ALN v Chief Executive Office, Public Safety Business Agency [2016] QCAT 144

CITATION: ALN v Chief Executive Office, Public Safety Business Agency [2016] QCAT 144 PARTIES: ALN (Applicant) v Chief Executive Officer, Public Safety Business Agency (Respondent) APPLICATION NUMBER: CML246-15 MATTER TYPE: Childrens matters HEARING DATE: 29 March 2016 HEARD AT: Brisbane DECISION OF: Member Rogers DELIVERED ON: 15 April 2016 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive Officer, Public Safety Business Agency, to issue a negative notice to ALN is set aside. 2. The Chief Executive is to issue a positive notice and blue card to ALN. 3. The Tribunal prohibits the publication of the name of the applicant and any other witnesses or documents that might identify the applicant. CATCHWORDS: BLUE CARD – Where negative notice issued – where charge of disqualifying offence – where charge withdrawn - where significant time has elapsed since charge – whether in best interests of children for positive notice to issue – whether exceptional case exists 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 8, s 221 s 226 -- 1 of 8 -- 2 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492 APPEARANCES: APPLICANT: ALN RESPONDENT: Chief Executive Officer, Public Business Safety Agency REPRESENTATIVES: APPLICANT: ALN represented by Ms Steen of counsel instructed by Varro Clarke and Co, solicitors RESPONDENT: Chief Executive Officer, Public Business Safety Agency represented by Ms Hughes, advocate, an officer of the Public Safety Business Agency REASONS FOR DECISION What is the background to the application? [1] ALN is studying to complete a Diploma in Nursing. She wants to become a mental health nurse. Drawing on her own adolescent experience, she wants to help troubled teens understand that ‘no matter how bad or dark life seems with the right help and support it does get better and life is worthwhile’.1 She made an application to the Chief Executive Officer, Public Safety Business Agency for a blue card to participate in her placements. [2] On 7 August 2015, the Chief Executive decided to issue a negative notice. ALN has asked this Tribunal to review that decision. [3] It is the responsibility of the Chief Executive to administer the scheme for screening persons employed in child related employment2 established by the Working with Children (Risk Management and Screening) Act. [4] The Chief Executive’s decision was made after a criminal history check indicated that in June 2008 ALN was charged with one count of rape. The charge was later withdrawn. [5] Rape is a disqualifying offence under the Act. Where a charge for a disqualifying offence is dealt with by other than a conviction the Chief Executive must issue a positive notice ‘unless satisfied it is an exceptional 1 Application of ALN filed 4 September 2015. 2 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 8. -- 2 of 8 -- 3 case in which it would not be in the best interest of children’ for a positive notice to issue.3 [6] When conducting a review this Tribunal is bound by the same legislation as the original decision maker and the review is conducted by way of a fresh hearing on the merits.4 This means I must consider whether an ‘exceptional case’ exists. There is no definition for an exceptional case however the Act does give guidance about those factors to be considered.5 The decision must be made on the circumstances of each the case ‘unhampered by any special meaning or interpretation’.6 [7] The circumstances of this case start with ALN childhood. She is the second of four children and says she had an uneventful and active childhood supported by her parents. When she was twelve she was diagnosed with a serious melanoma requiring surgery. A few weeks later she was sexually abused by a family friend. She disclosed the abuse to her mother and the man was convicted of the offense. [8] As a result of these events ALN says she gave up her active lifestyle, became a hermit and stayed in her room. She was bullied at school and frequently wagged it. She developed severe mental health issues and was admitted to various psychiatric facilities on 21 occasions. She had a significant number of suicide attempts and engaged in self mutilation. [9] ALN was finally admitted to the Barrett Adolescent Centre, a residential mental health facility, at age 17. She was one of the older patients but it appears from her evidence her maturity did not match her chronological age. She was apprehensive and eager to fit in. After three months she was given permission to attend the annual camp at Boonah and shared a room with three younger girls who had formed a bonded friendship before her admission to Barrett. What were the events leading to the charge? [10] While at the camp, after the evening meal, the four girls were in their cabin. They decided to play a game of ‘Truth or Dare’. ALN was dared to kiss one of the other girls, and she admits she did kiss her on the mouth. There is a dispute about what occurred from this point on. [11] After the camp the girl who had been kissed disclosed to her counsellor she had been digitally raped by ALN. She was able to provide a detailed description of the incident. Her statement was supported by the two other girls in the room. Following an investigation and interview with all four girls the police laid the charge of rape. 3 Ibid, s 221. 4 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20. 5 Working with Children (Risk Management and Screening) Act 2000 (Qld), s 226. 6 Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492. -- 3 of 8 -- 4 [12] To consider the details of the charge I was provided with the Police Records of Interview with ALN and a further Record of Interview with one of the witnesses who was a child. I made an order preventing the publication of this document to ALN but she was provided with a synopsis of the evidence. I was not provided with the Record of Interview of the complainant or the second witness. [13] The Chief Executive submitted two witnesses supported the complainant’s version of events and ALN admitted she did kiss the complainant. The charge was withdrawn because it was considered to be contrary to the interests of the complainant for it to proceed, rather than as a result of lack of evidence. [14] ALN gave inconsistent evidence to the police. She later admitted her earlier version were wrong. For example she initially denied kissing the complainant on the mouth. [15] The Chief Executive says when ALN was told serious allegations had been made against her she was asked if she knew what the allegations were. She said she thought they were about rape. This indicates ALN appeared to know a complaint of rape had been made against her even before the allegation was put to her. [16] Further, the Chief Executive points to the disparity in ages and said the behaviour of ALN, as the adult person aged 18, sent mixed messages and demonstrated she was not able to maintain boundaries. [17] The Chief Executive relies on the circumstances of the charge to support a finding that this is an exceptional case. In particular it was submitted the charge of rape is a serious and disqualifying offence and parliament has tipped the balance in favour of children over the individual when deciding to allow a charge, without a conviction, to be considered. This reflects the difficulty in obtaining a conviction. [18] ALN states she is innocent of the offence and was denied an opportunity to prove her innocence by the charges being withdrawn. [19] She says everyone in the facility was there because they had mental health issues. The other girls were part of a group and she was desperate to fit in. She says while she was four years older than the complainant she lacked the mental and emotional maturity of others her age and felt they were all in the same category. These factors led to her participation in the game. [20] She says the complainant had a crush on her and fabricated the story of digital rape, in collusion with her friends, because ALN did not return her affections. This allegation is supported by the report of her psychologist, Ms Portas,7 who asked the Tribunal to consider, The literature on adolescent behaviour which acknowledges that same sex crushes during adolescence are commonplace, and that rejection by 7 Report of Cynthia Portas, clinical psychologist, dated 12 December 2015 page 6. -- 4 of 8 -- 5 the love object can lead to acts of retribution such as efforts to malign the reputation of the desired love object. [21] It is submitted by ALN that the evidence does not support a conclusion the charges were withdrawn solely in the interests of the complainant. It is equally likely they were withdrawn as a result of an assessment of the prospects of obtaining a conviction. [22] In relation to the allegation of prior knowledge, ALN says was warned by one of the girls involved that something serious was happening the day after the game of ‘Truth or Dare’. As a result of her own experience, she immediately thought she had been accused of rape. In her world that was ‘something serious.’ No inference can be drawn from the fact that she had arrived at this conclusion before being advised of the allegation. What are ALN current circumstances? [23] Turning to her present circumstances, ALN says there is now no evidence of risk. She is in a stable relationship with her partner of six years. She has two small children and the support of her extended family and a small circle of friends. When asked what had changed her she said ‘mainly becoming a mum’. She now has a supportive partner and this has ’switched some sought of switch’. [24] After she was charged in 2008 she had a very hard time with anxiety and depression. She worked out she did not start to harm herself until she was 13 and prescribed medication, so she decided she would be better off with out it. By the end of 2008 she decided to deal with her mental health issues with the support of her parents and family, without further medical intervention or medication. She was able to manage this and did not consult with mental health professionals or take medication for several years. [25] ALN did not work outside the home until the end 2014 when she was given a job for 8 weeks by a family friend. In 2015 she started her study. [26] In November 2015 her general practitioner referred her to a psychologist after the refusal of her blue card. [27] Her evidence is supported by Ms Portas, clinical psychologist, who states in her report dated 12 December 2015: There is evidence in ALN achievements over the past five years to support suggestions that she has remained mentally stable and fully functional in her current life situation and has so been for the past five years or more. [28] Following testing, Ms Portas reported ALN falls in the extremely severe range for both anxiety and stress and meets the diagnostic criteria for Post Traumatic Stress Disorder and Obsessive Compulsive Disorder. Ms Portas opines the refusal of her blue card application has been a stressful event leading to an exacerbation of underlying PTSD symptomatology. Her -- 5 of 8 -- 6 treatment plan focused on psycho-education on PTSD and the introduction and development of strategies for the management of stress and anxiety. [29] ALN states her current condition is attributable to her failure to obtain a blue card and she sought professional help when it was needed. She says she cannot afford to continue seeing her psychologist because she has now used up her sessions under Medicare but she would return if it became necessary. She says her anxiety is still severe but she is managing it without medication She described strategies she uses to manage stress such as focussing on her breathing or going for a walk. When she has nightmares she is now prepared to wake her partner to talk about it rather than going outside to avoid waking him. She is now prepared to ask for help. [30] ALN’s sister XXX ALN gave evidence. She is also studying for a Diploma of Nursing. She said that ALN came to live with her when she was about 20. She said she does not know what kicked in but her sister has returned to her bubbly self. She can last remember her like that when she was 11. She testified that ALN is in a stable and loving relationship with strong family support. She believes ALN experiences would be invaluable when working with children with difficulties. [31] The Chief Executive says limited weight should be given to Ms Portas report because she was not available for cross examination. In particular her report does not detail how she expects ALN to deal with stress in the future. It is also of concern that ALN is no longer under the care of Ms Portas even though further treatment is recommended. Further, it is to be expected that nursing will present difficulties for ALN and she is therefore likely to experience stressors in the future. Has an exceptional case been established? [32] ALN must be granted a positive notice unless an ‘exceptional case’ has been established based on the evidence as a whole. This includes the circumstances of the charge and her present situation. Both parties have attempted to identify the protective and risk factors arising from the evidence. These may be summarised as follows: [33] The protective factors are: a) the charge is the sole entry on ALN criminal history. There are no recent or ongoing offences; b) ALN was 18 at the time of the charge; c) evidence her mental health has stabilised; d) she is in a stable long term relationship with two children; e) support of sister and extended family. [34] The risk factors are: a) the nature and seriousness of the charge; -- 6 of 8 -- 7 b) the behaviour reflecting a lack of judgement and ability to maintain boundaries; c) the unreliability of ALN evidence, d) her current mental health; and e) the risk of a further exacerbation of her mental health when exposed to stressors in the future. [35] ALN has been charged but not convicted of a disqualifying offence. She was charged in June 2008, nearly eight years ago. The events that lead to the charges occurred while she was in inpatient in a psychiatric facility for the care of seriously ill juveniles. Therefore the circumstances did involve the care of young people but she was not in a position of responsibility. She was in the facility for her own protection. Any suggestion that her behaviour at that time can help predict her current ability to protect and promote the well being of children fails to acknowledge the seriousness of her condition in 2008 and her stable mental health for the last five years. [36] In addition ALN says she was the victim of collusion between the complainant and her friends. I do not have to make a finding about whether the offence occurred however the explanation offered by ALN is consistent with the know facts. It has not been tested but it is not outside the bounds of what is believable and should be given some weight. [37] I accept ALN gave conflicting evidence to the police at the time of the charge. There is no evidence of further police involvement or anti social behaviour. I have formed the view her conflicting evidence is more likely to be explained by her mental state and the stress she was experiencing than a calculated attempt to deceive which would be of concern when assessing her suitability to work with children. [38] In these circumstances I do not accept the charge, of itself, suggests that it is not in the best interests of children for ALN to be given a positive notice. [39] The only medical evidence available to assess ALN’s mental health is the report of Ms Portas. The concerns raised by the Chief Executive about this report are valid. It would have been preferable for Ms Portas to be available to address those issues not covered in her report. In addition Ms Portas appears to have adopted the role of an advocate for ALN, and this raises question of her independence. However I still found the report to be of assistance. Ms Portas was aware of the Tribunal proceedings and she had read the Statement of Reasons for the refusal. She conducted extensive testing before reaching her conclusions. She addressed the impact of past abuse and was able to assess ALN’s current condition. [40] Mental health issues are common in our community. ALN has demonstrated a willingness to seek professional help when it is appropriate. She has developed insight into her condition and developed strategies to deal with her anxiety. She is well supported by her family and friends who are aware of her condition and history. I have given these protective factors more weight than her past history and current diagnoses. -- 7 of 8 -- 8 [41] For the reasons given, when considering the whole of the evidence, both the circumstances of the charge and ALN mental health history and current condition I am not satisfied an ‘exceptional case’ has been established. It is not sufficient for there to be a hypothetical possibility of future risk behaviour, because that is present in all situations. The evidence must point to a demonstrated likelihood of harm to take this situation out of the ordinary and the evidence in this case does not support that finding. [42] ALN is living with her young children and it is in their interest that they do not become aware of these proceeding until such time their parents decide it is appropriate. I will make a non publication order under the provisions of s 66 of the QCAT Act to prevent them gaining accidental access to this decision through electronic searching as it may endanger their mental health. -- 8 of 8 --