive behaviour which in the Tribunals, view elevates the risk.
  2. [211]
    The Tribunal notes the decision in Re TAA[47] which describes the value of insight as follows:

The issue of insight into the harm caused by these incidents is a critical matter for the Tribunal. The Tribunal is of the view that good insight into the harm that has been caused is a protective factor. A person aware of the consequences of his actions or other harm is less likely to reoffend than a person who has no insight into the effect of his actions on others. This is particularly important with children because they are entirely dependent on the adults around them having insight into their actions and the likely effect on children.

  1. [212]
    The Applicant fails to acknowledge in any depth the breach of trust and responsibility she engaged in and so in the Tribunal’s view has not demonstrated either remorse or insight. She created false patient records and misleading hospital records. This level of deception is extreme and basically goes unacknowledged by the Applicant.
  2. [213]
    There is considerable re-iteration of the Applicant’s opinion of her right to work whilst under the influence of drugs. At page 8 paragraph 8 of the 28 February 2018 Report by the Senior Environmental Health officer which states as follows:

On one occasion the Applicant miscalculated the dosage places on a label of medication supplied for use by a child. The error was identified by the child’s mother who was a nurse also working at L. A review of the of the ward drug register showed the Applicant had dispensed a 10 mg morphine just prior to the error occurring. A review of the details entered into the drug register found that the patient listed for this medication did not exist. In her discussion, the Applicant maintained that taking the drugs did not have any effect on her ability to work. It is possible that this incident was a one-off mistake however the fact that the ampoule was misappropriated just prior to the incident would suggest the Applicant was practicing whilst impaired.

  1. [214]
    In cross examination, she described this event as a mistake of mislabelling and denied any mistake on her part, denying she was working whilst impaired. However, the fact remains that the register showed that the Applicant had dispensed 10 mg of morphine for a non-existent patient just prior to this event. The Tribunal is concerned about the pattern of conduct of the Applicant where she regularly denied accountability and sought to implicate others; for example, with similar signatures to theirs and in providing implausible explanations for her irregular conduct.  
  2. [215]
    The effect of issuing the Applicant’s Blue Card is that the Applicant can work in any child-related employment or conduct any child-related business regulated by the Act, not just for the purpose for which the Applicant states they seek the card. There is no power to issue a conditional card and once issued it is fully transferable across all areas of regulated employment and business.
  3. [216]
    In the Tribunal’s view, the Applicant would present a risk for any children in her care in view of the recency of events of her convictions and the fact that she maintains that she did not cause harm whilst working under the influence of drugs and therefore with impaired judgment. 
  4. [217]
    The Tribunal accepts the submission of the Respondent that the paramount principle together with the object, purpose and nature of the legislation indicate that the Tribunal should take a precautionary approach when considering risk. The Tribunal agrees that this is the case even when the offending appears not directly related to children.
  5. [218]
    The Tribunal is cautious of concluding that because there has been no further offending that this equates to rehabilitation and the Applicant’s stated views and future intentions remain of considerable concern to the Tribunal and so and so are given significant weight as risk factors by the Tribunal.

The Tribunal findings and decision

  1. [219]
    The Tribunal finds the Applicant to be unreliable as to the facts and to have misconstrued the requirements of a Blue Card holder. The file note writer states the Applicant, “is a poor historian”.[48] The Tribunal concurs with this assessment. The Applicant provides selective information and gives no significance to the degree of calculation and deceit in her actions which goes to her credit as a reliable witness.
  2. [220]
    The Tribunal finds the Applicant to consistently deflect blame as a routine part of the way she conducts herself and as part of her scheme to acquire drugs. The Tribunal does not accept that her actions were opportunistic and done on the spur of the moment.
  3. [221]
     The Tribunal finds her assessment of her own capacity and whether she was impaired to be completely unreliable and so her account of any harm to a child patient or otherwise is in question. Simply because there is no evidence of this occurring does not lessen the duplicity of her actions which show a concerning disregard of patient safety. Of further concern is the way she took advantage of systemic failures when placed in a position of high-level control, responsibility, and trust with extremely vulnerable people.
  4. [222]
    The Tribunal finds that the Applicant is not a young person who made a mistake due to youth and inexperience.  The Tribunal finds that the Applicant deliberately chose remote and challenged work environments and exploited the weaknesses of these locations. Her offending had a degree of planning, timing, and calculation over an extended period, exploiting weaknesses in the system for receiving, handling, and recording of Schedule 8 drugs. In her evidence she confirmed these drugs as drugs of addiction.
  5. [223]
    This makes this case unusual in the Tribunal’s view as being out of the ordinary. The Tribunal rejects the submissions that the Applicant’s actions were opportunistic because of the devious way the drugs were obtained – deliberately abusing a position of trust with employers, colleagues and patients and an inadequate set of protocols.
  6. [224]
    There are claims of the Applicant having made relevant lifestyle changes and having enhanced family support, but the Tribunal is not satisfied that there is evidence to support this claim. The witnesses support her in her denial of blame.
  7. [225]
    The Tribunal has been urged to find that the Applicant has changed her circumstances and that this together with her choice to avoid remote work is a protective factor. She gave evidence of being in a stable relationship and not working as a nurse where she is not exposed to temptations. But her stated desire is to again work with vulnerable and recently traumatised parents and their children. At times this work is in a health context.  These people would require access, with her assistance, to medical help and to obtain and use their prescriptions. In the Tribunal’s view this is the same situation she previously held where she has direct access and involvement with medications and their administration. This proved a greater temptation than she could then handle.
  8. [226]
    The Tribunal finds a consistent pattern of minimisation by her of her offending. She stated in the Mental Health Assessment that she did not buy morphine and only used it at work. Accordingly, the Tribunal finds that that the drug use and dependence remain a significant challenge for the Applicant because of her settled views about drug use for which she shows little remorse.
  9. [227]
    It is not for the Tribunal to establish the Applicant’s guilt or innocence of criminal charges. In Grindrod,[49] the court arrived at a position that it was not the Respondent’s function or the Tribunal's function to adjudicate upon whether the applicant is guilty of the charges. The Tribunal’s function involves an analysis and evaluation of risk. The arrival at the correct and preferable decision should not be concerned with the proof of offences which the applicant may have committed previously, but with the prevention of potential future harm being at the forefront of the ultimate decision.
  10. [228]
    Here the Applicant is convicted of offences the details of which obscure the real nature of concerns about her future risk to children. The Applicant is not convicted of drug offences per se, but the case has everything to do with the misuse of the most dangerous and addictive of drugs. This aspect elevates the risks to extremely concerning because the drugs were used whilst the Applicant was working as a nurse caring for patients. It is this aspect which makes the case exceptional. This finding does not involve a re-hearing of the case but is an evaluation of actual risk. 
  11. [229]
    The Tribunal accepts the Respondent’s submissions that the capacity of the Applicant to rehabilitate and remain abstinent is untested. The Tribunal finds that, although the Applicant engages in help-seeking behaviours, she is not fully disclosing complete and relevant information to her practitioner. The Tribunal finds that she is not sincere in her help-seeking behaviours because of a lack of frankness. The Tribunal finds that the remorse she expresses is mainly directed to the impact of the criminal offending and its consequences upon herself.
  12. [230]
    The Tribunal has found in a recent decision that heavy drug use is relevant to child related employment;

The real concern here was that child discovering that that he used illicit drugs, seriously damaging any attempts by him to be a good role model or corrective influence when it comes to drugs or anti-social or criminal behaviour.[50]

  1. [231]
    This case the Applicant’s drug use was daily use of the most powerful and regulated drugs intended to be used for relief of extreme pain. The Tribunal concludes that the Applicant was a heavy user of powerful drugs. The Tribunal also finds that she exploited her control of these drugs because of her position as a nurse and her control occurred repeatedly in remote settings, in highly charged environments with persistently traumatised patients including children.
  2. [232]
    The Tribunal is asked to consider that time has passed, and that the Applicant is reformed.  The Tribunal is satisfied on the facts that the attitudes of the Applicant to her offending and manipulation of a public health system are unchanged such that relevant change has not occurred. The Tribunal finds that the Applicant fails to display appropriate insight into this aspect as she maintains her position regarding drug use in the past and there is no submission that she would not practice under the influence of drugs in the future. She denies drug use currently, but this is of little assistance if she continues to believe no patient was at risk because of her drug taking in the past. This leads the Tribunal to conclude that the circumstances of the case are unusual and exceptional.
  3. [233]
    The Tribunal refers to the Human Rights Act 2019 (Qld) (HR Act) and concurs with the Respondent that the Tribunal in considering this Act must weigh the interest and well-being of children as pre-eminent. The Tribunal has given proper consideration in terms of section 58(2) of the HR Act to the facts of the case. Proper consideration is demonstrated by the analysis contained in these reasons, the opportunity for a fair hearing at which the Applicant had legal representation, and in the application of relevant legislation and case law to the review.
  4. [234]
    In the Tribunal’s view this is an exceptional case as it has many factors taking it out of the ordinary course of events and circumstances. The offences for which the Applicant was convicted do not explain the complex and unusual background and circumstances of the case which bear on the Tribunal’s findings. 
  5. [235]
    The Tribunal having regard to the paramount principle considers it unsafe to issue a Blue Card, fully transferable in these circumstances and so confirms the decision of the Director-General, Department of Justice and Attorney-General.

Costs

  1. [236]
    Ordinarily parties in the Tribunal bear their own costs. The Tribunal may make an order requiring a party to pay costs where the Tribunal considers the interests of justice require it.
  2. [237]
    The Applicant applies for her costs pursuant to sections 102 and 107(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) which list relevant factors in deciding whether an Order for costs is appropriate.
  3. [238]
    The Applicant contends that the Respondent was given opportunities to reconsider its decision on two occasions on 8 December 2020 at the Direction of the Tribunal and again on 15 March 2021. The Respondent declined to reconsider its decision to issue a negative notice to the Applicant. Between the two dates the Respondent had received the information provided pursuant to the Notices to Produce.
  4. [239]
    On 7 April 2021 lawyers for the Applicant wrote to Blue Card services on the subject, but it appears that the Respondent again declined to reconsider its decision. A copy of this correspondence has been provided to the Tribunal by the Applicant’s solicitors.
  5. [240]
    The Applicant submits that the refusal was unreasonable and as a direct result of the refusal of the Respondent to reconsider, that Applicant incurred legal costs.
  6. [241]
    Section 102 provides that in deciding whether to award costs under subsection (1) or (2) the Tribunal may have regard to the following—
    1. (a)
      whether a party to a proceeding is acting in a way that unnecessarily disadvantages another party to the proceeding, including as mentioned in section 48(1)(a) to (g).
    2. (b)
      the nature and complexity of the dispute the subject of the proceeding.
    3. (c)
      the relative strengths of the claims made by each of the parties to the proceeding.
    4. (d)
      for a proceeding for the review of a reviewable decision—
      1. whether the applicant was afforded natural justice by the decision-maker for the decision; and
      2. whether the applicant genuinely attempted to enable and help the decision-maker to make the decision on the merits;
    5. (e)
      the financial circumstances of the parties to the proceeding;
    6. (f)
      anything else the tribunal considers relevant
  7. [242]
    In the present case the Applicant contends that the Respondent had been given two opportunities to reconsider its decision. This was done by directions of the Tribunal on 8 December 2020 and 15 March 2021. A further letter was sent by the Applicant’s lawyers on the 7 April 2021 to the Respondent, but the Respondent declined to reconsider its decision. The Matter proceeded to hearing on the 21 September 2021.
  8. [243]
    A negative notice was issued by Blue Card Services to the Applicant on the 15 May 2020. The Respondent received notice of the review of the negative notice on 23 June 2020. The Respondent supplied the relevant material to QCAT and the Applicant on 30 July 2020.
  1. [244]
    All Notices to Produce were issued by Directions dated 23 September 2020 and required compliance by 6 November 2020. The TCHHS was granted an extension of time for the compliance until 23 November 2020.
  1. [245]
    An extension of time was granted to the THHS on the 8 December until 15 January 2021. It was complied with on 15 January 2021. The Material received from THHS in compliance with the Notice to Produce was 123 pages in length.
  2. [246]
    The Tribunal directed the approval of legal representation for the parties on 23 September 2020.
  3. [247]
    The Tribunal finds that the facts of this case are complex because the convictions of the Applicant do not reflect the background to the case which is highly relevant in the review hearting. The Respondent sought additional information from employers of the Applicant who are different health Services in remote areas of the State as well as from other entities. The case involved numerous and complex interrelated investigations arising from the Applicant’s conduct in the workplace, subsequent criminal investigation, and resultant convictions. Information has also been disclosed which involves the interaction between the Applicant and professional registration bodies.
  4. [248]
    The Applicant had not disclosed much of this relevant additional information in her material.
  5. [249]
    The Tribunal finds that there was no detriment to the Applicant in this process and that the Respondent was entitled to the benefit of compliance with this Direction regarding the Notice to Produce made to the Health Services and others. 
  6. [250]
    The Tribunal finds that the Applicant has not been disadvantaged by the procedural aspects of the case as the Respondent is not at fault if the entities responding to Directions in the Notices to Produce sought and were granted extensions of time for compliance by the Tribunal. The Applicant has not shown any disadvantage in this regard.
  7. [251]
    The Respondent is dependent on other entities supplying relevant material on which to further consider its case, given the submissions of the Applicant do not provide a complete history of the case and significant facts are omitted. The Tribunal also notes the complexity of the material produced and how it impacted significantly upon the Applicant’s case.
  8. [252]
    The Tribunal therefore finds on the facts that there has not been a denial of natural justice.
  9. [253]
    The Applicant also contends that the Respondent’s case is without merit and is not complex.
  10. [254]
    It is accepted by the Tribunal that the Applicant’s case is complex. The Applicant applied for and was granted legal representation. This is usually granted where there are complex issues such that the Tribunal is satisfied under section 43 of the QCAT Act which states as follows:

In deciding whether to give a party leave to be represented in a proceeding, the tribunal may consider the following as circumstances supporting the giving of the leave—

(a) the party is a State agency.

(b) the proceeding is likely to involve complex questions of fact or law.

(c) another party to the proceeding is represented in the proceeding.

(d) all of the parties have agreed to the party being represented in the proceeding 

  1. [255]
    The Respondent’s case is a substantial one and is not without merit as the analysis in these reasons demonstrates.
  2. [256]
    The first request for a reconsideration of its decision by the Respondent occurred on the 8 December 2020 which was prior to the time for compliance (until 15 January 2021) granted to the THHS.
  3. [257]
    The Tribunal is satisfied that the information provided in compliance with the Notices to Produce was essential to the proper carriage of the Respondent’s case and the deliberation of the Tribunal as it provides independent information about the Applicant’s conduct regarding the offending, her attitude to drug use and her level of insight and remorse.
  4. [258]
    The Tribunal finds the refusal to reconsider by the Respondent was reasonable as the information supplied by this Health Service was relevant to the Respondent’s assessment of risk and the Tribunals’ eventual decision.
  5. [259]
    This is particularly relevant for the Tribunal which is concerned with future risk of harm and not proven cases of harm.
  6. [260]
    The second request for a reconsideration of its decision by the Respondent occurred on the 15 March 2021 and the third request on 7 April 2021.
  7. [261]
    In its letter dated 24 March 2021, The Respondent stated their reasons for proceeding to a hearing as being that the supportive letter from the Applicant’s psychologist, that the Applicant “has historically sought professional support following her first offending", was not sufficient as a protective factor to prevent her relapsing and reoffending in 2017. Further than that, there remain concerns given the material produced through the notices to produce process, that the Applicant’s behaviours whilst working as a nurse dispensing medication to vulnerable patients may have placed those patients at risk which directly related to the Applicant’s ability to provide a protective environment for children.[51]
  8. [262]
    The Tribunal finds that the Respondent’s position on the material is reasonable and that an oral hearing was appropriate to provide an opportunity to the Applicant to respond to the new material. The Respondent’s decision to maintain its position on the negative notice was reasonable considering the seriousness of the Applicant’s unusual and exploitative conduct in her work environment balanced against the risk of harm to children.
  9. [263]
    There is no compulsion on the Respondent to reconsider its decision simply because it is requested to do so. The Tribunal is of the view that the Respondent has not acted in a way that unnecessarily disadvantages another party to the proceeding including as mentioned in section 48(1)(a) to (g) of the QCAT Act. The directions made during the proceeding have been complied with in an appropriate and timely manner.
  10. [264]
    The decision in DBC was cited to the Tribunal in the application for costs by the Applicant. In the decision of DBC the circumstances of the case were that the Respondent Department advised the Applicant six days prior to the hearing that the Respondents no longer required a hearing, as it had reconsidered its decision and would issue a positive notice. The Tribunal concluded that it was apparent on the submissions that the Respondent’s case was always weak and that had the Respondent acted earlier, then the hearing and associated costs could have been avoided. [52]
  11. [265]
    The facts of the current case are dissimilar in that the Respondent has maintained a consistent position regarding the negative notice which was confirmed. The additional information contained much highly relevant detail. The circumstances of this case are considered by the Tribunal to be complex and substantial when the full details are revealed. This a case that on a superficial consideration would seem straightforward but it is more complex than is immediately apparent. In these circumstances the Tribunal does not consider the awarding of costs to the Applicant to be warranted or appropriate.
  12. [266]
    Based upon an examination of the matters referred to above the Tribunal has considered section 102(3)(d) of the QCAT Act and is satisfied that the Applicant has received natural justice and that the Respondent has taken reasonable steps to genuinely assist the decision maker to make a decision on its merits.
  13. [267]
    Accordingly, The Tribunal dismisses the Application by the Applicant for her costs.

ORDERS

  1. The Decision of the Director-General, Department of Justice and Attorney-General that the Applicant’s case is exceptional within the meaning of section 221(2) of the Working with Children (Risk Management and Screening) Act 2000 (Qld) is confirmed.
  1. Pursuant to section 66(1) of the Queensland Civil and Administrative tribunal Act 2009, the publication of:
    1. (a)
      the contents of a document or thing filed in or produced o he Tribunal.
    2. (b)
      evidence given before the Tribunal; and
    3. (c)
      any order made or reasons given by the Tribunal

is prohibited to the extent that it could identify or lead to the identification of the applicant, any family member of the applicant, any child, or non-party to the proceedings, save as is necessary for the parties to engage in and progress these proceedings.

  1. That the Application by the Applicant for costs be dismissed.

Footnotes

[1]Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘WWC’ Act), s 5.

[2]Ibid, s 6(a).

[3]Queensland Civil and Administrative Tribunal Act 2009, s 20(2).

[4]WWC Act, s 221(1)(c).

[5]Commissioner for Children and Young People v FGC [2011] QCATA.

[6]Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492.

[7]Briginshaw v Briginshaw (1938) 60 CLR 336.

[8]Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28.

[9]Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, (Buss J).

[10]Court Brief BCS 24.

[11]Life story, paragraphs 48, 52.

[12]Life story, paragraphs 48, 52, 76.

[13]Life story, paragraph 65.

[14]Ethical Standards Interview Unit Interview NTP 40.

[15]HAM v Director general Department of Justice and Attorney-General [2021] QCAT 28

[16]HM v Director general Department of Justice and Attorney-General [2021] QCAT 13

[17]ML V Director general Department of Justice and Attorney-General [2020] QCAT 13

[18]HLS v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 508

[19]KAT v Director general Department of Justice and Attorney-General [2020] QCAT 60

[20]Thompson v Commission for Children and Young People and Child Guardian [2010] QCAT 295

[21]Luong v Director general Department of Justice and Attorney-General [2019] QCAT 302

[22]Life story paragraph 65 and Mental Health Assessment NTP 127

[23]Mental Health Assessment 5 December 2017 NTP 127

[24]External Review Report NTP 93.

[25]Controlled Drug Register Audit 14 December 2017 NTP 133.

[26]Misappropriation of Drugs Report NTP 115.

[27]Report of the Integrated Health Service, page 4 NTP 115.

[28]Letter dated 19 March 2013 NTP 29.

[29]Letter dated 1 February 2018 NTP 83.

[30]Letter dated 1 February 2018 NTP 83.

[31]Letter dated 1 February 2018 NTP 83.

[32]Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31].

[33]Briginshaw v Briginshaw (1938) 60 CLR 336.

[34]HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28.

[35]Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303

[36]NTP 121 Report of the Integrated Health Service page 10.

[37]NTP 120 Report of the Integrated Health Service page 9.

[38]TCHHS file note NTP 59.

[39]Mental Health General Assessment on the 5 December 2017 NTP 127.

[40]Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243.

[41]Life Resolutions Report 16 November 2011 NTP 19.

[42]Mr. N Letter dated 1 December 2020, page 1.

[43]Mental Health Assessment 5 December 2017 NTP 127.

[44]Mr. N Letter dated 1 December 2020, page 2.

[45]Working with Children (Risk Management and Screening) Act 2000 (Qld), section 360.

[46]Chief Executive Officer, Department of Child Protection v Scott [No2] [2008] WASCA 171 at [109].

[47]Re TAA [2006] QCST 11, [97].

[48]File Note Meeting 20 November 2017 NTP 62.

[49]Western Australian Court of Appeal in Chief Executive Officer, Department for Child Protection v Grindrod (No 2) (‘Grindrod’) [2008] WASAT 289.

[50]FBN v Director General Department of Justice and Attorney General [2021], [57] [59].

[51]Letter Blue Card Services to QCAT dated 24 March 2021 RS002.

[52]DBC v Director General Department of Justice and Attorney-General [2021] QCAT 21.

Close

Editorial Notes

  • Published Case Name:

    CTA v Director-General, Department of Justice and Attorney-General

  • Shortened Case Name:

    CTA v Director-General, Department of Justice and Attorney-General

  • MNC:

    [2021] QCAT 442

  • Court:

    QCAT

  • Judge(s):

    Member Hemingway

  • Date:

    21 Dec 2021

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Campagnolo v Bennett [2020] QCAT 13
2 citations
Jump To
Cite 1 - [2020] QCAT 13
Cite 2 - [2020] QCAT 13
Chief Executive Officer, Department of Child Protection v Scott No.2 (2008) WASCA 171
2 citations
Jump To
Cite 1 - (2008) WASCA 171
Cite 2 - (2008) WASCA 171
Chief Executive Officer, Department of Child Protection v Scott [No 2] [2008] WASCA 17
1 citation
Jump To
Cite 1 - [2008] WASCA 17
Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303
1 citation
Jump To
Cite 1 - [2013] QCATA 303
Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291
2 citations
Jump To
Cite 1 - [2011] QCATA 291
Cite 2 - [2011] QCATA 291
Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
2 citations
Jump To
Cite 1 - [2004] QCA 492
Cite 2 - [2004] QCA 492
Commissioner for Children and Young People and Child Guardian v Storrs [2011] QCATA 28
2 citations
Jump To
Cite 1 - [2011] QCATA 28
Cite 2 - [2011] QCATA 28
DBC v Director-General, Department of Justice and Attorney-General [2021] QCAT 21
2 citations
Jump To
Cite 1 - [2021] QCAT 21
Cite 2 - [2021] QCAT 21
Grindrod v Chief Executive Officer [2008] WASAT 289
2 citations
Jump To
Cite 1 - [2008] WASAT 289
Cite 2 - [2008] WASAT 289
HAM v Director General, Department of Justice and Attorney General [2021] QCAT 28
3 citations
Jump To
Cite 1 - [2021] QCAT 28
Cite 2 - [2021] QCAT 28
Cite 3 - [2021] QCAT 28
HLS v Chief Executive Officer, Public Safety Business Agency [2015] QCAT 508
1 citation
Jump To
Cite 1 - [2015] QCAT 508
HM v Director-General, Department of Justice and Attorney General [2021] QCAT 13
1 citation
Jump To
Cite 1 - [2021] QCAT 13
KAT v Director-General, Department of Justice and Attorney General [2020] QCAT 60
1 citation
Jump To
Cite 1 - [2020] QCAT 60
Luong v Director-General, Department of Justice and Attorney-General [2019] QCAT 302
1 citation
Jump To
Cite 1 - [2019] QCAT 302
Queensland Building and Construction Commission v Respondent M [2021] QCAT 260
1 citation
Jump To
Cite 1 - [2021] QCAT 260
Re TAA (2006) QCST 11
2 citations
Jump To
Cite 1 - (2006) QCST 11
Cite 2 - (2006) QCST 11
Thompson v Commission for Children and Young People and Child Guardian [2010] QCAT 295
1 citation
Jump To
Cite 1 - [2010] QCAT 295
Volkers v Commission for Children and Young People and Child Guardian [2010] QCAT 243
2 citations
Jump To
Cite 1 - [2010] QCAT 243
Cite 2 - [2010] QCAT 243

Cases Citing

Case NameFull CitationFrequency
PPA v Director-General, Department of Justice and Attorney-General [2022] QCAT 1662 citations
1

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