BJC v Children's Guardian

BJC v Children's Guardian - [2015] NSWCATAD 105 - NSWCATAD 2015 case summary — Zoe

Legal Principles

BJC requires a working with children check clearance because he seeks to engage in child-related work as a medical practitioner.
The Child Protection (Working with Children) Act 2012 ('the Act') provides that a worker must not engage in child-related work unless he holds such a clearance. (section 8 of the Act).
The object of the Act is to protect children by not permitting certain persons to engage in child-related work, and by requiring persons engaged in child-related work to have working with children check clearances. (section 3 of the Act).
The Children's Guardian has the power to undertake a risk assessment under s15 of the Act. Section 18(2) of the Act provides that the Children's Guardian must grant a clearance to a person who is subject to a risk assessment unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
Those matters that will trigger such an assessment by the Children's Guardian are set out in Schedule 1 of the Act. They include where proceedings have been commenced against the applicant for an offence of sexual/indecent assault but where, because he was not convicted of the offence or because the proceedings are not pending determination, the applicant is not a disqualified person: see section 18 of the Act, section 1(b) of Schedule 1 to the Act and sections 1(e) and 1(z) of Schedule 2 to the Act.
In this case, the risk assessment was triggered because the applicant had been charged with sexual intercourse without consent and with committing an act of indecency.
Having undertaken a risk assessment for BJC, the Children's Guardian then refused his application for a working with children check clearance.
The Tribunal has the power to review such a decision under section 27 of the Act. In doing so, the Tribunal must consider the following factors set out in section 30(1): (a) the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar, (b) the period of time since those offences or matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the offences or matters occurred, (d) the age of each victim of any relevant offence or conduct at the time they occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's total criminal record and the conduct of the person since the offences occurred, (i) the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition, (j) any information given by the applicant in, or in relation to, the application, (k) any other matters that the Children's Guardian considers necessary.
As was observed in the interim stay decision (at [110]), the jurisdiction of the Tribunal under section 27 of the Act is protective and not punitive in nature: AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 69, at [34]; Commission for Children and Young People v FZ [2011] NSWCA 111, per Young JA at [61] and R v Commission for Children and Young People [2002] NSWIRComm 101 at [130].
In consideration whether an applicant is a risk to children, the test to be applied is whether the risk is "a real and appreciable risk": see BYR v Children's Guardian [2013] NSWADT 310, at [38], [39]; AYU v NSW Office of the Children's Guardian [2014] NSWCATAD 9, at [37], [38]; Commission for Children and Young People v V [2002] NSWSC 949; 56 NSWLR 476, at [42] per Young CJ in Eq (as he then was).
That test has been held to be applicable in these matters in the Tribunal: see AHV v NSW Commission for Children and Young People [2012] NSWADT 263; AYU v NSW Office of the Children's Guardian (supra).
In order to confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision, regard may be given to extrinsic material such as the second reading speech of the Minister on the occasion of the moving by that Minister of a motion that the Bill which becomes the Act be read a second time in that house of Parliament: section 32 (2) (f) of the Interpretation Act 1987.
On 13 June 2012, the second reading speech for the Bill, which became the Act, was given by Mr Dominello, Minister for Citizenship and Communities, and Minister for Aboriginal Affairs. In part it reads as follows: All adults can present a risk to children. The Bill does not propose that all adults be barred from working with children because of a hidden potential for risk. Rather, the Bill proposes that to bar a person from working with children the risk must be significant.
In the following paragraph the Minister stated: While the bill sets out the factors to be considered in an assessment and a review, the weighting given to these factors is not prescribed and is a matter of expert judgment. Expert judgment will consider the significance of the harm having been realised, whether the behaviour was beyond reasonable community norms, whether the behaviour was planned, whether the behaviour is part of the pattern of ongoing or escalating events, whether the behaviour is recent, and whether the behaviour, if repeated, would do significant harm. Expert judgment will be applied to mitigating factors such as significant and sustained positive socialisation since the behaviour occurred, recurrence or cessation of concerning behaviour is over a significant period, and genuine and sustained effort to remedy the conduct and past behaviour. Remorse on its own is not considered to be a factor that mitigates risk."

[4]

Risk Assessment Report by the Children's Guardian dated 11 March 2014

A risk assessment was prepared by the respondent on 11 March 2014 recommending that the applicant be barred from being granted a working with children check clearance. This recommendation was endorsed by a panel review of the Office of the Children's Guardian on 25 March 2014.
The risk assessment was triggered by charges laid against BJC in 2005. They consisted of one count of an act of indecency without consent and one count of sexual intercourse without consent. Both charges were dismissed in 2007 on the basis that no evidence was offered by the prosecution.
The circumstances leading to the charges are set out in the risk assessment and can be summarised as follows.
On 2 December 2005, the applicant was working as a doctor in a hospital in Australia. A 19-year-old woman attended the hospital at 3am with severe vomiting and diarrhoea. The woman, who suffered from inflamed bowel disease, was accompanied by her mother. The applicant attended to the patient and attempted to take a medical history from her. The patient later stated that she had problems providing her medical history given communication difficulties with the applicant, for whom English is not his first language. According to the patient, the applicant cupped her breasts whilst listening to her chest. The applicant then conducted an anal inspection on her. In the risk assessment the circumstances of the inspection are described in the following way: The applicant started to examine the victim's rectum. The victim was not surprised by the applicant's request to perform this examination as she had been exposed to this type of examination previously by her specialist. However she was anxious about having this done, due to the pain it can cause….She described the examination as the defendant feeling around her anus with his fingers. The applicant moved his fingers away from her anus and began to examine the skin between her anus and her vagina, the perineum. The applicant moved his fingers to the entrance of her vagina. This made the victim 'jump' as she was not expecting her vagina to be touched. The applicant asked her if the examination hurt or whether she was in pain. The victim said 'no.' The applicant moved his fingers back towards the victim's anus and he stopped examining her momentarily and so the victim began to compose herself. The applicant again moved his fingers towards the opening of her vagina and slightly inserted his fingers into the victim's vagina. This made her 'jump' forward on the bed.
The matter was reported to the police and charges of an act of indecency and sexual intercourse without consent were laid against the applicant. As noted, these charges were dismissed when no evidence was offered in support of them.
The risk assessment makes the following observation in this regard: 'Unfortunately it is not currently known why the case was dismissed, other than no evidence being available to offer. Clarity will be sought by the [Office of the Children's Guardian] via AFP.'
In its summary, the risk assessment states that 'the [Office of the Children's Guardian] are trying to clarify the reasons why the case was dismissed via communication with AFP (a records review officer is responsible for gaining this), despite this outstanding information the decision to bar is recommended.'
A further incident, set out in the risk assessment, is described as follows: On 21/10/07, the applicant picked up a female staff member's ID badge and 'touched her several times on the side and sat close to her invading her personal space.' The female staff member felt 'unsafe.' The applicant was cautioned in relation to his perceptions of others and his interaction with them as a consequence.

[8]

Statement by the applicant dated 31 January 2006 in response to the complaint

On 31 January 2006, the applicant provided a statement in answer to the allegations made by the patient. In part, the statement reads as follows: [The patient] indicated to me that she had diarrhoea..and vomiting…She told me she had previous chronic diarrhoea which had been attended by a specialist gastroenterologist [who] had undertaken a colonoscopy and gastroscopy on April 2005. Reportedly he had indicated there was an anal fistula but no evidence of Crohn's disease at that time….In addition to her abdominal and bowel symptoms it was also noted she was using a Ventolin aerosol inhaler from time to time for her asthma. Given the history of asthma, I also examined her chest using a stethoscope in order to listen to her heart sound and lungs…This examination involved placing a stethoscope in a number of regions in proximity to the patient's breasts. I explained to the patient and her mother that I would need to conduct an examination of her rectal area because of her abdominal pain and in order to determine whether there was an anal fissure or fistula present. The patient consented to this examination. In relation to my examination of the buttocks and vaginal area I can indicate that: I was concerned because I thought she had mentioned an 'anal fistula' when initially taking the history. This is a more serious condition than an 'anal fissure' and can be a complicating factor in Crohn's disease (it should also be noted that the Nursing records indicated 'Bowel Fistula' as a known condition.) For this reason, while I was examining her rectal area, I also looked at the area between the anus and the vaginal opening to look for evidence of a fistula. At all times during my examination the patient remained in the left lateral position. At no time was the patient placed or moved to a dorsal position or any similar position with her legs apart. The examination did not involve any digital or instrumental penetration of the vagina or rectum. At the commencement of this examination I looked out to find a nurse who could assist and act as a chaperone but all of the available nurses appeared to be busy with the other patients. I decided to rely on the presence of the patient's mother as a chaperone, mainly so I could expedite this examination and not subject the patient and her mother to any necessary delay. I am surprised by this complaint and believe that at all times during my attendance I was acting in the best interests of this patient and conducted my examinations in a professional and appropriate manner. I am sorry that this patient has experienced discomfort and anxiety as a result of my examination. In future I will ensure that I always obtain appropriate assistance from other hospital staff to assist with this type of examination.

[11]

Psychological report by Dr Seidler

A psychological report by Dr Katie Seidler was prepared for the applicant on 16 October 2014.
The report sets out the applicant's childhood, educational and professional background.
In light of her consultation with the applicant and the documentation before her, Dr Seidler assessed him as posing a low risk of sexually abusive behaviour. In making this assessment, Dr Seidler listed the following issues as being protective against the applicant's risk of sexually abusive behaviour:

he has apparently never been convicted of a sexual offence;
he was reportedly notified for engaging in sexually abusive conduct on 2 occasions almost ten years ago;
he does not present as inherently anti-social, denied a history of entrenched deviancy, hypersexuality or use of sex as an emotional coping strategy;
he did not endorse attitudes consistent with sexual abuse nor did his endorse a history of notable social or interpersonal deficits;
he has the experience of mature intimacy in a long-term marriage;
he has no history of mental health or substance abuse, nor was he a victim of child abuse;
he has participated meaningfully in the community and his lifestyle has been one of stability and prosociality.
he is not psychopathic according to the Personality Checklist Revised (PCL-R).

Dr Seidler identified two factors considered to elevate the applicant's future risk, namely that there was psychological coercion present in the alleged sexually abusive situation given his role as a doctor; and that he denies any sexual misconduct during the alleged incidents.
In acknowledging the allegations made against the applicant, Dr Seidler found that he 'does not present with notable risks in relation to sexually abusive conduct.' She noted the applicant's recognition of the importance of careful risk management in his work generally as a medical practitioner. In particular, he reported that he should always use a chaperone for personal examinations as per hospital protocol. He was also cognisant of the importance of careful explanations being offered to clients that are clear and allow them to ask questions and feel as comfortable as possible with the process. He also recognised the need to practise in an appropriate matter, which would include not physically examining any part of the body that is not indicated in a diagnosis.

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

Parties

Cases Cited (5)