DLB v Commission for Children and Young People and Child Guardian [2012] QCAT 403

CITATION: DLB v Commission for Children and Young People and Child Guardian [2012] QCAT 403 PARTIES: DLB v Commission for Children and Young People and Child Guardian APPLICATION NUMBER: CML039-11 MATTER TYPE: Childrens matters HEARING DATE: 4 June 2012 HEARD AT: Brisbane DECISION OF: Ron Joachim, Presiding Member Margaret McLennan, Member DELIVERED ON: 23 July 2012 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Commissioner to issue DLB with a negative notice is set aside. 2. The Commissioner is to issue a positive notice to DLB. 3. The Tribunal prohibits the publication of the name of the applicant and specific details of all legal proceedings that could assist in identifying the applicant. CATCHWORDS: Childrens Matters – Blue Card – Review of decision of Commission for Children, Young People and Child Guardian to issue a negative notice – whether protective factors outweigh risk factors – where applicant previously deregistered as a medical practitioner – whether applicant represents a risk of harm to children – whether case is exceptional – whether non publication order should be made – whether evidence from treating health professionals about recidivism should be accepted Child Protection Act 1999, s 9 Commission for Children, Young People and Child Guardian Act 1999, ss 6, 155, 221, 226 Queensland Civil and Administrative Tribunal Act 2009, ss 19, 24, 66 -- 1 of 20 -- 2 Anon 2 v XYZ [2008] VSC 466 Scott v Scott [1913] AC 417 BA v Commission for Children and Young People and Child Guardian [2012] QCAT 100 Commission for Children and Young People and Child Guardian v FGC [2011] QCATA Commission for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87 Commission for Children and Young People and Child Guardian v Lister (No 3) [2011] QCATA 88 Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492 Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria and Anor [1999] 1 VR 267 Herald & Weekly Times Ltd v Williams (2003) 201 ALR 489 Herald & Weekly Times Ltd & Magistrates Court of Victoria & Ors [1999] 2 VR 672 J v L & A Services Pty Ltd (No.2) [1995] 2 Qd R 10 John Fairfax & Sons Ltd v Police Tribunal of NSW and Anor (1986) 5 NSW LR 465 Kent v Wilson [2008] VSC 98 Mr Scott Alexander Volkers v Commission for Children and Young People and Child Guardian CSR 135-09 Re TAA [2006] QCST 11 APPEARANCES and REPRESENTATION: APPLICANT: DLB represented by Mr Tim Rickard RESPONDENT: Commissioner for Children and Young People and Child Guardian represented by Mr Craig Capper REASONS FOR DECISION Background [1] DLB is the applicant in these proceedings. DLB had been registered as a medical practitioner in another state. In late 1992 he was charged with sexual offences against female patients. He was found not guilty. He was suspended from practising medicine for 9 months but, after an appeal, later removed from the register of medical practitioners. [2] Several years later, he was subsequently found to be a fit and proper person to practise subject to a range of conditions. He is now again -- 2 of 20 -- 3 registered as a medical practitioner. He does not need a blue card to work as a doctor. [3] He was issued with a negative notice under the Commission for Children and Young People and Child Guardian Act 2000 (the CCYPCG Act) by letter dated 16 February 2011 following an application for a blue card received in January 2010. [4] He seeks a review of this decision and applied to the Tribunal on 11 March 2011. [5] The application was heard in Brisbane on 4 and 5 June 2012, following a series of procedural matters. [6] DLB wishes to have a blue card so he can complete studies in pharmacy. The relevant law [7] The CCYPCG Act gives the Queensland Civil and Administrative Tribunal (the Tribunal) jurisdiction to conduct a review of the Commission’s decision. Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (the QCAT Act) outlines the options available to the Tribunal. These options are that the Tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate. [8] The operation of the Tribunal is governed by the QCAT Act and the Tribunal’s decision making is bound by the CCYPCG Act. Section 19 of the QCAT Act provides: 19 Exercising review jurisdiction generally In exercising its review jurisdiction, the tribunal— (a) must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and (b) may perform the functions conferred on the tribunal by this Act or the enabling Act under which the reviewable decision being reviewed was made; and (c) has all the functions of the decision-maker for the reviewable decision being reviewed. [9] DLB does not have any convictions for an offence but does have charges for a serious offence under the CCYPCG Act. As a result the Commissioner must issue a positive notice. However, if the Commissioner is satisfied it is an exceptional case in which it would not be in the best interests of children for the Commissioner to issue a positive notice, the Commissioner must issue a negative notice to the person. It is this that the Tribunal must consider. -- 3 of 20 -- 4 [10] Section 226 of the CCYPCG Act outlines the various factors that the Tribunal must take into account in deciding if DLB’s is an exceptional case. These factors include the nature of the offence and charge, when it occurred, its relevance to child related employment and any court imposed penalty. [11] The CCYPCG Act does not define an exceptional case. However it is now well established that the individual circumstances pertaining to the case must be considered to determine whether the facts of a particular matter constitute an exceptional case.1 [12] The focus of the CCYPCG Act is the protection of children. It is intended to protect children from harm from persons working or volunteering in child related areas. Harm is defined in this Act to have the same meaning given in section 9 of the Child Protection Act 1999. [13] The Act in section 6 outlines principles for administering the CCYPCG Act. It is to be administered under the principle that the welfare and best interests of a child are paramount. It is this that the Tribunal must apply. Section 155 further provides that: “the paramount consideration in making a decision relating to employment screening is a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing.” THE EVIDENCE [14] The undisputed relevant facts: a. Patients JT, NM, LW complained about the applicant’s conduct whilst he was practicing as a general practitioner in another state. b. All 3 complainants alleged inappropriate touching. c. The applicant was charged with indecent assault and sexual assault. He was subsequently found not guilty of sexual intercourse without consent and not guilty of indecent assault. d. He was suspended from practising for several months. e. Following an appeal the Court ordered the applicant’s name be removed from the Register of medical practitioners. f. The applicant subsequently applied for re-registration. He was unsuccessful. g. The applicant subsequently applied for reinstatement some years later and was unsuccessful. h. The applicant again reapplied some years later and was found to be suitable to practice medicine again subject to conditions. What was of concern to the tribunals/court 1 Kent v Wilson [2000] VSC 98. -- 4 of 20 -- 5 [15] The various matters of concern about the applicant expressed by the tribunals and the court which ruled on the applicant’s fitness to practice medicine are summarised below. a. The applicant’s desire for some form of sexual gratification. b. The sexual innuendo associated with the examinations of the women. c. There was no apology given and no awareness of impropriety shown. d. The applicant was less than frank and reluctant to give direct answers. e. Nothing to suggest DLB had become a changed person in the 4½ years since the last incident. f. No admission of guilt or expression of contrition. g. Lack of insight into his behaviours. h. Slow but significant progress towards rehabilitation. i. Consistent denial of any wrongdoing. j. Acceptance of adverse findings was not of any significance. k. Doesn’t accept applicant was honest. l. Inconsistency between acknowledging that the allegations were there and asserting that his conduct was in some way justified or misinterpreted. [16] This analysis shows that the issues of concerns to the tribunals and court dealing with the applicant’s attempts to be registered can be summarised as follows: a. A lack of insight into the effects of his inappropriate sexual behaviours with female patients. b. A lack of acceptance that he did anything wrong. c. Giving untruthful and less than frank answers to questions. d. A lack of remorse for the victims. e. Minimising of his actions. Other evidence [17] Dr Jonathan Phillips, psychiatrist, provided a written report to the Tribunal and gave oral evidence by telephone. His evidence can be summarised as follows: a. He has been treating the applicant since the early 1990s. b. He hasn’t seen DLB professionally since August 2011. c. The purpose of his consultation was in relation to his conduct and mental state and to work with him to understand his behaviour. d. DLB has gained significant insight into his actions and its impact on his patients although it came slowly and painfully. -- 5 of 20 -- 6 e. In the past DLB has lacked an understanding of boundaries but now has a considerably better understanding. f. DLB now appears to be contrite. g. DLB has never had a sexual interest in children and this will never be a problem in the future. [18] Dr De Saxe is a psychiatrist who has had over 150 consultations with DLB since 2006. [19] He asserts that DLB has demonstrated a growing level of insight over the years which has rendered him more capable of understanding the impact of his behaviours on others. [20] He advised the Tribunal that he has no concerns relating to DLB being a danger to children and moreover is confident DLB will not reoffend. [21] He advised that one can’t draw any conclusions regarding a risk to children because of his behaviours with the women. [22] Referring to the conditions imposed for re-registration, Dr De Saxe further advised that it would be helpful to DLB to continue therapy as resuming medical practice will be a big change with new stressors. [23] He opined that the conditions were not a prognosis that he will have a relapse in the future. [24] Dr De Saxe stated that DLB has been more open to understanding his behaviour over the past 3 years and that he had a significantly higher level of insight into his behaviours and thoughtfulness on how he dealt with women. [25] Dr Barling is a clinical and forensic psychologist who commenced consultations with DLB in November 2009. He has seen him 35 times. The main purpose of the consultations was to assist with depression fuelled by his rejection for re-registration. [26] In a report to the Medical Tribunal Dr Barling noted that DLB scored at very low risk of reoffending on the Sexual Offender Appraisal Guide. He noted that DLB had never offended against children. [27] In this report and in oral evidence Dr Barling advised: a. DLB has shown increased insight over 2 to 3 years into his inappropriate sexual behaviours, victim empathy and boundaries. b. The traits of obsessiveness, impulsiveness and lack of empathy are still present but to a lesser degree. c. His increased awareness of boundary and communication issues is manifested by his strategies not to do intimate examinations without a chaperone, explaining what he proposes to do, and an awareness of his obsessiveness. -- 6 of 20 -- 7 [28] DLB gave evidence to the Tribunal as follows: a. He may wish to resume pharmacy studies. b. He understands he did wrong and he is sorry for what he did. c. He has been concerned for some time about the impact of his actions on others in particular the women, his family and a blemish on the profession. d. He believes with certainty he will never reoffend. e. He has had a great battle to come to where he is at now and he has worked very hard genuinely. f. He now has insight and accepts his responsibility for what he did. g. He is not lying to this Tribunal or the Medical Tribunal. h. He has treated children many times and there has been no issues raised about this. i. He has never been accused of any abuse of children. j. He saw his former patients at a Medical Tribunal and understood how disturbed and upset they were and understood that he had overstepped his boundaries as a medical practitioner and that his conduct was inappropriate. k. Dr De Saxe had opened the door to look at himself more objectively and he has an understanding of the inappropriateness of his behaviour in respect of all complainants. l. He agrees with the findings of the Tribunal in relation to his patients, although he did not agree with some findings in their entirety. m. He accepted he was responsible for his actions in relation to all four patients. n. He accepts that he had not taken 100% responsibility in the past. [29] In relation to the impact on the women, DLB advised that it was likely that their trust with doctors would have been affected because he did not live up to expectations. He also suggested that the women’s relationship with male figures could have been affected, that the women could have suffered psychological harm and that the women were sufficiently disturbed that an investigation was required. [30] In relation to his strategies for dealing with some of his personality traits, he advised the following: a. In order to deal with his impulsiveness, he will never put himself or a patient in a vulnerable position again. b. He will have a chaperone for all intimate examinations in all situations therefore avoiding any future risk of impulsiveness. [31] In relation to emotional regulation he advised that he is in a steady relationship with a caring, passionate person and recognises that he has a -- 7 of 20 -- 8 need to remain calm and objective with a professional detachment and a formality in medical consultations. He indicated he is not going to be working long hours. [32] In relation to his obsessive traits he commented that it was a two edge sword. He accepted he could be confronting but noted there was a need to obtain informed consent. He also advised that positive aspect of his obsessiveness was that he left no stone unturned in seeking a diagnosis. In relation to boundary issues he advised that he would maintain a formality of tone respecting his own and the patient’s time and privacy. [33] He believes he has genuine empathy. He accepted he demonstrated some self centeredness in his efforts to obtain his re-registration. [34] He further advised the Tribunal that he has done research on boundary issues and has visited the Medical Board’s website in relation to this issue. He considered that the conditions placed on his re-registration were expected because the length of time he has been out of practice and that the Tribunal wanted to assist him back into practice. He considered the conditions were sensible conditions. [35] Ms S is DLB’s partner. She advised the Tribunal that she and DLB live as a couple. She has been a school teacher and a children’s advocate for 22 years. She further advised as follows: a. She is aware of why he was de registered. b. She considered DLB is no risk to children. c. She has seen him interacting with children with adults present. d. DLB has expressed his contrition to her many times and has worked very hard with his psychiatrist to gain insight. [36] LR is a personal friend who is co head senior social worker at a child protection unit at a childrens’ hospital. She advised the Tribunal that nothing would make her worry about the applicant being left alone with children in a position of trust. [37] She advised that whilst DLB was working as a general practitioner he sought her advice on child protection issues. [38] She has observed him interacting quite appropriately with children. [39] She further advised that DLB has talked to her about how he accepts responsibility for what he did and has come to a greater understanding of his behaviour and its impact on others. [40] Ms AM is DLB’s former partner of 3 years. She had her 3 young children living with her when she lived with DLB. She advised that he behaved in a perfectly acceptable way and there was a strong relationship of trust between the children and DLB. -- 8 of 20 -- 9 [41] She advised that DLB had a different view from the Medical Tribunal and had difficulty accepting he was wrong. She considered he now knows it was wrong and why. [42] LR is a dentist and friend of DLB. Like the other lay witness he had no concerns about DLB being with children, having spent trips away with DLB when LR’s children were present. [43] He likewise considered that DLB has now accepted that he had done wrong and had come to terms with crossing boundaries. The applicant’s submissions [44] Mr Rickard, on behalf of the applicant, submitted that the Tribunal needed to decide the review by way of a fresh hearing on the merits and the real issue to be considered by the Tribunal is whether there are exceptional circumstances that would preclude the provision of a negative notice. He further submitted that the material provided by DLB in 2010 in support of his application was not relevant today. [45] Mr Rickard noted that DLB has obtained his medical registration since that time and has been found to be a fit and proper person to practice medicine. He submitted that there is no longer any exceptional circumstances existing in DLB’s case. [46] He noted that it would be odd that someone who can practice medicine in Queensland subject to conditions would be denied the right to be engaged in other activities with children. He suggested that this would be incongruous. [47] He further submitted the conditions applying to DLB’s registration are not sufficient for exceptional circumstances to be present and submitted the evidence did not reveal that there were exceptional circumstances. [48] He suggested that the Tribunal was entitled to note that the acts were committed over 20 years ago and hence there had been a considerable passage of time. He submitted that since that time the applicant became increasingly mature and had changed as a person. He further submitted that sexual misconduct towards children did not follow as a result of sexual misconduct towards adults. He indicated that the evidence by the psychiatrist was that it is highly unlikely that DLB would have the same sexual interests in children. [49] Mr Rickard indicated that obtaining of insight is gradual and that the issue is that he now has insight not how long it takes. He noted that the explanation given in relation to DLB’s gradual gaining of insight was accepted by the Medical Tribunal and therefore the Tribunal must accept that he knows how to handle himself in a position of trust. [50] He further submitted that DLB has insight into where he went wrong. He noted that he had given evidence regarding the strategies he would use in medical practice and how he would treat people in social settings, namely -- 9 of 20 -- 10 that there be an increased formality in his medical practice and that he would use a chaperone for intimate examinations. [51] Mr Rickard noted that there was no reason why the Tribunal should not believe him. He also pointed out to the Tribunal that all of the people treating DLB believe he has gained insight and that they do not believe he will reoffend. [52] He argued that the conditions placed on DLB by the Medical Tribunal were essentially related to his being out of practice for a long period of time, and should not come as any surprise. He further submitted this does not make the case exceptional. He argued that this did not suggest risk. [53] He also submitted the treating doctors can be regarded as experts and the Tribunal is entitled to take their views and the likelihood of reoffending into account. [54] Mr Rickard referred to the evidence of the lay witnesses who all spoke highly of DLB with respect to contact with children of theirs. He noted that LR’s evidence was of particular interest because of her involvement in child protection work and argued she was well placed to consider if a particular person was at risk to children. He submitted that his client was of no threat to children. [55] He submitted that the Medical Tribunal had found that DLB had effectively addressed all the concerns raised in the Commissioner’s reasons. These have been addressed in subsequent consultations with his treating team and with Dr X, an independent medical expert of the Medical Board, he submitted that the Tribunal had found DLB to be a fit and proper person and the Tribunal should find that there are no exceptional circumstances and that a positive notice should issue. [56] In response to the Commissioner’s oral submissions, Mr Rickard submitted that reports from all 3 treating specialists from August & September of 2011 noted that DLB had insight. He noted a report from Dr X referred to in the reasons of the Medical Tribunal that their independent medical expert, had found that DLB was unlikely to reoffend and it was noted that he gained further insight following a discussion with her. He further submitted that the prime interest is the protection of children and that there is no evidence that he poses a risk to children. There is no evidence of a breach of trust to children and it doesn’t follow that there will be a breach of trust to children following a breach of trust to adults. [57] He noted that it is not unusual for treating psychologists or treating psychiatrists to give their views on prognosis. [58] Finally, he submitted that the Tribunal was asked to draw inferences from the conditions imposed by the Medical Tribunal. The reasons of that Tribunal do not indicate why certain conditions were imposed. It is plausible that the condition in relation to psychiatric treatment was included to assist with reintegration into the medical profession. -- 10 of 20 -- 11 [59] The Tribunal found that there are no concerns that he would reoffend in finding him a fit and proper person and because conditions were placed on him an inference of this nature can not be drawn. The submissions of the Commissioner [60] Mr Capper, on behalf of the Commissioner, submitted that this Tribunal is not bound by the Medical Tribunal’s decision. He reiterated what was contained in the statement of reasons that the paramount consideration for the Tribunal was contained in section 155 of the CCYPCG Act. That is, that in making a decision, a child’s entitlement to be cared for in a way that protects the child from harm and promotes the child’s wellbeing is paramount. [61] Mr Capper also referred the Tribunal to the objects of the Act in section 5 and the principles for administering the Act in section 6. He submitted that any detriment to the applicant as a result of not obtaining the blue card was not relevant as any benefit a child might gain from him having a blue card would be irrelevant if the child was unsafe. He further submitted that for this case to be exceptional it has to be unusual and depart from the norm. He advised the Tribunal that it was the totality of the information that needed to be considered including risk and protective factors. [62] Referring to the matter of Volkers2, Mr Capper submitted that the passage of time was not determinative as exceptional on its own nor does it reduce the seriousness. He submitted that for time to be relevant it needs to be associated with insight and a change in the person’s character or demeanour. [63] He put to the Tribunal that the behaviour displayed by the applicant when he was a medical practitioner showed a gross breach of trust and submitted it was of direct relevance to children because he was in a position of authority at the time he engaged in the inappropriate behaviour of a sexual nature. He referred the Tribunal to a Children Services Tribunal matter of TAA3, where the Tribunal held that insight was an important factor in whether or not a person who had engaged in inappropriate behaviour in the past would not so behave in the future. He referred the Tribunal to a decision in the Appeal Tribunal of FCG4, noting that the threshold of not being an unacceptable risk to children was not a threshold to be met. He further noted that the patients involved in the applicant’s inappropriate behaviour were vulnerable and compliant. Whilst he acknowledged that the victims of the inappropriate behaviour were young women aged between 20 and 30, it was not beyond the bounds that the applicant’s impulsivity could result in inappropriate behaviour in someone less than 18. [64] A major thrust of Mr Capper’s submissions was questioning whether DLB had genuine insight or whether he was deliberately tailoring his answers to convince the Tribunal that he was a suitable candidate for a blue card. In 2 Mr Scott Alexander Volkers v Commission for Children and Young People and Child Guardian CSR 135-09. 3 Re TAA [2006] QCST 11. 4 Commission for Children and Young People and Child Guardian v FGC [2011] QCATA. -- 11 of 20 -- 12 this regard Mr Capper submitted that over a significant period of time DLB had shown no insight or empathy and that all of a sudden he had a light bulb moment. He submitted that DLB was simply providing a version of events so that he would get a positive notice. [65] He was critical of the strategies or lack thereof that had been developed by the applicant in conjunction with Dr Barling. Mr Capper submitted that the Medical Tribunal had imposed a number of conditions in relation to the re- registration and suggested therefore that the Medical Tribunal had some misgivings about DLB’s fitness. [66] Returning to the question of insight, Mr Capper submitted that the applicant had no insight until 2010. Whilst accepting that insight can be gradually obtained Mr Capper submitted that the applicant had been told he needed insight. He further submitted that the Tribunal can make an alternative finding to the Medical Tribunal and whilst it may be guided and comforted by the Medical Tribunal, that Tribunal was not looking at risk to children. [67] He further submitted that the Medical Tribunal can issue conditions and as a result the applicant would be working in a regulated environment whereas conditions can not be attached to blue cards. He drew the Tribunal’s attention to the applicant’s long history of non acceptance of his behaviour and that he has acted impulsively. He suggested to the Tribunal that the only strategy of any substance was that the applicant would have a chaperone during medical examinations of an intimate nature. [68] He conceded that if there was genuine insight it was only very recent and that this recency is concerning. In relation to the applicant’s interaction with children, he noted that this has been only of a limited nature and in circumstances where he was not in a position of authority. [69] He further submitted that DLB’s insight is not entrenched and it has not been tested in a health environment. He submitted that given DLB’s history this is an exceptional case and that he is being treated differently than other doctors with his conditions of registration because of his previous behaviour. [70] Mr Capper referred the Tribunal to a recent case of BA v Commission for Children and Young People and Child Guardian5. In this matter the Tribunal was concerned about the way in which evidence from a treating psychologist can be used. Whereas the Tribunal can inform itself as it considers appropriate in terms of section 28 of the QCAT Act, the Tribunal in that matter had a concern that the treating psychologist was not able to give expert evidence. The Tribunal concluded it was unsafe to rely upon the treating psychologist’s conclusion regarding the applicant’s risk of recidivism. [71] That Tribunal determined that it could take into account evidence from the psychologist in respect of her treatment. Mr Capper made submissions that this is the approach that the Tribunal hearing this matter should adopt. 5 [2012] QCAT 100. -- 12 of 20 -- 13 Discussion and decision [72] The Tribunal needs to consider how to treat the evidence from the applicant’s treating health professionals Dr de Saxe, Dr Phillips and Dr Barling. [73] The Commission referred the Tribunal to BA v Commission for Children and Young People and Child Guardian6. In this matter the Tribunal considered the evidence of the treating psychologist of BA. The Tribunal concluded that the psychologist could not give expert evidence as to BA’s risk of reoffending and would consider it unsafe to rely on her conclusions in that regard. [74] The Tribunal in BA concluded that the psychologist “should only have reflected matters within her treatment knowledge – observations of treatment of the client, presenting issues, diagnosis, findings made, further treatment required and progress made during treatment.” [75] That Tribunal decided to take into account the evidence of Dr McCullough as a treating psychologist and not her opinion on the risk of recidivism. This position was supported by the parties in BA. [76] In the matter before this Tribunal, Mr Capper urged the Tribunal to adopt the same approach as in BA. [77] On the other hand Mr Rickard submitted that the treating doctors can be regarded as experts and the Tribunal is entitled to take their views on the likelihood of reoffending into account, noting that it is not unusual for treating psychologists or psychiatrists to give their views on prognosis. [78] Section 28(3) of the QCAT Act outlines various ways the Tribunal must act in conducting a hearing. It is reproduced below: (3) In conducting a proceeding, the tribunal— (a) must observe the rules of natural justice; and (b) is not bound by the rules of evidence, or any practices or procedures applying to courts of record, other than to the extent the tribunal adopts the rules, practices or procedures; and (c) may inform itself in any way it considers appropriate; and (d) must act with as little formality and technicality and with as much speed as the requirements of this Act, an enabling Act or the rules and a proper consideration of the matters before the tribunal permit; and (e) must ensure, so far as is practicable, that all relevant material is disclosed to the tribunal to enable it to decide the proceeding with all the relevant facts. [79] In the circumstances of this case the Tribunal does not consider it would fall into error if it considered evidence from the treating health practitioners 6 [2012] QCAT 100. -- 13 of 20 -- 14 regarding the applicant’s risk of recidivism. It makes this determination for the following reasons: a. Dr de Saxe and Dr Phillips have a very long treating history with the applicant. b. All 3 health professionals held similar strong views. c. Section 28 allows the Tribunal to inform itself in any way it considers appropriate. d. The Tribunal is not bound by the rules of evidence or practices and procedures of courts of record unless it adopts them. e. Formality and technicality are to be avoided where ever possible and allowable. f. Whilst the Tribunal accepts that independent expert evidence would be preferable, it also considers it can accept the evidence of treating specialists and determine how much weight should be given to it. g. This Tribunal is not bound by the views expressed in the BA reasons. [80] The Tribunal must decide if DLB is to be issued with a positive notice or to confirm the Commissioner’s decision to issue a negative notice. A positive notice must be issued unless the Tribunal is satisfied DLB’s is an exceptional case in which it would not be in the best interests of children for him to have a positive notice. [81] The Tribunal must take into account the factors in section 226 of the CCYPCG Act. DLB was charged but not convicted with a serious offence. The alleged offences occurred nearly 20 years ago. He was found not guilty. The alleged offences occurred at a time when DLB was in medical practice. It can rightfully be considered that as a medical practitioner he was in a position of trust. The clear evidence is that he abused that trust and behaved in a sexually inappropriate manner towards adult female patients. [82] The Commission argues that this is highly relevant to the regulated employment given that children are vulnerable and are trusting of adults. [83] The Commission argues strongly that DLB continues to lack insight into his behaviours, it is not entrenched and has not been tested in a health environment. [84] The Commission has argued that DLB continues to display traits of impulsiveness, obsessiveness, lack of empathy and boundary issues, and that he has limited strategies in place. [85] The Tribunal accepts that DLB is genuinely remorseful and has insight into his previous unacceptable behaviours. It accepts that DLB continues to display the traits described above. [86] The Tribunal notes the lengthy and ongoing therapy that DLB is undertaking and gives him credit for this. -- 14 of 20 -- 15 [87] The Tribunal does not accept arguments that DLB is a risk to children in any way. [88] The Tribunal does not accept that DLB will behave inappropriately with children because he has behaved inappropriately with adult females. The evidence is non existent. [89] The Tribunal has identified potential risk factors and potential protective factors following the example in Commission for Children and Young People and Child Guardian v Maher and Anor [2004] QCA 492. [90] The potential protective factors for the applicant are: a. He is in a long term relationship. b. He has regained his medical registration. c. He has been in and continues to be in long term therapy and counselling. d. He has admitted his wrong doing and has insight into the impact of his inappropriate sexual behaviour on the women. e. The period of time that has elapsed since the inappropriate behaviour. [91] The potential risk factors are: a. The length of time it has taken him to gain an understanding of the wrongfulness of his behaviours. b. His personality traits such as:  Impulsiveness;  Obsessiveness; and  Lack of empathy and boundary issues impacting on his behaviour. [92] The evidence from the treating professionals and the lay witness strongly indicates that DLB poses no risk to children. [93] The treating professionals all agree that DLB has gained insight into his inappropriate sexual behaviour and it is highly unlikely he will repeat this. The Tribunal places considerable weight on their unanimous view, in light of their extensive treatment of him. [94] The Tribunal found DLB to be an honest and overly expansive witness, if not a little obtuse at times with his answers. [95] The Tribunal has read the decisions of the various tribunals and the court and takes comfort from the finding and decision of the most recent Medical Tribunal. [96] The Tribunal makes the following findings: -- 15 of 20 -- 16 a. That the applicant had not lied to gain his re-registration as a medical practitioner or in his application process and hearing for a blue card; b. The tribunal accepts the medical evidence provided by Doctors Phillips, de Saxe and Barling that the applicant’s insight into the nature and effect on others of his misconduct has developed incrementally over many years; c. The potential protective factors outweigh the potential risk factors; and d. There is no evidence that the applicant has posed or is likely to pose a threat to children and the tribunal accepts the evidence from the psychiatrists who are in agreement on this. [97] This tribunal has no statutory power to set conditions upon an applicant for a blue card. That the Medical Tribunal imposed certain conditions such as regular consultations with a psychiatrist, indicate not that the applicant is at risk of reoffending about which all the psychiatrists are in agreement he is not, but that he should not return to the work force unsupported after such lengthy absence from medical practice. [98] The Tribunal accepts the submission from Mr Rickard that no adverse inference should be drawn from the imposition of the condition. [99] The Tribunal accepts the submissions of Mr Rickard that DLB’s having conditions imposed by the Medical Tribunal for his re-registration does not make his case exceptional in this Tribunal. It accepts that after practising for so long it would be exceptional not to have conditions. [100] DLB’s circumstances may well be exceptional in relation to medical registration and his ongoing therapy. That doesn’t make the case exceptional in this matter, in the context of child safety and the best interests of children. [101] He is now able to work as a medical practitioner with children without requiring a chaperone and apart from his inability to practice for a long period, there is nothing else in his life of any peculiarity or out of the ordinary. [102] The Tribunal does not find that DLB’s case is exceptional such that it would not be in the best interests of children for him to have a positive notice. [103] The Tribunal orders that the decision to issue a negative notice be set aside and that a positive notice be issued. Confidentiality and non publication [104] The Tribunal invited submissions from the parties, post hearing as to whether a non publication order or confidentiality order should be made in relation to the reasons for decision or the material on the file. -- 16 of 20 -- 17 [105] The applicant provided submissions indicating that he has already suffered considerable hardship and publication may affect his chance of being re employed as a doctor. [106] He noted that even if he is de-identified it would not be difficult to work out who the applicant in this matter would be on the basis that the referral by the Tribunal in the reasons of the Medical Tribunal would make it relatively easy to identify him. He raises the question as to whether it would be fair having been successfully reinstated by the Medical Tribunal that his fiancée and close family members be exposed to further possible publicity. He submitted “it would be an unfortunate irony that if by proceeding with the application further publicity ensured which could affect this (employment prospects) regardless of the decision that has been determined.” [107] The applicant preferred that the publication of him as applicant be avoided. [108] In relation to the submissions for confidentiality, the applicant submitted that members of his family and close associates have been stressed as a result of publicity surrounding his applications to be reinstated as a medical practitioner. He further stated that his referees are all in professional positions and he believed that their anonymity should be protected to the extent that the Tribunal deems reasonable. In particular he singled out Ms LR and Ms S because of Ms LR’s employment and the sensitivity for Ms S who is a primary school teacher. [109] Finally he submitted that the Tribunal should de-identify both himself and ideally all referees should the reasons be published. [110] The Commission for Children and Young People and Child Guardian indicated that they had no preferred position to the making or otherwise of a non publication order. The Commission further submitted that in the circumstances of this case the Tribunal could be satisfied that a non publication or confidentiality order is not necessary to avoid any of the matters identified in s 66(2) of the QCAT Act or for any other reasons in the interests of justice. The Commissioner submits that in relation to both non publication orders and confidentiality orders that the Tribunal should in all cases de-identify children. [111] In the current matter the Commission notes that there is no material before the Tribunal which identifies or could lead to the identification of a child and submits that the issue and relevance of a non-publication order is wholly within the discretion of QCAT. [112] The respondent does not advocate for a non-publication order, similarly however the respondent does not object to the making of the order, “if QCAT is satisfied the circumstance of the case meets the criteria set out in s 66(2) of the QCAT Act.” This provides: “(2) The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary— (a) to avoid interfering with the proper administration of justice; or -- 17 of 20 -- 18 (b) to avoid endangering the physical or mental health or safety of a person; or (c) to avoid offending public decency or morality; or (d) to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or (e) for any other reason in the interests of justice.” [113] The Commissioner submits at paragraph 30 of their submissions that, “the existing statutory framework regarding the publications and decisions in QCAT commences from a position that a decision will be published unless it can be demonstrated that it is necessary for one of the criteria specified in section 66(2) and an order be made prohibiting publication of the identity of persons or particular evidence given in the proceedings.” The Commissioner submits that this conforms with the objects and principles in the QCAT Act in section 3. The Commission refers the Tribunal to a quotation from Justice McHugh JA in John Fairfax and Sons Ltd v Police Tribunal of NSW and Anor where he observed that, “accordingly, an order of a Court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice. The making of the order must also be reasonably necessary and there must be some material before the Court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication.”7 The Commission further submits that most Judges take a strict approach to the concept of necessity and equate it with what is essential rather than what is merely desirable. Paragraph 36 of the Commissioner decisions, “it is stated it is for this reason that the Courts have consistently held the potential distress, embarrassment and damage to reputation are insufficient basis of their own to justify the making of an order prohibiting or suppressing the publication of proceedings.”8 [114] The Commissioner referred the Tribunal to recent QCAT decisions regarding non-publication orders noting that in some instances the name of the applicant has been included in the orders whilst in others it has not been. The Commissioner argues that non-publication is generally seen to be justified on the basis that was identifying information such as organisation, childrens’ names or witnesses or could clearly identify the children and which could cause harm to the children. In other instances the Tribunal has issued non-publication orders where the making of such an order is necessary to protect the parties' interests. In other matters QCAT has refused to issue a non-publication order where the material sought to be protected from publication was already in the public domain.9 7 John Fairfax and Sons Ltd v Police Tribunal of NSW and Anor (1986) 5 NSWLR 465. 8 Anon 2 v XYZ [2008] VSC 466 citing Scott v Scott [1913] AC 417, per Viscount Haldane at 439 and per Lord Atkinson at 463; Herald & Weekly Times Ltd v Medical Practitioners Board of Victoria and Anor [1999] 1 VR 267, 294-295; Herald & Weekly Times Ltd v Williams (2003) 201 ALR 489 at 498; Herald & Weekly Times Ltd & Magistrates Court of Victoria & Ors [1999] 2 VR 672 at 679, J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 at 45. 9 Lister v Commission for Children and Young People and Child Guardian (No 3) [2011] QCATA 88; Commission for Children and Young People and Child Guardian v Lister (No 2) [2011] QCATA 87. -- 18 of 20 -- 19 [115] The Commissioner submitted that DLB’s case can be distinguished from others where non-publication orders have been issued in that: a. He and his partner had no children. b. The offences the applicant was charged with did not involve children. c. Names of the complainants have not been disclosed during the course of the proceedings. d. The allegations made against the applicant are contained in numerous publicly available decisions like the Medical Tribunal decisions and the Court of Appeal decision. [116] The Commission further submits that the applicant’s grounds for seeking a non-publication order are that it would be unhelpful to his future medical career and unfair to himself and his loved ones. The Commissioner notes that disciplinary matters to which the applicant was subject are a matter of public record and submits that it is “unclear how a non publication order would further enhance or the lack of a non publication order could further damage his future medical career particularly given the publicly available material which relates to his disciplinary matters and offending conduct.” [117] The Commissioner further submits that “a further consideration in determining whether a non publication order is to be made is the public interest, in the event that the applicant is successful in his application to have the negative notice overturned. The Commissioner argues that should a non publication order be made, the public and in particular any prospective employee, would be unaware of the previous conduct of the applicant. As a consequence these persons would not be in a position to identify the relevant issues and risks and to implement appropriate risk management strategies to minimise or remove any inherent risks arising from his admitted sexual misconduct with former patients.” [118] Their submissions conclude with the following paragraphs: “If the Parliament had intended that child-related employment screening review proceedings not be subject of publication as a matter of course, or solely because of potential embarrassment or future employment implications, they would have legislated accordingly. While sympathy may be had for the fact that the Applicant and persons supporting his case may suffer embarrassment, humiliation, or even stress and anxiety upon the matter being published or receiving media attention, the same could be said for every applicant who comes before the QCAT for child-related employment screening review and does not constitute a ground for, or necessitate the making of, a non-publication order. While the respondent has no preferred position as to the making or otherwise of a non-publication order, having regard to the relevant authorities outlined above, the Respondent submits that the QCAT could be satisfied that there are not compelling grounds that indicate that a non- publication order or confidentiality order is necessary10 in this case.” 10 Section 66(2) of the QCAT Act. -- 19 of 20 -- 20 The Tribunal’s view [119] In the Tribunal’s view the Commission makes two very important points. Firstly DLB’s behaviour has been published widely in decisions of the Medical Tribunal and in the press. It would seem on that basis that there is little point in making a non-publication order because his name is out there in the public arena. [120] The second matter which the Tribunal accepts is that it is not a sufficient reason to make a non-publication order because the publication of a decision would be unhelpful to DLB’s future medical career. The Tribunal notes the previous authorities in which courts have not considered embarrassment as being sufficient grounds to make a non-publication order. [121] There are, however, two factors weighing on the Tribunal. The first is that the public who have had access to the information about DLB is, for the most part, not the Queensland public. It is arguable nevertheless that the Queensland public could search the interstate Medical Tribunal orders, but without publication in the press, as has occurred elsewhere, the Queensland public would have no reason to look for his name. [122] The second matter weighing on the Tribunal is that DLB has now been reinstated and has therefore been successful in his attempt to be able to work again as a medical practitioner and he has been successful in his application in having his negative notice overturned. It is of concern to the Tribunal that a person who has been successful in effectively clearing his name should have his details potentially revealed in a state other than where his behaviours of concern occurred many years ago. [123] Having considered the arguments the Tribunal considers, on balance, that it is appropriate to make a non-publication order in respect of the applicant’s name in the interests of justice. These reasons will be published in a de-identified format. -- 20 of 20 --