DAN v Director-General, Department of Justice and Attorney-General [2021] QCAT 229

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: DAN v Director-General, Department of Justice and Attorney-General [2021] QCAT 229 PARTIES: DAN (applicant) v DIRECTOR-GENERAL, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL (respondent) APPLICATION NO/S: CML398-19 MATTER TYPE: Childrens matters DELIVERED ON: 29 June 2021 HEARING DATE: 22 March 2021 HEARD AT: Toowoomba DECISION OF: Member Hemingway ORDERS: 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. Pursuant to section 66(1) of the Queensland Civil and Administrative tribunal Act 2009, the publication of (a) the contents of a document or thing filed in or produced by the Tribunal; (b) evidence given before the Tribunal; and (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. 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 -- 1 of 25 -- 2 issue a negative notice and cancel blue card-where applicant has a criminal history without any serious or disqualifying offences-where the charged offences involved forgery and uttering -whether exceptional circumstances exist-whether it is in the best interests of children to issue a positive notice. 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 171 Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291 Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: Ms C Davis REASONS FOR DECISION Background [1] This is an application for review of a decision by the Director-General (the chief executive officer), Department of Justice and Attorney-General (‘the Respondent’) that the case of DAN (‘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] The Applicant is aged 33 and lives in a regional Queensland town. [3] The Applicant seeks a BlueCard to continue pursuing studies in nursing. She was previously issued with a BlueCard in 2008, 2011 and 2015. [4] The Applicant was convicted in the Magistrates Court on 14 May 2018 under the Criminal Code (Qld) of the offences of Forging and Uttering and Fraud. [5] The Respondent wrote to the Applicant on 16 July 2018 including copies of the updated police information indicating a change of criminal history. [6] The letter invited the Applicant to respond to the police information and submissions as to why the Applicant should not have her positive notice cancelled and a negative notice issued. -- 2 of 25 -- 3 [7] The Applicant provided oral submissions to the Respondent on 30 July 2018 and 3 October 2019 and written submissions on 1 August 2018 and 9 April 2020. [8] The Applicant was advised by letter dated 30 October 2019 that her eligibility to hold a blue card had been re-assessed and that the Respondent had issued her a negative notice under the “WWC Act”. [9] The Applicant was provided with written notice of this decision, reasons for the decision and the relevant review information. [10] On 5 November 2019, 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 [11] The Queensland Civil and Administrative Tribunal (“the Tribunal”) reviews the decision of the Respondent in these proceedings. The Tribunal does this in accordance with the WWC Act and the Queensland Civil and Administrative Tribunal Act 2009 (Qld). [12] The purpose of the review by this Tribunal is to produce the correct and preferable decision.1 [13] The object of the WWC Act is to promote and protect the rights, interests, and wellbeing of children in Queensland through the administration of a scheme to screen persons seeking employment in particular areas or who operate relevant businesses. 2 [14] The welfare and best interests of children is paramount.3 The Act must be administered in accordance with this principle. [15] The Tribunal must apply the paramount principle in its review of the Decision as to whether a finding of exceptional case is justified. [16] Section 221 of the WWC Act provides for the issue of a positive notice (subject to section 221(1) (b) (c) and (d)) except where the chief executive finds an exceptional case applies. [17] The decision under review is whether an exceptional case exists such that the presumption under section 221 of the WWC Act is rebutted. [18] 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.4 [19] The issue for determination then where the convictions do not relate to a serious or disqualifying offence is whether an exceptional case exists. 5 1 Queensland Civil and Administrative Tribunal Act 2009 s 20 (2) 2 Working with Children (Risk Management and Screening) Act 2000 (Qld) s 5. 3 Ibid, s 6(a). 4 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, [30]. 5 WWC Act s 221 (1) (c). -- 3 of 25 -- 4 [20] What is an exceptional case is not defined in the legislation. It is a matter which should be determined on an individual case basis not hampered by a general rule.6 [21] In reaching a decision, the Tribunal must also 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. [22] The standard of proof required to establish that an exceptional case exists is on the balance of probabilities.7 [23] 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. 8 Criminal History and Circumstances of the Offending [24] The Applicant has no criminal history apart from the offences committed on 13 April 2018 for which she was convicted and fined five hundred dollars with no conviction recorded on all charges. [25] The details of the offending are that following obtaining a prescription from her doctor on 7 March 2018 for Codalgin 500mg/30mg and Valium 5 mg, the Applicant presented the script to a pharmacy on 13 April 2018. [26] The Applicant had altered the prescription to attempt to obtain unauthorised repeats of the medications by writing Rx2 on the prescription. [27] The forgery was detected by pharmacy staff who referred the matter to police. Subsequently, the Applicant was interviewed by police, made admissions and was issued with a Notice to Appear. [28] She was charged and subsequently convicted of the offences of Forgery, Uttering and Fraud on 14 May 2018. [29] At the time of the offences, the Applicant was aged 31 and admitted that she was addicted to drugs and offended to source drugs for her addiction. Section 226 of the WWC Act Whether it is a conviction or charge [30] The Applicant has three convictions for offences committed on 13 April 2018. [31] The Applicant pleaded guilty and was convicted of the charges of Forgery and Uttering, Utter a forged document, Fraud - Dishonestly induces the Delivery of property. The Applicant was convicted on 14 May 2018 in the Magistrates Court a by Magistrate MN and was fined $500 with no conviction recorded. [32] The Applicant was aged 31 at the time. [33] The facts of the offences are that: (a) The Applicant was provided with a script on 7 March 2018 by her doctor. She wrote RX2 on it in order to knowingly obtain further medicine. She presented 6 Commissioner for Children and Young People and Child Guardian v Maher [2004] QCA 492, [28]. 7 Briginshaw v Briginshaw (1938) 60 CLR 336. 8 Chief Executive Officer, Department for Child Protection v Scott [No2] [2008] WASCA 171, [109] (Buss J). -- 4 of 25 -- 5 the script to the Pharmacy on 16 April 2018 to obtain further medicine. The Applicant told police that she had a drug addiction and she knew her actions were an offence but forged the prescription to support her addiction. Whether the Offence is a serious and whether it is a disqualifying offence [34] The offences are not serious or disqualifying offences. When the Offence was committed [35] The offences occurred on 13 April 2018. The offences are relatively recent when considered with other relevant information discussed in the Applicant and Respondent's submissions. The nature of the offence and its relevance to employment, or carrying on a business, that involves or may involve children. [36] The offences did not involve children, although children may have been present in the pharmacy when the offences were committed. The nature of the offending raises questions about the judgment of the Applicant when desperate and when impelled to cross societal boundaries to commit a crime to satisfy an addiction. This raises a concern were the Applicant to have the care of children at a time when she was controlled by an addiction. In the case of a conviction –the penalty imposed by the Court and, if the court decided not to impose an imprisonment order for the offence or not to make a disqualification order under section 357, the court’s reasons for decision. [37] The Court imposed a fine of five hundred dollars and did not record a conviction. No reasons for the Court’s decision are available to the Tribunal. In other cases, a lesser penalty is sometimes taken by the Tribunal as indicating the offending is not regarded as seriously by the Court. [38] However, the Tribunal must always prioritise the interests and well-being of children. The considerations of the Court in sentencing are distinct from the considerations which must concern this Tribunal in the review process. The Tribunal when weighing the penalty imposed, must prioritise the paramount principle in its consideration of the review of the decision. Any information about the person given under sections 226(e)318,319,335,337,338 of the WWC Act and under sections 138 ZG of the Disability Service Act (Qld) 2006 [39] There are no reports or information available to the Tribunal under these provisions. [40] 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.9 [41] 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: 9 Commissioner for Children and Young People and Child Guardian v Eales [2013] QCATA 303, [6]- [7]. -- 5 of 25 -- 6 ... 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. 10 [42] 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. [43] The standard of proof is that the Tribunal must be satisfied on the balance of probabilities11 and bearing in mind the gravity of the consequences that an exceptional case exists. The burden of proof is not borne by either party. [44] The evidence of the Applicant and her witnesses and written submissions were considered in the hearing. The Applicant’s Evidence [45] The Applicant states that she is seeking to renew her BlueCard as it is required for her desired course of study in Nursing. [46] She self-discloses a long struggle with severe anxiety, and depression, suicide attempts, overdose and a codeine dependency and mental health issues following the breakdown of relationships. [47] She states that she actively pursues treatment. Following the offences on 13 April 2018, the Applicant became a voluntary patient at the Hospital Alcohol and Drug Service (HADS) at E Hospital. [48] The applicant completed a de-toxification program and has continued the ATODS program. She was also treated by Biala Roma Street Clinic and Redcliffe Community Health Centre by reason of the location of her then residence. [49] She has engaged with several health practitioners which include Dr S(Brighton), Ms R from Drug Arm, then Lives Lived Well, Dr Y, Darling Downs, and Dr P. [50] The Applicant states her belief that she was not, “addicted to drugs, but to one drug.”12 [51] She also states her view that her use of opioids was not as significant as others who used a greater amount of the drug than she did. [52] The Applicant states her belief that the use of opioids was not in the category of being an illicit drug as it was a prescription medication. [53] The Applicant maintains her appreciation of the wrongdoing of her criminal actions and the impact of this on her future aspirations and states that she accepts responsibility for it. She states the offending occurred in a moment of despair. [54] The Applicant states that she now has a strong support network, family connections and a stable relationship. She has continuing involvement with her programs of support. 10 Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291, [31]. 11 Briginshaw v Briginshaw (1938) 60 CLR 336. 12 Applicant Submission dated 1 August 2018 BCS 32 S -- 6 of 25 -- 7 [55] The Applicant cites the support of her counsellor Ms R, Dr S, Dr Y and her parents and partner. [56] The applicant states that her increased awareness and insight is demonstrated by her commitment to the goal of becoming a nurse. She wants to avoid the pain and distress associated with the offending and its consequences. [57] The Applicant identifies what she regards as the protective factors which the Tribunal ought to consider in this review.13 [58] These include her extreme remorse given that she had no prior criminal history; that her goal is to help other persons who have been through what she has been through. [59] She cites her changed circumstances; the passage of time; development of personal interests and family relationships, addressing mental health concerns and managing the opioid replacement therapy. [60] She now resides approximately 40 minutes from her parents' home, having moved there to obtain support from them. She lives with her partner on a property and has several animals to care for. She stated that she had developed an interest in equine therapy. She spends time with her partner’s nephew aged two. [61] She states that she has an appreciation of the trauma she has caused to others resulting from her criminal actions. [62] She is hoping to conceive a child with her partner and sees her desire to have a child whom she would keep safe from danger as a positive objective. [63] The Applicant states regarding the mandatory considerations of the offending, that she pleaded guilty to a non-serious offence. She acknowledges her offending in 2018 and the fact of her conviction. [64] She states that the penalty was a fine but that no conviction was recorded against her. She urges the Tribunal to weigh the significance of this lesser penalty. [65] She states that the offences were not committed in the course of her employment, nor did they involve children. [66] In her closing submissions, the Applicant referred to section 58 of the Human Rights Act 2019 (Qld) stating her belief that a refusal of the BlueCard was a denial of her human right to an education under section 36 of the Human Rights Act 2019 (Qld). [67] The Applicant called several witnesses, and they were available for cross examination by the Respondent. [68] The Applicant stated that she initially studied and worked in horticulture then commenced a course of Paramedics but discontinued this in 2018. She commenced a Diploma in Nursing that year and has discontinued this course subject to the outcome of these proceedings. [69] Currently she is employed at a local service station and does several shifts each week. The information she provided in her life story stated that she had been in 13 Applicant’s statement of evidence paragraph 4. -- 7 of 25 -- 8 receipt of a disability pension in 2015 but states that, “I am passionate about helping people and didn’t want my time on the disability pension to be my only story”. 14 [70] The Applicant cites prior experience in working with a single disabled child as a carer in 2014. Further, she states that in the period 2013 to 2017 she had worked in community-based nursing and aged care. [71] The Applicant has experienced domestic violence in her relationships. This is acknowledged in the medical reports filed in the proceedings and by Ms QD, her partner and by her mother. [72] The Applicant states that she has experienced depression, stress-related headaches, and insomnia. She states that she has had a long history of mental illness and admits addiction to codeine but as a self-medicating therapy. She stated that she did not appreciate her dependence on codeine until she could no longer access the drug without a prescription from her doctor. [73] She is currently on a suboxone program (opioid replacement therapy) which is aimed to reduce dependency upon codeine. Treatments of her mental health concerns have had limited long- term success. She had requested and undergone 20 sessions of ECT (Electroconvulsive Therapy). [74] The Applicant describes her addiction to be the result of self-medicating for emotional pain. [75] In her life story the Applicant details the relationship issues she experienced indicating that she first used codeine for headaches when she was aged around 19. In November 2012 following a relationship breakdown she took an overdose of codeine and zoloft. [76] In 2013 she commenced a new relationship which she describes as being abusive, stating that she suffered mental, physical and verbal and emotional abuse. Against this background the Applicant states that she began, “unconsciously using codeine daily.” [77] Following the breakdown of this relationship she made another attempt on her life. She received ECT treatment following this attempt. In 2015 she was placed on a disability pension due to her mental health issues. [78] Under cross-examination she stated that she is currently medicated by injection which is, “better than the wafers”. The drug is released over a one-month period. [79] Under cross-examination she admitted prior use of cannabis. She stated that it made her, “a bit paranoid.” [80] Under cross-examination the Applicant admitted the use of someone else’s medication in 2019 because the other drug was not “holding her.”15 [81] Under cross examination she also stated that she disagreed with the treatment regime of the doctors regarding the cessation and restarting of a drug as a method of management of her condition. 14 Life story 8 January 2020 page 2. 15 H Hospital Medical Records 7 March 2019. -- 8 of 25 -- 9 [82] She stated that she had some strategies in place to manage her anxiety and that she was in contact and assisted by Dr Y and Dr T. [83] Under cross-examination, she stated that if she were employed in a hospital setting that she would be able to manage any temptations to misuse drugs as she would be part of a team. [84] The Applicant gave the example of her current employment at a service station where she does several shifts alone and that she had managed these commitments. [85] The Applicant also described what she called a rebound headache if she took too much panadol and ibuprofen together. [86] When asked about medications, the Applicant stated that she could go to her parents if she needed help and that seeking help helps you. [87] The Applicant stated that her history of mental health issues and hospital admissions affected the people in her life and that she believed she had let them down. [88] The Applicant stated that this included the pharmacy staff at the time of the offending. She stated that she now knows how to seek help. [89] In the Nursing context, she is aware of the protocols for handing drugs and would follow them. These protocols included having two people handling drugs. She regarded these protocols as a safety device for protecting her. [90] She further stated that she would tell co-workers of her dependency and seek help if tempted. She stated her belief that her mental health is stable at present. Dr Y [91] Dr Y provided a letter dated 2 April 2020. He also gave oral evidence and was cross- examined by the Respondent. His evidence relies upon what he has been told by the Applicant and his professional assessment of her case. [92] He first saw the Applicant in January 2019. Since then, he stated that she complied with her management plan, attended appointments, and proactively sought out other health professionals to support her recovery process. [93] He believed that the Applicant had a high degree of awareness and insight about the impact of her offending on society, that her risk factors or triggers are minimal, that the face-to-face opioid treatment program has a mitigating effect on her risk of further offending and that the offences do not impact children or future work with children. [94] He stated that she was now supervised by Dr T since February 2021. [95] Dr Y was told in cross-examination that in March 2019, the Applicant had taken another person’s medication. He responded that this was not uncommon. [96] He was asked in cross-examination how long the detoxification program would last, and he responded that it may be for life, or a minimum time of 12 to 24 months. He commented that the dose was being continually reduced. [97] He stated that the use of codeine may have been for psychological pain arising from mental health issues. -- 9 of 25 -- 10 [98] In cross–examination he responded to a question about external stressors for the Applicant saying he believed that her desire to study, her current employment at a service station, and being in a relationship were evidence of her “coping okay.” [99] He further stated that her continued engagement with professionals was a protective factor and that the recovery period for the suboxone program therapy would be two to five years. [100] In cross–examination he stated that he thought that the Applicant’s response to escalating lifestyle distress was not a concern as her lifestyle was currently stable. [101] In cross–examination he stated that her previous strategies of strong engagement, open and honest commitment verbally and in her actions to remain abstinent were evidence of coping. [102] He further stated that he was, “unsure as to how she would go with temptations at work.” [103] He was asked about her support network and stated that she had personal and family supports and professional supports such as Drug Arm. [104] When asked if there were any concerns about the Applicant working as a nurse, he stated that he, “did not think so.” He stated that he was not aware of any illicit drug- use by the applicant. [105] He restated that he believed the help-seeking behaviours of the Applicant were a strong and positive feature. He believed she regretted the use of opioids in general and would, “never do anything to jeopardise her future goals.” Ms R [106] Ms R is a counsellor who works with substance abuse clients. Ms R provided a report and gave oral evidence and was cross examined. She stated in her written response dated 26 March 2020 that the Applicant had been engaged with Lives Lived Well since 7 July 2019 and previously with Drug Arm. [107] Ms R stated that the Applicant was a self-referral, that she was not aware of the diagnosis of the Applicant. [108] She stated that she had read the Reasons for the Decision of BlueCard services to issue a negative notice. She was aware of the offending, the penalty and that there had been a mishap which resulted in the matter being heard in Court and that no conviction was recorded. [109] The Applicant attended five sessions with Ms R on 11 April 2019, 23 April 2019, 9 May 2019, 30 May 2019, 6 June 2019, and her file was closed by the organisation on 17 July 2020 with “completion of all goals”. [110] Her evidence was that she believed that the Applicant had significant insight into past behaviours and the impact this had on her life and society. [111] Ms R stated that the Applicant now had a stable life situation with supportive partner and family and that she knew how to access supports and had improved resilience. [112] In cross–examination, Ms R was unable to comment about the possibility of risks of temptation if the Applicant became a nurse as this was outside of the scope of her letter of reference dated 26 March 2020. -- 10 of 25 -- 11 [113] In cross–examination she stated that she had treated people exposed to temptation in working arrangements and stated that the protective factors were routine, existence of support network and work supports, strengthened relationships, and accessing supports through de-brief processes. [114] Ms R stated that she believed the powerful desire of the Applicant to complete her chosen course was important as a protective factor. The evidence of Ms R is silent as to the effects of the Applicant’s conduct on children should she have them in her care or be a role model for them. [115] Ms R’s evidence supports the Applicant’s statement of her goals and experiences. It does not include any consideration of her past medical history or of any on-going issues with poly substance abuse. [116] Ms R’s evidence does not provide significant support for the submission that the Applicant now has either insight or empathy except in the narrow sense of how events have affected the Applicant. Dr P [117] Dr P provided a letter dated 9 April 2020, gave oral evidence, and was cross- examined. The Tribunal accepts his qualifications in mental health to be appropriate. He last saw the Applicant one week prior to the hearing and sees her fortnightly. [118] He stated that he was aware that the Applicant had forged a script for codeine, but that on balance he did not think that this was important as the Applicant wanted to be a nurse and that she was taking responsibility for her actions. [119] Dr P stated that this goal of wanting a nursing career, was a strong protective factor. [120] He is aware that the applicant is working at a service station and says this promotes routine and stability. [121] He stated that she is a voluntary patient and is proactive in attending appointments. He stated that she is compliant with the program and that the dose of medication is reducing. [122] In cross examination, Dr P stated that he does not hold concerns about the breakdown of the Applicant’s support network. He says the risk factors are minimal. [123] He stated that she is not at risk of re-offending as she has support of ATODS, Family and General Practitioner, Counsellor and Partner. Ms ON [124] Ms ON provided a written report, gave oral evidence, and was cross examined. She is a nurse educator and has been qualified for 26 years. She stated that she supervised the Applicant when the Applicant was completing her placement in her diploma of nursing course of study. [125] She stated that she was aware of a negative notice to the Applicant and stated that she found her to be diligent and reliable. [126] She stated that she had known the Applicant for six months, having worked closely with her. She stated that the Applicant’s performance in the nursing setting was of a high standard and that she gives it her all. -- 11 of 25 -- 12 [127] She stated that her contact with the Applicant was for seven hours each day, three days per week during the Course. She commended the Applicant’s work practices. [128] She stated that she, "gave it her all” in training and that she considered that she needs to be, “given a chance to do this.” [129] Ms ON described the Applicant’s clinical ability to be high and that she did well in simulated skills. [130] Ms ON stated her belief that nursing is very challenging and that she was familiar with substance abuse and misuse of prescription medications amongst some nursing staff. [131] She was aware that the Applicant had been issued with a negative notice and the reasons for this. She stated, “that nursing staff work in an industry with far worse drug related crimes”.16 [132] In cross-examination, Ms ON said that there were strict safety measures in place. These included audits, reportable practices and practice standards which prevented the misuse of medications available to staff in the health-care environment. [133] In cross-examination, Ms ON stated that it is best to observe how the Applicant goes in placement; that she has undergone rehabilitation to maintain safe practices for herself. The Applicant has successfully undergone sessions with substance -abuse counsellors and had strategies in place. [134] When asked about the suboxone program, Ms ON responded that she did not know if the Applicant was still on the program and stated that she knew of other employed staff who were on the program. [135] Ms ON stated that in her view there was no way the Applicant could access a scheduled drug unlawfully in the nursing environment. [136] Ms ON stated that the protective measures included the placement of a camera in the medication room and that two staff are required to be present to cross check the administration of Schedule (iv) drugs and that any missing medication was reportable to Police. [137] Ms ON stated that missing medication in acute care is subject to audit. [138] Ms ON stated her belief that nursing is a very stressful profession. She stated that instruction is given to nurses during their course on how to de-stress around work issues such as de-briefing. Mrs WC [139] Mrs WC provided a report dated 26 March 2020 and gave oral evidence and was cross examined. She stated that she could see an improvement in her daughter, the Applicant. She described her as going from strength to strength and was very pleased with her. [140] Mrs WC said that she sees her daughter regularly and that they talk and text daily. [141] Mrs WC stated that a couple of times the Applicant had been down and that she had noticed that the Applicant analysed what was going on and worked through it. 16 Ms ON Letter Dated 24 February 2020. -- 12 of 25 -- 13 [142] Mrs WC stated that the Applicant was mentally stronger, had a good network and was continuing to mature. [143] Mrs WC was asked how the events from 2011 had affected the Applicant. She said that it has taken its toll but that she herself had worked with dementia patients so was able to identify the changes and improvements in the Applicant. [144] In cross–examination, she stated that she thought the help from the psychologist had been an improvement. She expressed the view that were the Applicant’s relationship to end it would not be “anything like in the past”. Mrs WC said that previously the Applicant “knew best, but now she listens.” [145] Mrs WC identified the support network of family, partner, and health professionals. She stated that the Applicant used strategies such as relaxation and analysing what’s happening. [146] Mrs WC stated she observed the Applicant to now do acts of kindness, say things she never would have said before, be more focussed on others’ well-being, show compassion. [147] Mrs WC stated that she was aware that the Applicant spent time with her partner’s nephew aged two, but that she had not spent time with them at those visits. Ms QD [148] Ms QD provided a report dated 24 February 2020, gave oral evidence, and was cross examined. She stated that she was aware of the reasons for the hearing and that she has known the Applicant for fourteen years as a family friend and was now her partner. [149] She described the WC family to be a “well adjusted, professional and hard-working family with strong morals”.17 [150] Ms QD states that she and the Applicant are now in a relationship. She stated that as a long- time family friend she has seen the Applicant go through stressful life events which have brought her to this point. [151] Ms QD stated that she believed that the Applicant has battled her mental health concerns and that she is a caring person who is passionate to be able to work with vulnerable people. [152] Ms QD stated that she has noticed the Applicant to be more focussed since commencing work at the service station. [153] In cross–examination, Ms QD was asked about the mental health history records of the Applicant which included diagnoses of severe depression and anxiety, a history of abusive relationships and relationship breakdowns. [154] Ms QD stated that she had known the Applicant at the times she commenced and ended relationships and that she is now doing well with how she coped with stressful events. [155] Ms QD stated that she supported the Applicant who had admitted herself to the HADS program (Hospital Alcohol and Drugs Service) at B Hospital. Ms QD stated that the Applicant had continued her engagement with mental health services. 17 Reference Ms QD 24 February 2020. -- 13 of 25 -- 14 [156] Ms QD stated that she was aware of the Applicant’s treatments with ECT, multiple medication regimes, hospitalisations following abusive relationships and relationship breakdowns resulting in suicide attempts. [157] Ms QD stated that she had attended Court with the Applicant as a support person. Ms QD believes that the Applicant was self-medicating to manage mental health issues. [158] Further, although previously at times triggers for the responses of the Applicant were unidentified this was not the case now. [159] Ms QD stated that she observed changes in the applicant. She stated the Applicant is now talking with a large support group, placing a list of daily activities on the fridge, using a reflections journal, and recording information. She believes the Applicant to be much stronger that at previous times in her life. [160] Ms QD stated that she believes that the Applicant is not the same person, is doing well, as she sought assistance, self- placed in programs, and is working at locating resources and tools. [161] Ms QD responded in cross examination that she saw no risk in the Applicant seeking to have a child through IVF. She stated that she was a nurturing person. [162] She stated that now when stressful conversations occurred, that the Applicant displayed no excessive agitation. She believes that the medication regime is working well and that the Applicant adheres to her routine. The Respondent’s Evidence [163] The Respondent submits that the offences are relatively recent having occurred in 2018. On 7 March 2019 there is a reference in hospital records18 to the Applicant taking someone else’s medication as her dose was not “holding her.” She also admitted to having ceased benzodiazepines...up until recently. [164] The Respondent submits that the medical records of 30 April 2020 show the Applicant to remain heavily dependent on suboxone and requiring a “make-up dose.”19 [165] The Respondent also states that the offences, whilst not serious offences, are significant risk factors as they are directly related to the Applicant’s admitted addiction. [166] The Respondent submits at paragraph 38 of the final submissions that it is not appropriate to dismiss the offending on the basis that it is not child related as the legislation permits the Tribunal to consider all offending based on the child’s right to be safe when being cared for. [167] The Respondent states that the Applicant’s offending and drug use shows a lack of judgement and insight in acting as a positive role model for children and young people. 18 X Hospital and Health Service NTP 50. 19 NTP 40 H Hospital Record Telephone Review. -- 14 of 25 -- 15 [168] The Respondent’s submissions state that the Applicant does not display appropriate insight into her personal drug use and the potential for harm to children in the care of a person who is under the influence of drugs. [169] The Respondent submits that the Tribunal must consider the supremacy of the paramount principle when considering if this is an exceptional case. [170] The Respondent states that the Applicant’s conduct indicates a lack of regard for the effect of her actions on others, including family, friends, and partner. [171] The Respondent states that the Applicant was a mature person aged 31 at the time of the offences and should have shown an awareness of the seriousness of her choice to offend in this way. [172] 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. [173] The Respondent expresses concern about the capacity of the Applicant to sustain positive change and improved health and well-being in the longer term. The Respondent states a continuing concern about the long-term success of both her stated desire to remain abstinent and her rehabilitation. [174] The Respondent contends that the medical history of the Applicant evidences unstable mental health leading to impaired decision –making. The Respondent notes that not all the medical records of the Applicant have been considered as she has received treatment at other facilities whose records were not requested. [175] The Respondent states that the role of the respondent is not to impose further punishment upon the Applicant, but 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 BlueCard. [176] The Respondent submits the medical history of the Applicant as including admissions to hospital for overdose and attempted suicide and diagnoses including depression, dysthymia, bipolar affective disorder, borderline personality disorder, dependent personality disorder, and suicidal ideations. [177] The Respondent submits that the Applicant’s medical records indicate that in 2015, 2017 and 2019 her depression did not have an identified trigger. [178] The Respondent describes the symptoms of concern as being emotional dysregulation and difficulty maintaining relationships, many presentations and admissions resulting from relationship difficulties and breakdowns and general life stressors. [179] The Respondent concludes that that the medical history of the Applicant indicates a history of poly-substance abuse from 2013 together with mental health concerns from 2008. [180] The Respondent states that the Applicant, however, considers herself to be “just your normal every-day person who suffers with depression and anxiety” despite a long history of ineffective treatments with various medications and twenty sessions of electroconvulsive therapy (ECT) therapy. -- 15 of 25 -- 16 [181] The Respondent states that there are inconsistencies in the Applicant’s account of events. H hospital record dated 7 March 2019 contain statements by the Applicant; the that she had taken someone else’s medication as her suboxone was not, “holding her” and that she had, ceased taking benzodiazepines recently. [182] In the same hospital record of 7 March 2019, the Applicant admitted cravings for the opioid replacement therapy as the lower doses was ineffective. [183] The Applicant admits to the use of cannabis but denies the use of illicit drugs. [184] The Respondent states their concerns regarding these discrepancies in the reporting of her drug use; both illicit and prescribed. [185] The respondent expresses concern that whilst the management of her mental health through self-medication was occurring that the Applicant appears to have been working as a nurse/carer in the community. [186] The Respondent notes the stated intention of the Applicant to return to this kind of work in community-based nursing and aged care. [187] The Respondent holds concerns about the stability of the Applicant’s mental health and the reliability of her account of her intention and ability to remain abstinent. [188] The Respondent holds concerns about the ability of the Applicant to act protectively towards children because of the history and unreliability of her judgment and assessment of risk. [189] The Applicant was injured in a fall from a horse having chosen not to use a helmet. The Respondent holds concerns about her ability to act protectively towards children in light of this event. [190] This horse-riding incident occurred on 17 September 2019 and required the Applicant to be transported to hospital by ambulance. Her fall and injury was witnessed by family and friends. [191] The Respondent submits that the reports of Ms R and Dr Y do not adequately address the strategies the Applicant has in place to prevent relapse and future offending. [192] 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. [193] The Respondent also submits that the Human Rights Act 2019 (Qld) (“HR Act”) does not apply to these proceedings as the Act applies only to proceedings commenced after the proclamation of the Act. The application for review was filed prior to the commencement of the HR Act. Consideration of the Evidence [194] The Applicant has limited criminal history. The charges arose from circumstances where the Applicant altered a prescription from her doctor to obtain additional medication as she admits she was drug dependent. The offences occurred in April 2018. -- 16 of 25 -- 17 [195] The sentencing Magistrate did not record a conviction but fined the Applicant five hundred dollars with no further conditions. The Applicant admits the actions were done in a moment of despair. [196] The Tribunal notes the existence of the Applicant’s severe mental health concerns over an extended period. The Applicant’s mental health history is significant including self-medication, multiple suicide attempts, rejection of medical advice, non-identifiable triggers for mental health, deteriorating health episodes and apparently treatment- resistant illness. [197] Against this is the fact that the Applicant is currently a voluntary patient on a drug replacement program and is managed in the community. [198] Whilst having a mental illness does not preclude the Applicant from having a BlueCard, the Applicant’s submissions contain numerous remarks about her attitude to drugs and her drug dependence which bear on the finding of an exceptional case. [199] The Applicant states that she was, “not addicted to drugs but to one drug.” 20 The facts indicate concerning behaviour with the use of various drugs. [200] This remark by the Applicant is of concern as it undermines the continuing assertions of the Applicant and witnesses that she is compliant with treatment, actively seeks assistance and displays insight. Dr Y’s report refers to her having, “a high level of insight”. [201] On 7 March 2019, the Applicant describes taking the medication of another person as her prescribed amounts of suboxone, “were not holding her”. In this same hospital record, the Applicant describes that she had only recently ceased taking benzodiazepines. [202] The Tribunal views her conduct in depriving another person of their medication as an indication of her preparedness to do what it takes to satisfy her needs, irrespective of the effect on others. It displays a lack of genuine insight and empathy for others. [203] The Applicant describes her codeine dependence of 20 tablets per day as being “very minor”.21 In this statement she refers to a comment by a psychologist at the F Health Centre as comparing her use to that of other users who take 100 tablets per day. [204] The inference in her comment is that her conduct should be excused because it is not as bad as a person using 100 tablets per day. [205] The Applicant’s reasoning concerns the Tribunal as it shows both a casual disregard for the law, a willingness to minimise her degree of dependence, a lack of insight and a lack of sincerity regarding her expressions of remorse. [206] The Applicant’s statements in this regard are, “out of the ordinary” in the sense that they contain disturbed and flawed reasoning. Maher’s case defines exceptional in terms of the dictionary meaning where exceptional is said to mean, “out of the ordinary”. The Tribunal finds that the Applicant’s interpretation of the opinion expressed to be out of the ordinary.22 20 Submission 1 August 2018. 21 Statement of Evidence 8 April 2020. 22 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. -- 17 of 25 -- 18 [207] When these instances are considered together with the forging a prescription the Tribunal concludes that these are clearly circumstances that are not in the ordinary course of events. These actions go beyond what would be regarded as ordinary responses. [208] 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 includes children. [209] This hospital record of 7 March 2019 evidences inconsistencies in the Applicant’s submissions provided in this Tribunal. The statement by her concerning her recent cessation of the use of benzodiazepines is in contradiction with her submission dated 1 January 2020 that it had been nearly two years, since “relapse”. [210] The Respondent refers to a further inconsistency where the Applicant denies the use of cannabis, then on 29 June 2015, she reported the use of cannabis. Under cross examination in the hearing, the Applicant admitted to the use of cannabis which she said made her a bit paranoid. [211] The use of cannabis is unacceptable when the user has the care of children. As well as being an illegal substance, it is well-documented to have the effect of impairing the judgment and capacity of the individual to provide appropriate care for others. [212] Failure to disclose the use of cannabis by the Applicant reduces the weight which can be given to the medical evidence given by her medical practitioners who are unaware of this. [213] The Tribunal also noted the familiarity and ease with which the Applicant described the efficacy of various drugs that she had used. She stated that the injection was better than the wafers (stated in response to cross examination during the hearing). [214] The Applicant was completely at ease with what she needed to add to her prescription to obtain additional drugs. The Tribunal views this as a bold and somewhat calculated response outside the ordinary course of events. [215] 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. [216] The Applicant indicated, in her oral evidence a rejection of medical advice. She stated that she disagreed with the Doctor’s opinion regarding her treatment. This involved the efficacy for her, of the use of a method of cessation of a drug and the “restarting of that drug”. [217] The Tribunal further noted the Applicant’s response to the question as to why she did not remain at the Emergency Department of the H Hospital following a fall from a horse on 16 September 2019. She stated in evidence that the medication prescribed at the hospital was not sufficient and that this was a factor in her decision to self- discharge. [218] On this occasion, the hospital notes at NTP 36 state that the Applicant was being treated with Seroquel for depression and Suboxone for substance abuse. The Applicant explained in the hearing that as she was receiving Suboxone that no -- 18 of 25 -- 19 further pain relief could be prescribed. She then discharged herself. She stated that her decision was influenced by the absence (in her view) of adequate pain relief. [219] 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. [220] 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.23 [221] The Tribunal accepts that Dr Y’s report was prepared with knowledge of the criminal actions of the Applicant. The Tribunal accepts that Dr Y believed the risk of re-offence was minimal because the Applicant displayed insight and had taken steps to avoid this type of decision in the future. [222] He also considered the preventative strategies and factors of on-going professional and family support as well, future goals for study in the health care field, and stability of relationships. [223] Dr Y states his opinion that the 2018 offences have no impact on children or work with children. In the Tribunal’s view this opinion is superficial. He does not take account of risks associated with a person affected by drugs having the care and protection of children and being a role model for children. This possibility is not outside of the scope of nursing practice. [224] It is conceivable that, as a nurse, the Applicant would have contact with children in her role. This is a reasonable area of inquiry though the Doctor excludes this aspect from his opinion. [225] His opinion does not acknowledge the paramount principle and the transferability of a BlueCard once issued. [226] Dr Y’s view is focussed on the skills the Applicant may bring to the role and her stated dedication to this vocation. Dr Y and Ms ON both regard the Applicant as having the necessary skills and insight required for nursing. [227] Hence the opinion of Ms ON that the Applicant is extremely competent in the nursing role does not outweigh the right of children to be cared for in a safe and protected way. [228] 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. [229] Dr Y states that the help-seeking behaviours of the Applicant are protective, and the Tribunal agrees with this opinion. However, the weight that should be given to this factor should be balanced against historical instances of the Applicants struggle to manage disappointment constructively for herself and her close relationships. 23 Volkers v Commissioner for Children and Young People and Child Guardian [2010] QCAT 243. -- 19 of 25 -- 20 [230] Dr Y does not refer to any earlier medical history but commences his report with her referral to him in January 2019. It is not clear if the Applicant has informed him of her earlier history or what independent medical records he might have accessed. His report is silent as to his views of her case seen against the background of her extensive mental health history. [231] In cross–examination Dr Y states his view that the fact of a patient taking another person's medication is not uncommon. He stated that the use of codeine may have been to relieve psychological pain when asked about the relationship between codeine use and the Applicant’s mental health issues. [232] He stated that he believed she coped okay with external stressors and that she had progressed well, citing the following: her desire to study, her work at a service station, good recovery and engagement, stable relationship, support network Drug- Arm. [233] He stated that he was not aware of any illicit drug use and that he does not hold concerns for her working as a nurse. The Applicant had previously admitted the use of cannabis, but Dr Y was not aware of this issue. [234] He also states that the suboxone program is a treatment for life. He then said that the minimum treatment time is 12 to 24 months and that the best protective factors occur after 12 months. [235] Dr Y stated that he is no longer treating the Applicant but that another doctor, Dr T, reviews the Applicant monthly. [236] In summary, Dr Y stated that protective factors included continued engagement with professionals, that her recovery would be for a period of two to five years and that there was no evidence of lifestyle distress. [237] He stated that she had been open and honest verbally and, in her actions, to remain abstinent, however he was not sure how she might cope with temptations at work. He stated that she has convinced him that she would never do anything to jeopardise her goals for her future. [238] Ms ON had frequent contact with the Applicant as her supervisor in a clinical setting. Her role was not therapeutic. She said that there were strict safety measures in place including audits, reportable practices and practice standards which prevented the misuse of medications by staff in the health-care environment. [239] Ms ON described the Applicant as having ethical and respectful behaviour and being polite, respectful, and patient and willing to compromise. She stated that the rehabilitative approach and recovery model are used in nursing. She stated that the Applicant should be given a chance. [240] Ms ON was asked about how she thought the Applicant might manage temptation in the workplace. She was firm in her conviction that misuse of drugs could never occur due to the drug-handling protocols in place. These included audits, multiple staff attending medication rounds and the presence of cameras in medication storage areas. [241] Ms ON stated that the Applicant would be protected from temptation at work because of the systems in place to prevent it. Ms ON stated that it was impossible for drugs to be sourced for misuse by staff. The Tribunal found this insistence by her to be desirable but possibly implausible. -- 20 of 25 -- 21 [242] Ms ON’s positive endorsement of the Applicant is balanced against her lack of knowledge of the fact of whether the Applicant continues to be treated for substance abuse through the suboxone program. [243] In cross examination, Ms ON stated that it is best to observe how the Applicant goes in placement and that she has undergone rehabilitation to maintain safe practices for herself. She has successfully completed HASS and undergone sessions with substance -abuse counsellors and has strategies in place. [244] Ms R stated that the Applicant now had a stable life situation with supportive partner and family and that she knew how to access supports and had improved resilience. [245] Ms R was unable to comment about the possibility of risks of temptation if the Applicant became a nurse. She stated that she had treated people exposed to temptation in working arrangements. [246] She stated that the protective factors were routine, existence of support network and supports, strengthened relationships, and accessing supports through de-brief processes. [247] Ms R was fully supportive of the arrangements in place to support the Applicant as being adequate. Her evidence was that the Applicant had achieved her goals. [248] Ms R’s relationship is a therapeutic one and so there were limitations on what she was able to share with the Tribunal and so her evidence is given commensurate weight with this. [249] Dr P stated that he was aware that the Applicant had forged a script for codeine, but that on balance he did not think that this was important, as the Applicant wanted to be a nurse and that she was taking responsibility for her actions. [250] Dr P stated that this goal was a strong protective factor. He is aware that the applicant is working at a service station and says this promotes routine and stability. [251] He stated that she is a voluntary patient and is proactive in attending appointments. He stated that she is compliant with the program and that the dose of medication is reducing. [252] Under cross-examination, he stated that he is not aware of any specific strategies she might use to prevent a relapse. [253] Dr P does not hold concerns about the breakdown of the Applicant’s support network. He says the risk factors are minimal as she is not at risk of re-offending as she has support of ATODS, Family and GP, Counsellor and Partner. [254] He was not able to comment on whether relationship issues would be a problem causing a relapse going forward, responding maybe. [255] There is no indication in his evidence that he is aware of the long history of mental illness and misuse of drugs of the Applicant which may have a bearing on his opinion and assessments. [256] Mrs WC has consistently supported her daughter over a long period of time and there is evidence that she regards her daughter as more mature now and to be reciprocating her care and concern. She describes this as doing acts of kindness and showing compassion. No actual examples were provided. -- 21 of 25 -- 22 [257] Mrs WC is a positive and genuine advocate for her daughter. She stated that she believed that should there be a relationship relapse for her daughter that it would ‘not be like anything in the past”. [258] Ms WC believes the changes and increased maturity she can observe are that previously the Applicant, “knew best,” but now she listens and analyses things and thinks of strategies. [259] The Tribunal is of the view that Mrs WC ‘s contact with the Applicant is limited by distance, work and personal obligations as well as limited internet access. [260] Mrs WC is unable to provide information to the Tribunal about the interactions between the Applicant and children as Mrs WC admits she has not spent time with them; being the nephew, aged two, of the Applicant’s partner. [261] The Tribunal concludes that Mrs WC’s knowledge of her daughter’s current personal and mental health status is limited and so the Tribunal weighs them accordingly. [262] Ms QD states that she knew the applicant when she was in a previous relationship which she describes as toxic, abusive but difficult to leave and that she had changed a lot. She believes that the Applicant continues to make progress and growth. [263] Ms QD, the Applicant’s partner, has observed current employment at the service station to be a positive influence on the Applicant. [264] Ms QD does not hold any concerns for the Applicant or in relation to their plan to have a child. [265] Ms QD believed that the Applicant’s medication regime is working well, and that the Applicant is endeavouring to regain control of her life. [266] Against this view are Hospital records dated 7 March 2019 in which the Applicant acknowledges: that she relapsed to the use of benzodiazepines, that she used of someone’s medication and the fact that an increased dose of suboxone was required. [267] She was in the words of the health practitioner, “quite upset about it”,24 namely the fact that the dosage was inadequate, suggesting her on-going dependence. [268] In this same letter the Applicant refers to being under some family stressors which are contributing to her feelings of isolation. She also mentioned her related plans to attempt IVF and to recommence study. There is no elaboration of what the family stressors are or how they are to be addressed. [269] Despite the impression of Ms QD that the Applicant is making progress and growth, the Applicant continues to struggle with management of family stressors, job and study goals and drug- dependence. [270] The Respondent contends that the Applicant does not demonstrate sufficient insight. The Tribunal agrees that at times the reasoning shown by the Applicant is naïve and ill-considered. 24 NTP - 50. -- 22 of 25 -- 23 [271] The Tribunal notes the decision in Re TAA25 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. [272] The Applicant states that she is seeking to renew her BlueCard as it is required for her desired course of study in nursing. However, the effect of issuing the Applicant’s BlueCard 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. [273] There is no power to issue a conditional card and once issued it is fully transferable across all areas of regulated employment and business. [274] The Applicant satisfied the Tribunal that her current goals are genuine and that she is remorseful for her actions which led to her offending. However, despite her positive changes and stated intentions to remain abstinent, she has not yet demonstrated that she can effectively and independently refrain from the conduct which led her to this situation. [275] The Tribunal accepts, and the Applicant admits, that her offending arose from her drug dependency. The Tribunal notes the fact that the Applicant was prepared to engage in a criminal act, to cross this boundary to satisfy her addiction as particularly concerning, as it indicates the strength of this compulsion in her life. [276] In the Tribunal’s view, this would present a risk for any children in her care in view of the recent events of 2019. [277] 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 on review should take a precautionary approach when considering risk. This is the case even when the offending appears not directly related to children. [278] The Tribunal is cautious of concluding that because there has been no further offending that this equates to rehabilitation. The events of March and September of 2019 remain of considerable concern on this point and so are given significant weight by the Tribunal. [279] Section 360 of 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.26 The Tribunal findings and decision [280] The Tribunal finds that the Applicant is not a young person who made a mistake due to youth and inexperience but was aged 31 at the time of the offences. The offending 25 Re TAA [2006] QCST 11, [97]. 26 Working with Children (Risk Management and Screening) Act 2000 (Qld), section 360. -- 23 of 25 -- 24 has a degree of calculation, is unusual, out of the ordinary as opposed to something done on the spur of the moment. There is a time delay between obtaining and presentation of the forged prescription. [281] Other options to solve this issue were available to the Applicant, but she chose to forge a script and go through with the presentation of it. There is considerable desperation behind this choice evidencing planning. [282] The Tribunal finds that the offending though confined to one event is at the centre of a long history of polysubstance abuse which, on that occasion, escalated to criminal activity. [283] The criminal offending does not extend to any other offences in the three years since these offences. [284] The Tribunal is satisfied based upon the evidence and the medical records that the Applicant has a history of poly-substance abuse and mental health concerns from at least 2011. [285] 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. [286] The Applicant continues to receive treatment with Suboxone, the opioid replacement therapy and continues engagement with her general practitioner and other health professionals. Significant supports are still in place and much of her symptomology is unresolved. [287] The Tribunal finds that the Applicant’s evidence about drug use is inconsistent and therefore unreliable in the amount, quantity, and type as well as regarding possible relapses. The Tribunal finds a consistent pattern of minimisation by her of her illness and its impact on her and those around her. Despite this, the Applicant regards herself as being just your normal everyday person who suffers with depression and anxiety. [288] Accordingly, the Tribunal finds that that the drug use and dependence remain a significant challenge for the Applicant. [289] Despite the relatively minor nature of the criminal penalty imposed on the Applicant, the Tribunal finds that the totality of the circumstances raise concerns for the Tribunal should a positive notice be issued. [290] The Tribunal finds no significant evidence, though there is a reference to her nature as a nurturing person and an expressed desire to have a child, concerning the ability of the Applicant to provide a nurturing and protective environment for children generally and so weighs this accordingly. [291] The Tribunal accepts the Respondent’s submissions that the capacity of the Applicant to rehabilitate and remain abstinent is untested, particularly in view of her current dependence on suboxone. [292] The Tribunal finds that the Applicant has not developed sufficient or appropriate insight into the effects on others of her drug-related activity and the decisions which flow from it. -- 24 of 25 -- 25 [293] The Tribunal finds that, although the Applicant engages in help-seeking behaviours she is not fully disclosing information to these practitioners who are working to assist her. [294] The Applicant displays limited empathy for others, engaging in ill-considered risky conduct in front of family and friends. Though acts of kindness and compassion are mentioned, no examples are given. The Tribunal finds that the remorse she expresses is mainly directed to the impact of the criminal offending and its consequences upon herself. [295] The Tribunal refers to the Human Rights Act 2019 (Qld) and the submissions by both parties in this regard and finds that the argument of the Respondent that the HR Act is inapplicable to this case because of section 108 of the HR Act is a compelling one. [296] The Tribunal finds that should the Respondent’s argument fail then, it has given proper consideration in terms of section 58(2) of the HR Act should the Act be found to apply to this decision. Proper consideration is demonstrated by the analysis contained in these reasons and the opportunity for a fair hearing, and in the application of relevant legislation. [297] 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. There is a long and complex history of unresolved mental illness concerns against a background of poly- substance abuse impacting behaviour and leading to criminal offending. These concerns and their impact on the Applicant are unresolved. [298] Despite her stated dedication to her desire to be a nurse, there is minimal evidence supporting a finding that she has made a positive change in her circumstances and lifestyle such that she should receive a positive notice to enable her to achieve this goal at this time. [299] The Tribunal having regard to the paramount principle considers it unsafe to issue a BlueCard, fully transferable in these circumstances and so confirms the decision of the Director-General, Department of Justice and Attorney-General. Order 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. Pursuant to section 66(1) of the Queensland Civil and Administrative Tribunal Act 2009, the publication of (a) the contents of a document or thing filed in or produced to the Tribunal. (b) evidence given before the Tribunal; and (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 . -- 25 of 25 --