COB v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2024] QCAT 251

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: COB v Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships [2024] QCAT 251 PARTIES: COB (applicant) v DEPARTMENT OF SENIORS, DISABILITY SERVICES AND ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS (respondent) MATTER NO: GAR303-21 MATTER TYPE: General administrative review matters DELIVERED ON: 6 June 2024 HEARING DATE: 3 November 2023 HEARD AT: Toowoomba DECISION OF: Member Burson ORDERS: The decision of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships to issue a negative notice dated 20 January 2021 and the transitioned exclusion 1 February 2021 is confirmed. The publication of the name of the Applicant and witnesses be prohibited other than to parties to the proceeding pursuant to section 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Pursuant to section 66(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) that the publication of documents filed by the parties in this proceeding is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these proceedings. CATCHWORDS ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where applicant sought a review of a decision by the respondent to issue an exclusion from working with people with a disability – -- 1 of 6 -- 2 where the applicant suffered from mental illness – where the applicant committed offences Disability Services Act 2006, s 41, s 88, s 92, s 93, s 94, s 138ZR(1), s 138ZW, s 367, s 371, schedule 8 Queensland Civil and Administrative Tribunal Act 2009, s 19, s 20, s 66(1) Human Rights Act 2019 (Qld), s 13(2)(b) Briginshaw v Briginshaw (1938) 60 CLR 336 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: FJ Chen - Counsel Instructed by Crown Law REASONS FOR DECISION Background [1] COB applied to the Queensland Civil and Administrative Tribunal seeking review of the decision of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships, (hereinafter ‘DATSIP’) to exclude her pursuant to section 92 of the Disability Services Act 2006 (‘DSA’) from working with people with disability. [2] COB received a negative notice on 20 January 2021. On 1 February 2021, certain amendments to the DSA came into effect. COB’s negative notice became a ‘transitioned exclusion’ under the DSA pursuant to sections 367 and 371. [3] COB applied to QCAT seeking review of the decision of DATSIP and seeking to cancel the transitioned exclusion from carrying out disability work. [4] COB sought clearance to carry out disability work to enable her to work in paid employment within the disability services sector. [5] COB immigrated to Australia to undertake a medical degree. COB has diagnosed mental health conditions which have impacted on her ability to work and complete studies. [6] COB partnered and had a child with her partner. There was a history of domestic violence in the relationship. COB has since re-partnered and has remained in a stable relationship since she re-partnered. [7] COB has a disclosable criminal history and has been charged and convicted of offences. This has involved a history between 22 July 2008 and 26 June 2019 and includes the following offences: (a) Breach of domestic violence order; (b) Common Assault; and (c) Assault Occasioning Bodily Harm. -- 2 of 6 -- 3 [8] Included in COB’s history are two further discontinued charges of breach of domestic violence order and a public nuisance offence. [9] These offences are not determined to be disqualifying offences under the DSA. [10] The Tribunal must consider the factors in section 93 DSA against the background of the offending behaviour. Legislation [11] Section 138ZR(1) DSA states that a decision to issue an exclusion to a person is a reviewable decision. [12] Section 138ZW DSA provides the ability for a person to seek external review of the decision to provide COB with a negative notice. [13] The decision for QCAT is to exercise the functions of the decision maker1 to determine the correct and preferrable decision.2 [14] The paramount consideration guiding decisions under the DSA is found in section 41 which states: ‘The paramount consideration in making a decision under this part is the right of people with disability to live life free from abuse, violence, neglect or exploitation, including financial abuse or exploitation’. [15] Section 88 DSA outlines the information that the chief executive was required to consider: this includes, for COB’s purposes, police information and domestic violence information. [16] Section 92(2) DSA states a clearance must be issued to a person if satisfied that the person does not pose an unacceptable risk of harm to people with a disability. The alternative is that an exclusion must be issued if the person poses an unacceptable risk of harm to people with a disability. [17] Section 93 DSA outlines the manner in which DATSIP conducts a risk assessment. [18] Section 94 DSA outlines the mandatory considerations for matters to be considered. [19] Unacceptable risk of harm is not defined under the DSA. [20] Harm is defined in schedule 8 of the DSA. [21] The Tribunal in making decisions must consider the Human Rights Act 2019 (Qld) and give proper consideration to the human rights relevant to the decision. Applicant’s Evidence [22] COB worked for a disability service provider for approximately three (3) years. [23] COB provided a number of character references from her church community, including her pastor, friends throughout the years and her previous employer. It is clear that she has built a community around her which is supportive, and they have some understanding of COB’s past difficulties. [24] The referees included her ex-partner and father of her child, and her current partner. Her ex-partner supports her in her endeavour to cancel the exclusion. 1 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19. 2 Ibid, s 20. -- 3 of 6 -- 4 [25] COB has a criminal history expanding over an eleven (11) year period. It is clear from COB’s criminal history that there are long periods with no offending behaviour, then periods of offending behaviour. [26] COB had three (3) charges of violence in her criminal history, including contravention of a domestic violence order which occurred at a changeover with her ex-partner and young son. [27] The most serious offending behaviour was towards her young son, in October 2018. A period six (6) years ago. This included physically assaulting her son and this assault being witnessed by members of the public, who called the police. [28] COB, in her submissions, outlined that the day before the offence she had been featured in a mental health exhibit and had presented a video discussing her mental health publicly. COB then states in her submissions that she had a relapse of her mental health condition the next day. [29] In addition, at the time of the offending, COB identified a number of stressors including transitioning from her previous workplace to a new workplace, leading a mental health program called GROW and undertaking a mental health course, assisting others at this time. [30] COB gave evidence at the hearing and expressed her remorse. COB gave evidence that her son was required to live with his father for a period of time after the offence. COB again shares care of her son with his father. [31] COB gave evidence that her son has a diagnosis of attention deficit hyperactivity disorder and recognised that this is a disability. [32] COB gave evidence that she had undertaken the Triple P parenting program twice to assist her parenting of her son. [33] COB also presented evidence from the GROW Community organisation. It was described as a 12-step program specific to addressing emotional and mental health problems. It is noted that COB identified that she was not attending GROW at the time of giving evidence. [34] Ms C from the GROW organisation was aware of the charges and explained the GROW program. Ms C also provided that she and COB had also shared faith. Ms C outlined that she had an advanced diploma in family therapy but had not practised this. [35] Ms W gave evidence of COB’s participation in a creating coping program and that this provided practical skills to COB. Medical Evidence [36] COB has a diagnosis of bipolar disorder type 2, premenstrual dysphoric disorder and borderline personality disorder. [37] This was evidenced by a medical report of Dr HA, treating psychiatrist. Dr HA stated that a relapse of her bipolar disorder may be associated with a risk of aggressive behaviour. Dr HA opined that COB’s current situation, with minimal stressors and the absence of additional problems, reduces the likelihood of relapse. Dr HA opined that the Applicant should be allowed to hold a yellow card to enable her to provide services to people with a disability. -- 4 of 6 -- 5 [38] COB has also been supported by her treating medical practitioner Dr BB. Dr BB was COB’s treating General Practitioner and had previously worked as a psychiatric registrar in 2017. Dr BB was thorough and thoughtful in his evidence about COB. Dr BB identified that he did not undertake a risk assessment for work in the disability sector. Dr BB noted that COB’s medication is prescribed and supervised by psychiatrists at the Toowoomba Base Hospital. [39] Dr SB, Consultant Psychiatrist, provided a further opinion and stated in his report that COB has not experienced a manic episode. [40] COB also provided a report from a treating psychologist, Ms S. The report at the time of hearing was six (6) years old and could not attest to COB’s current psychological condition. Discussion [41] DATSIP’s submissions identified that COB had a three (3) to five (5) year period that was free from mental health concerns. COB has previously relapsed under periods of stress and has resorted to violence during these relapses. [42] COB’s Working with Children clearance was returned on 3 May 2018 and the offending behaviour occurred on 11 October 2018. [43] It is noted that at the time of hearing, COB was doing well and had identified strategies for managing her mental health. [44] It was also noted that her psychiatrist identified that there were minimal stressors although a relapse of her bipolar disorder may be associated with a risk of aggressive behaviours. [45] COB is also supported in her caring of her young son, by her current partner and her ex-partner. It is commendable that she has undertaken parenting courses and expressed her remorse. Given the intimate knowledge that these referees had of COB’s offending greater weight is given to this evidence than to the evidence of the supportive friends. [46] COB’s previous employer identified that over the course of working in the disability sector she had worked with challenging and complex individuals and displayed no anger or outbursts in this working period. [47] COB has undertaken mental health course work, is supported by her church community and had previously attended mental health course GROW, though evidence was given that she was not currently attending any GROW meetings. [48] It was noted that COB is no longer treated by Dr HA, though there is evidence that she continues her care under the Toowoomba Base Hospital psychiatry team, and she is supported by her General Practitioner. [49] The Tribunal must conduct a risk assessment in accordance with section 93 DSA. The Tribunal in accordance with section 93(2)(b)(i) and (ii) may decide there is an unacceptable risk of harm if it is satisfied that there is a real and appreciable risk of harm to people with a disability, without needing to be satisfied that it is likely the person will cause harm. [50] I must also consider the paramount consideration outlined in paragraph [14] above. -- 5 of 6 -- 6 [51] The weight given to the evidence in this matter is in accordance with Briginshaw v Briginshaw.3 [52] The offending against her son was offending against a person with a disability. [53] COB’s history shows a period of relapse every three (3) to five (5) years with violence occurring during these relapses. [54] Dr SB, Consultant Psychiatrist saw COB over two appointments and did not undertake any risk assessment regarding the likelihood of violent offending if a relapse was to occur. [55] It is also noted that Dr SB did not undertake any risk assessment regarding the likelihood of violent offending if a relapse was to occur. Conclusion [56] I have considered all the evidence in this matter and conducted the necessary weighting exercise. [57] The Tribunal finds that there is a real and appreciable risk of harm to people with a disability if the exclusion is cancelled. [58] I have considered the Human Rights Act and given proper consideration as to whether issuing an exclusion limits the Applicant’s human rights. [59] I am satisfied that any limitation on the Applicant’s human rights is justified because it has the proper purpose of promoting and protecting the rights, interests and wellbeing of people with a disability.4 Non-Publication Order [60] I order that the publication of the name of the Applicant and witnesses be prohibited other than to parties to the proceeding pursuant to section 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). [61] I also order, pursuant to section 66(1)(a) of the QCAT Act, that the publication of documents filed by the parties in this proceeding is prohibited save as was necessary for the parties to engage in and progress these proceedings and to the extent they are referred to in these proceedings. 3 (1938) 60 CLR 336. 4 Human Rights Act 2019 (Qld), s 13(2)(b). -- 6 of 6 --