FS v Commission for Children and Young People and Child Guardian [2013] QCAT 29

CITATION: FS v Commission for Children and Young People and Child Guardian [2013] QCAT 29 PARTIES: FS (Applicant) v Commission for Children and Young People and Child Guardian (Respondent) APPLICATION NUMBER: CML199-11 MATTER TYPE: Childrens matters HEARING DATE: 23 April and 8 June 2012 HEARD AT: Brisbane DECISION OF: Shirley Watters, Presiding Member Pam Goodman, Member DELIVERED ON: 7 January 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner for Children and Young People and Child Guardian made 18 October 2011 to issue a negative notice and refuse a blue card application for FS is confirmed. CATCHWORDS: CHILDRENS MATTER – BLUE CARD – where applicant has a criminal history – whether an exceptional case exists APPEARANCES and REPRESENTATION (if any): APPLICANT: FS self represented RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Ms Adele Noble -- 1 of 11 -- 2 REASONS FOR DECISION Background [1] FS had completed radio operator training and was working in a voluntary capacity as a lifeguard. He applied for a blue card to be able to continue as a voluntary radio operator for the Lifesaver‟s organisation. [2] FS seeks a review of the Commissioner for Children and Young People and Child Guardian‟s decision to not issue him with a blue card and instead issue him with a negative notice. FS seeks to be issued with a positive notice and blue card to continue in his voluntary role. [3] The application was heard in Brisbane on 23 April 2012. The hearing was adjourned to 8 June 2012 to hear evidence from Dr Sally Frye. Relevant law [4] The relevant legislation that applies is the Commission for Children and Young People and Child Guardian Act 2000 (CCYPCG Act) as amended and the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). [5] The object of the CCYPCG Act is to promote and protect the rights, interests and wellbeing of children: their welfare and best interests are paramount. Chapter 8 of the CCYPCG Act sets out the provisions relating to employment screening. The paramount consideration for making employment screening decisions under the CCYPCG Act is the protection of children from harm and promotion of their wellbeing. [6] The respondent was notified of the applicant‟s police information which included a conviction for “attempted robbery – actual violence and armed with dangerous / offensive weapon / instrument”. The offence is defined as a “serious offence” pursuant to section 167 (1)(c) and schedule 2 and 3 of the CCYPCG Act. [7] Section 225(1)(c) of the CCYPCG Act relevantly prescribes that the Commissioner, and upon review the Tribunal, must issue a negative notice when a person has been convicted of a serious offence, unless satisfied as provided in section 225(2) that the applicant‟s case is an exceptional case in which it would not harm the best interests of children for a positive notice to be issued. The Commissioner was not satisfied that the applicant‟s case was an „exceptional case‟. [8] The CCYPCG Act does not define the term „exceptional case‟. It is well established that determining whether an exceptional case exists is a matter of discretion having regard to the merits of the individual case. When reviewing the Commissioner‟s decision, the Tribunal must have regard to the factors set out in section 226 of the CCYPCG Act. Section 226 is not an exhaustive list of the matters that may be taken into account. Other -- 2 of 11 -- 3 factors may be relevant to determining whether a case is an exceptional case. [9] At the Tribunal‟s request the parties were requested to provide submissions addressing the question of the appropriate test to be applied in determining what constitutes an „exceptional case‟ taking into consideration the Appeal Tribunal‟s decision Commissioner for Children and Young People and Child Guardian v FGC [2011] QCATA 291. The Commissioner provided a written submission dated 5 June 2012. The evidence Criminal history [10] The particulars of the Applicant‟s criminal offending are summarised in paragraph 2.1 of the Respondent‟s Reasons document. FS has criminal convictions spanning from 1998 to 2007. The applicant has been convicted for unauthorised dealing with shop goods; possession of dangerous drugs; breach of fine option order and commit public nuisance. The applicant was charged with a number of offences which arose from a single incident on 18 August 2000: going armed so as to cause fear (4 charges); threatening violence by words or conduct; common assault; attempted robbery-actual violence-armed with dangerous/offensive weapon/instrument; possession of a knife in public place; obstructing police officer. [11] The outcome of the charges arising from the incident on 18 August 2000 are summarised in the Respondent‟s Reasons document at paragraph 2.2.7 as: Common assault and going armed so as to cause fear x 1 – withdrawn and dismissed. Attempted robbery-actual violence-armed with dangerous/offensive weapon/instrument; going armed so as to cause fear x3; threatening violence by words or conduct – on all charges conviction recorded, imprisonment 9 months, to be served by way of an intensive correction order. Possession of a knife in public place; obstructing police officer – convicted and sentenced to 9 month probation order. [12] The offence of attempted robbery with actual violence, armed with dangerous/offensive weapon/instrument for which the applicant was convicted is categorised as a serious offence in accordance with the CCYPCG Act. Applicant’s evidence -- 3 of 11 -- 4 [13] FS claimed that the offences committed on 18 August 2000, leading to his conviction for an offence categorised as a serious offence under the CCYPCG Act, were triggered by amphetamine and cannabis use resulting in an episode of drug induced psychosis. [14] FS told Dr Sally Frye, a psychologist engaged by FS to undertake a mental health assessment of his suitability for child related employment, that around the time of the serious offence, he was smoking 6 to 9 pipes of cannabis per day and was using amphetamines and prescription dexamphetamine. [15] FS claimed to have changed his life following his conviction in 2001. He gave evidence that he no longer used illicit drugs, alcohol or tobacco; he has completed a rehabilitation program and had sought medical assistance for his psychotic symptoms. FS claimed that the circumstances leading to his offending in August 2000 were a result of severe stress, were out of character and were „beyond the circumstances of his current life‟. [16] FS claimed that he experienced significant stress at the time of his offending due to the pressure of adapting to a new living environment, having moved from his home town of Toowoomba to the Sunshine Coast. In his submissions to the Tribunal he said that he was also experiencing pressure from his peer group. A further „stressor‟ identified by FS was the prescribed medication he was taking for a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) which „only made things worse‟. [17] Clinical Psychologist Dr Sally Frye completed an assessment of FS‟s mental health status leading to the serious offence committed on 18 August 2000 and his current mental health functioning. Dr Frye interviewed FS on 7 Match 2012, 21 March 2012 and in July 2012. Dr Frye‟s report of 16 March 2012 describes FS as experiencing a difficult childhood and early adulthood including parental separation when he was 10 years old; learning difficulties and bullying at school; relocation of his mother leading to him residing independently by 18 years of age at which time his use of alcohol and illicit drugs increased, leading to loss of his job and a period of homelessness. [18] In her initial report Dr Frye understood that FS had only experienced one psychotic episode during his life. She concluded that this psychotic episode, which led to the offences of 18 August 2000, was most likely due to a drug induced psychotic disorder. Dr Frye‟s March 2012 assessment of FS was that his mental health was sound and within the normal range. Elevations in responses on the Millon Clinical Multiaxial Inventory (MCMI 111, which identifies diagnostic criteria for affective, personality, psychotic and somatisation disorders) on the Desirability, Narcissistic and Drug Dependency Scales were assessed by Dr Frye as consistent with a client with a history of drug dependence as acknowledged by FS. [19] During questioning by the Tribunal it was identified that Dr Frye was not informed by FS that he had two psychotic periods in 2005 and 2006 during -- 4 of 11 -- 5 which he was an inpatient in a mental health facility. The Tribunal provided Ms Frye with documentation from Queensland Health Sunshine Coast Health Service District produced under order of the Tribunal which documents the incidents in 2005 and 2006 where FS was being treated by mental health services including one period where he was under an involuntary treatment order. Dr Frye was provided with this material by the Tribunal at the hearing on 23 April 2012. Dr Frye requested that she be given time to examine the material in detail. The hearing was adjourned to 8 June 2012 to take further evidence from Dr Frye and final submissions from the parties. [20] At the adjourned hearing, Dr Frye confirmed that she had received the Queensland Health Sunshine Coast Health Service District material from the Tribunal. In the interim period she had also interviewed FS for a third time and had conducted a telephone interview with FS‟s mother, FJ. Dr Frye stood by her initial diagnosis that FS was currently of sound mental health and her professional assessment that his past mental health instability can be regarded as exceptional to his current sound functioning. Dr Frye expressed the opinion that the Sunshine Coast Health Service District documents identified two transient psychotic episodes, one leading to a one week involuntary admission and the other to two days of voluntary treatment. These incidents and a diagnosis of paranoid schizophrenia were not inconsistent, in Dr Frye‟s view, following episodes of drug induced psychoses. [21] Despite FS having experienced three documented psychotic incidents requiring treatment or intervention, Dr Frye identified the following as supporting her assessment of FS‟s current and likely future mental health stability and her view that FS is a person who has experienced transient psychotic episodes: a) duration of time since the last psychotic incident, 6 years, is significant; b) triggering factor of illicit drug use is no longer present; c) FS‟s ability to self-manage his stressors and symptoms, he is high functioning compared to people with similar history; d) there has been no similar incident involving harm to others since 2000. [22] Dr Frye interviewed FS‟s mother, FJ, by telephone about FS‟s mental health incidents in 2005 and 2006 and her views about his current mental health functioning. FJ accompanied FS when he voluntarily sought assistance for his mental health symptoms in 2005 and 2006 at FJ‟s recommendation. FJ believes that FS is no longer using illicit drugs, is trying to turn his life around, is more in charge of himself, better able to express himself and takes responsibility for his actions and has been doing well since ceasing prescription medication. FJ expressed the view that FS -- 5 of 11 -- 6 had always been safe around children including his son and his two year old nephew with whom he is regularly in contact. [23] FS‟s father FR gave evidence that he had witnessed FS‟s mental health improve significantly in the past three years. He put this down to FS progressively ceasing his illicit drug use and also ceasing prescription medication in 2008. He doesn‟t accept that FS suffers from schizophrenia and expressed the view that FS‟s mental health difficulties had been brought on by long term prescription drug use for ADHD since FS was 5 years old, adult illicit drug use and adult prescription medication for mental health symptoms. FR informed the Tribunal that the issue of FS and his younger brother being prescribed medication for hyperactivity from a young age contributed to his marriage breakup with FS‟s mother. [24] RY provided a character reference for FS. She is the mother of FS‟s ex- partner and maternal grandmother of his eight year old son. She gave evidence that she was aware of FS and her daughter‟s illicit drug use and did not approve of it or their relationship. In the past 5-7 years she has witnessed FS „clean his life up‟ and she believes he no longer uses illicit drugs, lives a „clean lifestyle‟ and is „calm and relaxed‟. RY described FS as demonstrating „schizophrenia like‟ symptoms when he was engaging in substance abuse. RY described her current relationship with FS as „pretty close‟. FS maintains regular contact with his son and „pops in‟ to her home on occasions for coffee. [25] Radio Officer and Patrol Captain, MN trains and supervises radio operators for a Surf Life Saving Club. MN supervised FS‟s training and a subsequent 30 hours of post training experience. He described FS as cool headed and calm even on his solo shift on Australia Day, a high demand day that can „test‟ new radio operators. MN was advised by FS that the Commissioner‟s concerns related to drug taking and criminal behaviour involving a knife. MN told the Tribunal that he would take FS back as a radio operator if he was given a blue card. MN, a Vietnam war veteran, considered FS‟s past offending as that of a 20 year old young man who had a troubled upbringing and who had „gone off the rails‟. Commissioner’s submissions [26] The Commissioner relied on its Reasons document and submission of 5 June 2012. The Commissioner‟s representative pointed to the applicant‟s record of offending behaviour spanning from 1998 to 2007. Of most concern to the Commissioner are the matters which occurred on 18 August 2000. The applicant was convicted and sentenced to 9 months in prison to be served as an intensive correctional order for six of the offences occurring on this date. On two further convictions from the matters which occurred on 18 August 2000, the applicant was placed on a probation order for 9 months. One of the offences from this date, that of attempted robbery with actual violence, armed with dangerous/offensive weapon/instrument is categorised as a serious offence in accordance with the CCYPCG Act. The Commissioner‟s Reasons also raise concern about -- 6 of 11 -- 7 other violent offences committed on 18 August 2000 that are not classified as serious offences under the CCYPCG Act, as „the violent nature of much of the applicant‟s offending behaviour raises concerns in relation to the applicant‟s eligibility to engage in regulated employment‟. [27] In evidence the Commissioner‟s representative raised the concern that the applicant committed further offences after completing rehabilitation, continued to use drugs for a further 5 to 6 years and experienced two mental health relapses resulting in periods of hospitalisation. The Commissioner‟s representative argued that this behaviour would indicate that the applicant‟s rehabilitation and rehabilitation strategies have not been successful. [28] The Commissioner‟s representative argued that while the applicant has expressed remorse and empathy for the victims of his violent behaviour on 18 August 2000, he has not demonstrated active steps to mitigate future risk of reoffending and protection of the community. [29] The Commissioner‟s Reasons acknowledge that in the applicant‟s favour the offences of concern to the Commissioner were committed 11 years previous and the applicant has not committed offences of a like nature since that time. The Commissioner argues that the passage of time since offending does not in itself demonstrate an exceptional case. [30] The Commissioner made written submissions about the appropriate test of this matter being an „exceptional case’. The Commissioner submitted that the legislature, in adopting the test of „exceptional case‟ intended for the decisions regarding a person‟s eligibility to work with children to be determined by assessing the totality of the information and evidence before the Tribunal, having regard to a child‟s entitlement to be cared for in a way that protects them from harm and promotes their well-being as the paramount consideration. The legislation prescribes a presumptive position of a negative notice being issued in this matter which may be displaced by the establishment of an „exceptional case‟. The Commissioner submitted that an „exceptional case‟ is one of real difference from the general run of cases where it can be demonstrated that the case is „unusual, special, out of the ordinary course‟. [31] The Commissioner submitted that the „unacceptable risk‟ test prescribed in Re OAA and adopted by the Tribunal in decisions since that time is not supported by the legislation and has been overturned by a recent Appeal Tribunal decision.1 The Commissioner further argued that a finding of the absence of an „unacceptable risk‟ of harm to children does not displace the presumption for a negative notice. [32] The Commissioner was not satisfied that the applicant had demonstrated an exceptional case. In particular, the Commission placed weight on FS‟s 1 CCYPCG v FGC (2011) QCATA 291. -- 7 of 11 -- 8 history of drug use, unstable mental health history, lack of insight into his condition and risk of relapse. In particular the Commissioner identified: a) The applicant‟s lack of acceptance of his mental health diagnosis of paranoid schizophrenia. b) In evidence, the applicant was not able to clearly articulate the strategies he uses to manage stressors on a daily and long term basis. Previous stressors of family and peer relationships and job stress are likely to recur yet the applicant cannot demonstrate how he has implemented an ongoing protective and support strategy when these stressors arise. c) The applicant has not engaged in ongoing mental health treatment and a management plan with a properly qualified psychologist or psychiatrist and does not have an ongoing or regular relationship with a mental health practitioner. d) The applicant has ceased medication for his mental health condition without the supervision or recommendation of a qualified doctor or psychiatrist. e) The applicant demonstrates a lack of insight into his offending, the triggers to his offending and the links between his mental health condition and his past offending behaviour. f) The applicant‟s psychological assessment and report by Dr Frye was missing significant information on which to base her assessment. Discussion of the evidence and findings [33] FS has a conviction for a serious offence as defined in the CCYPCG Act and the Tribunal must determine if his is an exceptional case in which it would not harm the best interests of children if he were to be issued with a positive notice and blue card. [34] The Tribunal agrees that the decision under the CCYPCG Act gives the Tribunal discretion to determine whether an exceptional case exists or not. As well as FS‟s criminal history, the Tribunal must consider all other factors to determine if his is an exceptional case having regard for the particular circumstances of this case and the legislative intent of the CCYPCG Act. [35] The Tribunal is satisfied that while FS‟s criminal history spans a period of more than 10 years, offences involving violent behaviour towards others are isolated to the matters that occurred „during a 15 minute period‟ on 18 August 2000. The Tribunal accepts that no further similar criminal matters involving violent behaviour have occurred for the past 12 years and that this is in the applicant‟s favour. -- 8 of 11 -- 9 [36] In relation to offences that FS has been charged with or convicted of, the Tribunal, like the Commissioner, must consider the factors in section 226(2) of the CCYPCG Act. At the time of her decision, the Commissioner did not have available to her evidence of the applicant undertaking any drug rehabilitation programs or any evidence of him having addressed the triggers that led to his violent offending. The Commissioner also did not have available to her a report from a registered health practitioner about the applicant‟s mental health. The Tribunal is satisfied that in making its decision it has considered all of the factors required in section 226(2) of the CCYPCG Act and taken steps to ensure, so far as practicable, that all relevant material was disclosed to the Tribunal to enable it to decide the proceeding with all the relevant facts as required by section 28 of the QCAT Act. [37] The Tribunal accepts the evidence from the applicant‟s submissions and the transcript of proceedings of indictment and sentencing in the District Court that the series of offences that occurred on 18 August 2000 were triggered in significant part by FS‟s use of prescription and illicit drugs including marijuana, amphetamines and dexamphetamine. Dr Frye‟s retrospective assessment that FS experienced a drug induced psychotic disorder during the events of 18 August 2000 is accepted as consistent with the other evidence before the Tribunal. [38] Based on the evidence presented, the Tribunal identified some potential risk factors and some potential protective factors of future serious incidents involving harm to others following the example endorsed in Commission for Children Young People and Child Guardian v Maher and Anor2. Potential protective factors identified [39] FS has only one criminal offence involving violent behaviour which occurred on 18 August 2000. FS pleaded guilty to these offences. [40] There is a significant passage of time of twelve years since this incident and no evidence of similar violent episodes involving the applicant. [41] FS has undertaken two drug and alcohol rehabilitation programs following this violent offence. The report of his participation in the Drug Offender Intervention and Treatment Program at Arthur Gorrie Correctional Centre from 9 October to 26 October 2000 indicates a high level of attendance and participation in the program and forward plans initiated by FS for ongoing treatment in a residential program at Logan House post release from custody. His Honour Judge Hoath on sentencing FS on 29 March 2001, noted FS‟s completion of a 10 week program at Logan House as „encouraging‟ and „a small step in what can be considered a long trek back to rehabilitation‟. 2 (2004) QCA 492; see also discussion in CCYPCG v Lister (No 2) (2011) QCATA 87, (13). -- 9 of 11 -- 10 [42] FS has demonstrated insight into the role of his use of drugs in contributing to past psychotic episodes and violent behaviour and has provided evidence that he has taken significant steps to positively change his lifestyle and use of illicit drugs. The Tribunal accepts that the applicant is making genuine attempts and making progress towards maintaining a healthy and stable lifestyle through focusing on gaining employment, maintaining a fitness regime and contributing voluntarily to community activities such as Surf Lifesaving. [43] FS has maintained open and supportive relationships with family members who are aware of his drug taking, offending and mental health issues and who provided evidence of significant positive progress and increasing lifestyle and mental health stability in recent years. [44] The evidence is that the last psychotic incident requiring professional mental health intervention was six years ago. This evidence supports the applicant‟s claims of positive lifestyle changes and cessation of all illicit drug taking behaviour. The applicant‟s evidence and the mental health records indicate that FS sought the support and assistance of his mother and mental health professionals to assist him to manage his mental health instability in 2005 and 2006. Neither of these mental health episodes is associated with criminal offending. Potential risk factors identified [45] Despite undertaking rehabilitation programs in 2000 and 2001, FS by his own evidence continued to use illicit drugs for a further 5 to 6 years indicating that the rehabilitation programs he had completed were not fully effective. FS has not undertaken any further drug and alcohol rehabilitation programs, claiming that he has been abstinent for six years due to self- rehabilitation strategies such as maintaining a regular exercise regime. FS did not provide any independent evidence to the Tribunal such as urinalysis reports to support his claims of abstinence from illicit drug use. The Tribunal is satisfied that FS was made aware of the potential benefit of providing independent evidence of this kind. [46] The evidence provided by Dr Frye is that the 3 psychotic episodes experienced by FS in 2000, 2005 and 2006 can all be considered to be transient psychotic episodes associated with drug induced psychoses that are exceptional to FS‟s current functioning. Dr Frye considers the diagnosis of paranoid schizophrenia in 2005 by Nambour Hospital to not be inconsistent with her views that FS was experiencing drug induced psychosis. Dr Frye pointed to the duration of time since FS‟s last psychotic episode, the absence of the triggering factor of illicit drug use and the increasing ability of FS to self-manage life stressors as assurance of his current and likely future stable mental health. [47] The Tribunal is not convinced by Dr Frye‟s evidence that FS‟s mental health is now stable and that he is able to self-manage stressors that might lead to future psychotic incidents and risk of violent behaviour. In -- 10 of 11 -- 11 particular, the Tribunal is concerned that since 2006 FS has self-managed his mental health including the decision to cease all prescription drug treatment for his mental health condition without the supervision of an appropriately qualified mental health practitioner. FS does not have an ongoing therapeutic relationship with a trusted mental health professional to assist him to manage future stresses and avoid mental health instability. This includes Dr Frye whom he engaged only for the purposes of preparing a report for the Tribunal. Conclusion [48] The Tribunal is not satisfied that FS has put in place long term strategies to manage his mental health condition that would significantly reduce the risk of relapse and maintain his mental health stability. On the balance of probabilities, the Tribunal is not satisfied that the evidence supports a finding that protective factors outweigh the risk factors at this time and this is an exceptional case in which it would not harm the best interests of children to issue a positive notice. [49] The decision of the Commissioner for Children and Young People and Child Guardian made 18 October 2011 to issue a negative notice and refuse a blue card application for Mr FS is confirmed. -- 11 of 11 --