The applicant, who will be referred to as BQP, is a medical practitioner by profession. On 26 July 2013, he applied for a working with children check clearance. Following his request, the Office of the Children's Guardian ('the Children's Guardian') conducted a risk assessment for BQP. The trigger for the investigation was the finding by the Department of Family and Community Services (FACS) of sexual misconduct by BQP.
Following the completion of the risk assessment, BQP was issued with a 'Notice of proposed refusal of application' under s19 of the Child Protection (Working with Children) Act 2014 ('the Act') inviting him to make submissions to the Children's Guardian. Having considered BQP's subsequent submissions, the Children's Guardian made a decision on 16 December 2014 to refuse to grant him a working with children check clearance. BQP's application for review was lodged, within time, on 6 January 2015. He has therefore applied to the Tribunal within 28 days after notice of the decision was given to him, in accordance with subsection 27(1) of the Act.
There is no dispute that the Tribunal has jurisdiction to hear and determine BQP's application.
Due to the sensitive nature of these proceedings, an order was made, under subsection 64(1) of the Civil and Administrative Tribunal Act 2013, that the name of BQP was not to be published without the leave of the Tribunal. For this purpose the pseudonym BQP has been used for the applicant's name and his former places of employment have been simply referred to as 'Hospital 1' and 'Hospital 2.' Those children identified in the decision are simply called 'Child 1' and 'Child 2'. The program for disadvantaged children referred to in the decision is called 'the family mentoring program.'
[2]
LEGAL PRINCIPLES
BQP 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 a person has been the subject of a finding by a reporting body that the person engaged in sexual misconduct committed against, with or in the presence of a child, including grooming of a child (Schedule 1 (2)(a) of the Act).
In this case, the risk assessment was triggered because of a finding by FACS that BQP had engaged in sexual misconduct, namely that he had sucked the penis of a child to be referred to as Child 1.
Having undertaken a risk assessment for BQP, 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) (as are similarly set out in section 15(4) of the Act):
(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 BQP in, or in relation to, the application,
(k) any other matters that the Children's Guardian considers necessary.
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 considering 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 this 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 for the Bill that became the Act in question: section 32 (2) (f) of the Interpretation Act 1987.
On 13 June 2012, the second reading speech for the Bill, which became the Child Protection (Working with Children) Act 2012, 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.
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."
The Minister noted that:
Any assessment trigger, whether a criminal matter or a disciplinary matter, must be able to sustain an appealable bar against working with children. There are two conditions that need to be met to achieve this. First, the investigation of the conduct must be sound and must have taken into account the principles of natural justice; and, second, the conduct must be of a serious nature and must have actually occurred. Unsustainable allegations will not sustain an appealable bar. Only employers whose investigation practice meets the first condition will be reporting bodies that report disciplinary matters. They will be obliged to do so by law….Only sexual assaults, sexual misconduct and serious physical assaults have been identified to date as meeting the second part of this requirement. The range of matters to be reported may be extended by regulation.
The relevant applicable standard by which risk is to be assessed when considering an application such as this is the civil onus: the balance of probabilities as modified by section 140(2) of the Evidence Act 1995 (NSW). BJB v The Children's Guardian (No 2) [2014] NSWCATAD 163
Neither party bears an onus of proof in relation to an application under section 27 of the Act: see Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 [2006] HCA 53; (2006) 231 CLR 1 at [39]- [40]. The Tribunal has to consider all of the evidence whether adduced by the applicant or the respondent in the light of those considerations set out in sections 15 and 30 of the Act.
The Tribunal is to act with as little formality as the circumstances permit to appropriately determine matters without regard to technicalities or legal form: section 38 of the Civil and Administrative Act 2014; Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [15]- [17].
Ultimately, the Tribunal is the decision maker and can have regard to 'any' material subject to the rules of natural justice: section 63 of the Administrative Decisions Review Act 1997.
[3]
Background
Between 1989 and 2005, BQP and his parents mentored eight disadvantaged children as part of an organisation that sought to match up children with mentors. The goal of this family mentoring program, as set out in its vision statement, was to create an extended family network and to make the relationship as much like a real family situation as possible. BQP and his parents saw the children regularly. This included taking the children for weekends and taking them out on excursions. In 2005, BQP was a finalist for the local council's community awards for his work with the family mentoring program.
Child 1 was one of the children mentored by BQP and his parents. During the period he was mentored, Child 1's father was in gaol for stabbing his mother. Child 1 had earlier been in foster care but was living with his mother, siblings and another male adult when BQP became his mentor. BQP first encountered Child 1 as a patient in the Hospital 1, where BQP was working as a doctor. At this time, Child 1 told BQP that he was on the waiting list of the family mentoring program. BQP was advised that due to his background and behavioural issues, Child 1 was proving difficult to place with a mentor. BQP agreed to mentor the child, an arrangement that commenced in 2004.
[4]
Assessment record from FACS
An assessment record dated 23 May 2005 provides a narrative in relation to a visit by a worker from the Department of Family and Community Services (FACS) to Child 1 and his mother. In answer to questions by the FACS officer, Child 1 advised that:
he slept in the same bedroom as BQP;
BQP gave him tablets;
one morning he woke up to find his pyjamas pants around his ankles;
BQP let him drive his car;
he found sex magazines in BQP's bedroom;
BQP examined his penis and checked for 'boils on his bum';
BQP would make him get undressed in front of him.
A file note of a conversation with Child 1's mother reveals that BQP had examined Child 1 because he had a penis infection and that the mother had been happy for BQP to examine her son, given that he was a doctor.
A risk of harm analysis prepared by FACS on 25 June 2005 in relation to the above incidents states that BQP:
confirmed during interview that [the program organisers] have raised issues with him regarding his practices with [Child 1] and other children (i.e. sleeping in the same room) but he has continued with such despite their recommendations.
In the secondary assessment stage 2 consultation in relation to the above incidents, the following comments are made:
Insufficient grounds evident to determine these incidents were abusive, in comparison to completed on medical grounds;
Police to suspend their investigation;
Applicant will not continue to provide care via [the program];
Dept of Health to follow up work related issues for BQP.
A file note dated 8 June 2005 describes a conversation with Child 1's mother in which she tells the FACS officer that her son had disclosed that he woke up one night and BQP was 'sucking his doodle.'
Files notes by a Child Protection Caseworker with the Joint Intervention Response Team ('JIRT') document the following further statements by Child 1:
that BQP used to put a BB gun to my head and has also put a machete to my neck, while threatening to kill/pretending to kill but that BQP was only playing;
that BQP would swing the machete and pretend to cut Child 1's head. Child 1 applied that BQP swings the machete and 'just misses my head.'
that on four occasions, BQP would use the BB gun to try to wake him up. Child 1 stated that he wakes up and sees BQP standing over him with the BB gun, BQP then starts laughing and tells him to get up
that BQP would take him on walks every night and that they would go near a cliff near the water. BQP would lean Child 1 forward over the cliff and jerk him back up.
that he has been having nightmares since DOCS spoke with him, and that in his dreams BQP really does kill him with the machete and BB gun.
that BQP watches him in the shower and makes him get undressed in front of him and sleeps in the same room with him.
that BQP had 'sucked his weeny' on the same day they had visited a leisure centre pool which had required the payment of an entrance fee. Child 1 later stated that it was the day they visited the ocean pool near the holiday house which does not require an entrance fee.
that when BQP sucked his weeny, Child 1 was wearing boxer shorts. Child 1 later changed this to say he had his long pyjamas on. According to the file note 'in attempting to clarify these inconsistencies, Child 1 provided further conflicting information.'
The assessment makes the following further comments in relation to Child 1:
Child 1 is 12 years of age [and] has a lengthy Departmental history. This involves exposure to domestic violence with his natural father…Ongoing reports have been received in relation to care provided by the natural mother. This has cumulated in Children's Court action with the Department seeking long term parental responsibility for Child 1…Difficulties were encountered [by the sexual assault service] when trying to engage Child 1 in sexual assault counselling with the natural mother providing no assistance to facilitate this process. During a home visit to the family home JIRT staff witnessed numerous adult males going to and from the home. It would appear Child 1 would have no protective ally in the home and the ability of the natural mother to provide protection from inappropriate adults would be minimal….It is acknowledged that Child 1 may have a history of lying yet it is difficult to determine what he may gain from lying in this matter.
[5]
JIRT investigation
On 23 May 2005, Child 1 made the following allegations to organisers of the family mentoring program which he then repeated to police as part of a subsequent JIRT investigation:
he and BQP slept in the same room, albeit in separate beds;
BQP gave Child 1 tablets he said were Vitamin B tablets;
BQP allowed him to drive his car on his property;
BQP had sex magazines hidden inside other magazines;
BQP gave Child 1 different antibiotics to replace those that had been prescribed for him;
BQP examined his penis on three occasions;
BQP checked boils on his bottom;
BQP watches him in the bathroom, runs the shower and makes him get dressed in front of him;
BQP yells at him when he is suspended from school;
he sometimes wakes out in the morning to find his pyjamas around his ankles.
In the course of this interview, Child 1 did not speak of BQP sexually assaulting him by performing oral sex on him.
In a subsequent interview on 10 June 2005, Child 1 spoke of nightmares he'd had of BQP shooting him with his BB gun. He then spoke of BQP pretending to chop off his head with his machete. When asked whether that was part of the nightmare or true, Child 1 replied, 'they're true.'
In describing the machete, Child 1 said
A: He just swang it…and I ducked and, yeah, and I didn't know it was going to hit me and that's why I ducked.
But he told me when to duck and that…He goes, he went…Duck, and I ducked and it went across my head
Q: And what [w]as the next thing that happened after you ducked?
A: Nothing…He just put it straight back and then we went down to have tea.
Q: How did you feel when, when that time happened?
A: Scared
Q: What did you think might happen?
A: That he was trying to kill me.
Q: And what made you think that?
A: Because he swang it at me.
Later in the interview, Child 1 wrote down that BQP had 'sucked his weeny' on one occasion when they were staying at the holiday house. He said that he had not disclosed this during the previous interview because 'youse would have, because, I don't know. I was, I would, I'm just too scared to tell anyone things like that.'
As part of this investigation, the police interviewed a second child who stated, in part, that:
he would sleep in the same bedroom as BQP because he was the youngest and other children were sleeping in the spare room;
he would shower and dress alone when at BQP's house;
BQP has never examined him for medical purposes;
he has never seen a BB gun or machete at BQP's house and has never seen BQP play tricks on any of the other children.
In an interview on 24 June 2005 a further mentee of BQP, who I will refer to as Child 2, told the police that he had stopped seeing BQP because:
A: Things just got a bit weird for me…he always used to hug me and, you know, kisses on my head and say he loves me and like, I've just started to know him and he was saying that
Q: Ok. So how long had you known [him] when he started to hug you and tell you he loved you?
A: I'm not sure. A couple of months. Maybe a year. …He used to kiss me on the forehead, goodbye or whatever
Q: Where else did he kiss you?
A: That's it.
He also described sharing a bed with BQP on one occasion when he was 'really sad and upset' and told the police officer that 'it was a bit weird…like I wanted to get out of bed and just go to sleep in a different bed but I was..feeling that would be a bit rude and he would take it the wrong way.'
He had been upset that day because it had been the anniversary of his father's death. According to the evidence, Child 2 was eleven years old at the time this occurred.
On 19 July 2005, BQP agreed to be interviewed by police in relation to the JIRT investigation. In the course of this interview, BQP stated that:
he had allowed Child 1 to sleep in the spare bed in BQP's bedroom because Child 1 had been scared to sleep alone in the guest room;
he had conducted three medical examinations of Child 1's groin area, twice in relation to an infection, and at the mother's request, and once following a bike injury sustained by the child;
on two occasion, he had examined boils on the boy's bottom, once with the mother present and once as a follow up examination;
he had no knowledge of Child 1 waking up with his pyjama pants down around his ankles;
he had allowed children to steer his car;
he did have a BB gun and machete at his home but denied playing around with them or holding the BB gun to Child 1's head;
he had cried during a telephone conversation with Child 1 when the child said he did not want to continue academic tutoring with BQP;
he had given vitamin tablets to Child 1 to supplement his diet;
he had kissed his mentees on the cheek, mouth and lips, had told them that he loved him and 'very occasionally' asked them to respond by saying they loved him;
he did not sexually assault Child 1;
he did not have pornographic material in his home.
On 17 August 2005, Child 1 was again interviewed by police. During this interview, Child 1 changed his version of events, including the period of time in which the sexual assault was alleged to have occurred. He was unable to explain information by other witnesses about lies Child 1 was said to have told. Child 1 then requested that the investigation be stopped.
That day, Child 1 signed a withdrawal of his complaint of assault and requested that the police not proceed with its investigation into the matter. The child's mother also signed and dated the form.
Notes attached to the form state that:
After consideration the victim is not competent to give evidence in court. Legal Advice suggests there is no likelihood of a successful prosecution. Retraction signed on file.
A subsequent police report into the matter stated that:
When considering the matter police feel the victim is not credible and is unable to explain vital aspects of the investigation. Legal advice has been sought..who is also of the belief that there is no likelihood of any successful prosecution in this matter.
Despite the withdrawal of the complaint and the above conclusion by police, FACS found the allegation of sexual assault to be substantiated. There is no material before me to explain the basis for this conclusion.
[6]
Risk assessment of BQP by Hospital 1
JIRT referred the matter to Hospital 1, BQP's then employer, who conducted a risk assessment for BQP that was completed on 1 November 2005. Whilst Hospital 1 was given access to BQP's record of interview with JIRT and 'various witness statements', it would appear that the retraction statement by Child 1 was not provided to the hospital:
The JIRT investigation into allegations about [BQP's] involvement with young persons..was not completed but was 'suspended' pending receipt of further information.
The second report referred to JIRT about [BQP], made in June 2005 involving an allegation by [Child 1] that he had been sexually assaulted by [BQP] was regarded by JIRT as 'substantiated'. [She] expressed the opinion that the child had been sexually assaulted, but believed that the evidence against [BQP] was such that a criminal conviction would not result if he was to be charged..Because the JIRT enquiries were not regarded as completed, [the officer in charge] requested no further dissemination of the JIRT brief and we have complied with that - apart from the request made by us to provide [BQP] with a copy of the transcript of his record of interview.
The assessment reached the conclusion that if a complaint were pursued against him, BQP could be found guilty of professional misconduct on the basis of a failure to maintain proper boundaries in his professional relationships, particularly with his child patients.
In compiling the assessment for BQP, the assessors spoke to the officer in charge of the JIRT investigation into BQP. She expressed the view that BQP had been involved in inappropriate behaviour, not only with Child 1 but with other children. She felt that BQP lacked proper boundaries in dealing with the children. According to the officer, BQP's behaviour 'could be seen as "grooming" behaviour, whether [BQP] was aware of how his behaviour could be interpreted or not.'
In a letter by the relevant health service to the NSW Ombudsman, the following observations were made in relation to Child 1's statements:
There were 3 occasions where the child awoke with his pants down to his ankles, although the child's mother had been questioned and she had advised that he often sleep walks and it is likely this occurred during one of these occasions. Finally, that the child had admitted that he was searching the room when he found the pornography, it was not something made readily available to him, that when [BQP] realised the child had it, [BQP] removed it and the content of the pornography was adult in nature.
The assessors make the following observations in relation to BQP:
[BQP] in our view exhibits an alarming tendency in his statements to JIRT and ourselves to 'go it alone' which blinds him to the perceptions of others about his activities in relation to children. He prevaricates about his responsibility to report situations where children may be at risk to DOCS. It seems to us that he would not be in the dilemma which he still experiences if he was clear about boundaries and if he had not had contact with child-patients in other contexts.
Following a risk assessment by the hospital, BQP's employment was terminated in 2005 on the basis that he had 'breached important professional boundaries and failed to exercise due care in [his] interaction with children and young people.' He was deemed to pose an unacceptable risk to the welfare and safety of children.
[7]
Findings of the NSW Medical Board (section 66 inquiry)
In 2006, an inquiry was convened under section 66 of the Medical Practice Act 1992 to determine whether, in order to protect the public, it was necessary to suspend or place conditions upon the practice of medicine by BQP. The inquiry was convened following allegations that BQP had breached professional boundaries and failed to exercise due care in his interactions with children and young people. BQP was alleged to have accessed the medical records of a child who was not his patient, without proper authority. Further allegations were that BQP had allowed Child 1 to sleep in the same room as BQP but in a separate single bed, had undertaken genital examinations of the child outside of a clinical setting and had spent excessive amounts of money on the child. This behaviour was alleged to have potentially constituted 'grooming' behaviour.
Although the triggering allegation was that BQP had sexually assaulted Child 1 by placing his mouth on the boy's penis, the NSW Medical Board ('the Medical Board') found that it was not the role of the inquiry to determine the truth of the disputed allegation but instead to identify whether BQP's practice of medicine represented a risk to the public.
The psychiatrist, Dr Stephen Allnutt, was requested to provide a report in relation to BQP to assist the Medical Board in determining whether he was suitable to be registered as a medical practitioner. Dr Allnutt also gave oral evidence before the Medical Board.
Included in the sources of information provided to assist in Dr Allnutt's preparation of the report was a copy of the confidential risk assessment for BQP by Hospital 1. Dr Allnutt had a clinical consultation with BQP during which he denied any grooming behaviour towards children. He also denied ever putting his mouth around Child 1's penis.
In his review of the documentation before him, Dr Allnutt wrote as follows:
There were a number of documents made available to the risk assessment team, which were unavailable for me at this stage. The JIRT investigation was not completed but was suspended pending the receipt of any further information; the allegation by [Child 1] that he had been sexually assaulted by [BQP] was regarded as substantiated, the investigating detective expressed the opinion that [Child 1] has been sexually assaulted, but that the evidence against [BQP] would not result in a conviction if he was charged.
Nowhere in his report does Dr Allnutt refer to Child 1 having retracted the allegation.
In his evidence to the Medical Board, Dr Allnutt expressed the view that a doctor of BQP's standing should have a good understanding of boundary issues. Having expressed his concerns in relation to a possible underlying paedophilic drive, Dr Allnutt was asked what other motivations could explain the behaviour of BQP. According to the findings of the inquiry:
He stated that there may be an altruistic desire to give and to commit time to those less fortunate due to his childhood experiences. This may lead him to feel that, because he knows he is trying to do good, he does not need to observe the rules. Whilst this may be a plausible explanation, Dr Allnutt felt that this should be viewed cautiously, in the circumstances where an allegation of sexual assault had been made.
Dr Allnutt also considered whether BQP had a pathological over-identification with children to the exclusion of pursuing typical adult relationships. Although expressing the view that the pattern of behaviour of BQP was not consistent with any particular category of personality disorder, he stated his view that BQP's interaction with children had had a significant impact on his interpersonal and professional life.
Dr Allnutt expressed concern that the following actions by BQP could be grooming behaviour:
fostering relationships with the parents of the children he mentored;
using the program to provide access to children;
offering treats, gifts and holidays to the children.
Dr Allnutt stated that in the presence of an allegation of sexual assault, BQP's preoccupation with children, many aspects of his behaviour with children, his lack of significant adult relationships would be highly suspicious, although he conceded that there might well be a benign motive behind his behaviour.
The psychologist, Ms Plahn-Williamson, told the Medical Board that a number of issues about BQP alerted her to the possibility of paedophilia. These included the unresolved trauma of his parents (who had experienced hardship during the second world war), his lifestyle, which did not involve a committed heterosexual relationship and his involvement in the program since he was a young adult. She told the Medical Board, however, that in contrast with child sex offenders she has dealt with in her work, she has found BQP to be open and honest, rather than secretive, as she has found other patients to be. She believed he has been genuinely shocked by the realisation that some of his behaviours have been interpreted sexually. She also told the Medical Board that BQP felt very angry with the family mentoring program for encouraging a one on one 'family' type relationship without attempting to gauge how traumatised the children are. She expressed her view that she believed that BQP's understanding of the importance of boundaries was now high and that he accepts that 'boundaries heal'. He also understands that patients, especially children, may become very attached to him and that this is potentially dangerous.
According to Ms Plahn-Williamson, BQP has had relationships and friendships with women and is seeking a relationship that leads to marriage and children. She described his family as very close and described him as having been brought up in an environment where family was paramount and there was little opportunity to seek outside relationships. As a result, BQP sought pursuits his family supported, particularly charitable ones. His social outlet was the program, which involved not only contact with children but social events for the adult carers. Ms Plahn-Williamson described BQP as 'honest to a fault' and believed that he was genuinely motivated to understand the problems he has had and committed to ongoing therapy. She feels that he realises that he has made mistakes and is now 'embracing boundaries'. She assessed him as not vulnerable within the hospital environment but advised him against any contact with children outside this situation.
BQP gave evidence to the Medical Board explaining the circumstances during which he undertook examinations of children he mentored with the program and admitted sharing a bedroom with Child 1 because the child was scared at night. BQP told the Medical Board that he had not anticipated how this could be misconstrued.
In setting conditions for BQP's practice of medicine (namely to work only under supervision in a hospital approved by the Medical Board and to attend for treatment by a psychiatrist or psychologist), the Medical Board made the following comments in relation to BQP:
On his own admission, BQP has committed a number of boundary breaches and it is the view of the Inquiry that these matters are very serious. BQP is a doctor of some ten years standing and, as such, should have been aware that aspects of his behaviour were inappropriate, whatever his motivation.
[T]here was significant written evidence…of [BQP's] excellent clinical skills, communication skills, teamwork and commitment to teaching.
[BQP] impressed the inquiry as a man who is genuinely distressed by the allegations that have been made against him and one who is somewhat naïve for his age. Clearly, he has lacked understanding of boundary issues and the potential impact of his behaviour on children under his care. It is the view of the Inquiry that he remains somewhat lacking in insight but that this insight is developing and certainly that he is increasingly aware of the importance of professional boundaries.
[8]
Judgment of the Medical Tribunal of NSW (4 May 2010)
In 5 May 2009, the Health Care Complaints Commission ('HCCC') brought proceedings against BQP alleging that he had failed to maintain a proper professional distance from several children with whom he had social conduct. Each of the complaints related to alleged behaviour between 2004 and 2005:
that BQP failed to observe appropriate professional boundaries by conducting genital examinations of Child 1 in circumstances where he had a personal relationship with the child and the child's family (and failed to wear gloves when conducting the examinations); that he changed antibiotic medication for the child without informing the child's medical practitioners; that he failed to keep clinical records for the child.
that BQP inappropriately accessed hospital records for another child he had mentored;
that BQP, who was on duty at the hospital at the time, should not have conducted a sexual assault examination for a child who was known socially to him;
that BQP had failed to keep clinical records of his examinations of an another child.
The sexual assault allegation in relation to Child 1 was not considered by the Medical Tribunal of NSW ('the Medical Tribunal') except in the following aside:
It appears from the evidence before us that some time in 2004-2005 police investigated a complaint by [Child 1] about the genital examinations. From a partial record of interview before us and from the contradicted evidence from the respondent, we conclude that the police uncovered no criminal offence. If follows that [BQP] was never charged with any criminal offence. Nonetheless it does appear that the police investigation set off a chain of events which led to his employment being terminated.
From this narrative, it would appear that the Medical Tribunal was not provided with a copy of the retraction statement by Child 1.
BQP gave evidence before the Medical Tribunal, as did a specialist paediatrician, BQP's treating psychologist and the psychiatrists Dr Allnutt and Dr Lachter.
The Tribunal noted that Dr Allnutt had seen BQP once, on 27 January 2006 and provided a report in relation to BQP on 16 February 2006.
Dr Allnutt told the Medical Tribunal that he was unable to determine BQP's motive in relation to his contact with children.
Dr Allnutt expressed the following views in relation to BQP:
Whether or not he should have access to children is a difficult question to answer. Because if it's purely a boundary violation by altruistic means and not any sexual motive then I think that, you know, there's less concern. If the view is that it's a boundary violation driving by including, maybe, altruistic intent but also sexual motive, then I think there is greater cause for concern about having access to children and working with children. Now I can't answer that question; that's a factual issue, that's a matter for the tribunal.
Dr Lachter interviewed BQP on 2 and 16 September 2009.
Dr Lachter gave evidence that, in his opinion, BQP does not suffer from paraphilia.
Dr Lachter expressed the view that BQP could work in or with paediatric departments or with children. He told the Tribunal:
I think [BQP] is ready and I do think that the questions of public safety are not to my mind preventing him returning to paediatric practice.
In its judgment, the Medical Tribunal noted:
We should say that it was never suggested in these proceedings by the CC that [BQP] had a sexual interest in [Child 1] or indeed any other patient. Nor was it ever suggested by the HCCC that anything done by him was ever done with a view to sexual grooming. Indeed, the contrary is true.
Further the HCCC made this significant concession when the hearing began. Its counsel..said this
It is not alleged by the Health Care Complaints Commission that any physical examination or treatment provided by the respondent was provided for a purpose other than for a proper medical purpose.
The Medical Tribunal was not satisfied that BQP's conduct was serious enough to amount to unsatisfactory professional conduct. Instead, they found it to be professional misconduct. The Tribunal ordered that BQP's continual right to practise be subject to the condition that he only practise in a supervised position in a public hospital at the level of resident medical officer, that the NSW Medical Board be provided with reports at a three monthly interval, that BQP obtain the approval of the NSW Medical Board prior to undertaking any other practice as a medical practitioner, that BQP meet regularly with a supervisor; and that BQP attend for treatment by a psychiatrist of his choice.
[9]
Monitoring interview report dated 24 February 2014 at the Medical Council
From 2012 until December 2014, BQP worked as a trainee and Career Medical Officer at a rural hospital which will be referred to as 'Hospital 2'.
A concern was raised in relation to an examination performed by BQP at the hospital on a ten-year-old child on 2 April 2013. This concern was discussed at an interview with BQP and panel members of the Medical Council ('the panel') to discuss his compliance with conditions placed on his practice of medicine.
At interview, the panel raised its concern that BQP, as a surgical registrar, had assessed a child in the emergency department out of waiting order. BQP had once previously met the child in a community setting and had attended the emergency department that afternoon as part of his regular practice to check for potential surgical patients before the end of his shift. After initial review, he then attempted to pass over the care of the patient to another medical officer in the emergency department but resumed the patient's care in light of delays in the emergency department.
The panel counselled BQP in relation to his misjudgement in involving himself in the care of a child, out of waiting turn in the emergency department and without prior approval of the emergency department senior staff.
Following the interview, the panel recommended that BQP's conditions be reduced to allow him to practise at the level of registrar or above and that his practice conditions be relaxed to enable him to move to level 3 supervision with face to face meetings with his supervisor every six weeks (instead of fortnightly) supplemented by a report from his supervisors every three months.
[10]
Risk Assessment Report dated 19 June 2014 (referral dated 13 August 2013)
The risk assessment report by the Children's Guardian dated 19 June 2014 was triggered by a finding of sexual misconduct on the basis of the allegation by Child 1 that BQP had sucked the child's penis. The risk assessment report also considered those further allegations made by Child 1 against BQP to FACS, to the family mentoring program and to JIRT. It similarly considered information provided by two other children mentored by BQP, information provided by BQP in his police interview, and BQP's examination of a child in the emergency department of Hospital 2 in 2013.
Statements were also provided by BQP's mother and father. In his statement dated 15 October 2014, BQP's father confirmed that together with his wife and son, he accepted Child 1 into the family as part of the family mentoring programme. His wife washed and mended the child's clothes and they all participated in activities and outings with the child.
According to the father:
We encouraged [Child 1] to shower every evening before going to bed. This seemed to be a novelty to him. [Child 1] said that he was afraid to sleep alone in the guest room, so my wife and I allowed him to sleep in the spare bed in [BQP's] room. The doors to our bedroom and that of [BQP's] were always open during the night. We had a safety light plugged into the power point in the corridor between the bedrooms so that [the child] could orient himself if he had to go to the bathroom during the night.
As our whole family was closely supporting children in [the family mentoring program], I was in a good position to understand and observe [my son's] motivation and conduct. He was and remains highly idealistic and motivated to help people in need. Both he and our whole family have been deeply upset and affected by these allegations.
BQP's mother confirmed that the care for Child 1 was undertaken not simply by BQP but by the family as a whole. She confirmed that Child 1 slept in BQP's bedroom because he was afraid to sleep in the next bedroom alone:
He mentioned that at his home there were 7 people, 5 beds and they slept together in one or two bedrooms. That seemed to be his reason. Our bedroom door and [our son's] door were always open at night and during the day.
The last weekend [Child 1] was at our house, everything worked well as usual. [Our son] dropped him off at school on Monday morning and took his clothes to his home before going to work. The next thing we heard was that [Child 1] accused [our son] of assaulting him at a time when all of us were present in the house.
At no time did I have any reason whatsoever to consider that my son had behaved inappropriately with this child or with any child. [My son's] involvement in voluntary work with children was very much a family activity undertaken by the whole family.
I am well aware that [he] did leave himself open to criticism professionally in terms of crossing boundaries between his professional work and his voluntary work with children and I am aware that he has spent an enormous amount of time and effort over the past 10 years improving his knowledge and awareness of these issues.
The risk assessment report considered the views of the psychiatrist, Dr Allnutt, as formulated in 2006, that in light of the allegations of sexual assault against BQP, his actions displayed cause for concern.
The risk assessment report considered mitigating and protective factors put forward in favour of BQP, namely that his motivation was simply to help the children and that in 'going the extra mile' he had crossed professional boundaries. It is noted in the risk assessment report that BQP had been shocked that his behaviour could have been interpreted as having a sexual motive and that evidence from his psychologist, psychiatrists, and supervising doctors described him as honest and expressing the belief that his behaviour was not sexually motivated.
In its consideration of the evidence before it, the report concluded that 'given the high level of concern arising from the JIRT investigation and the opinion of Dr Allnutt, it is considered that BQP poses a risk to children. For this reason, a Decision bar is recommended.'
[11]
Statement of the vision of the Family mentoring program
The vision of the family mentoring program is set out in a document provided by BQP. The vision includes the encouragement of volunteers to co-create the program to provide children with regular respite on weekends, to create an extended family and non-judgemental friendship network and to make the relationship as much like a real family situation as possible.
According to the program:
Research has shown that often the difference between a child growing up to be a function or non-functional adult is that somewhere, sometime (irrespective of the length of time), he or she was accepted and received unconditional loving from someone.
[12]
The Director Medical Services
In a letter to the relevant Health authority dated 6 February 2012, the former Director Medical Services for Hospital 2 ('the Director') considered whether BQP's employment at the hospital would present a risk to the safety or well-being of child or adult patients:
I have considerable experience in assessing risks associated with medical practice from more than 14 year on the NSW Medical Board (now Medical Council) and from my regular work with the HCCC.
The issue of concern to this risk assessment, and that which led to the adverse findings.. in the Medical Tribunal is that he conducted genital examinations of a juvenile without a parent or guardian being present. And furthermore, in a hospital setting he performed a sexual assault examination of a juvenile he knew socially from his role in [the family mentoring program].
It is important to note that [the judge] stated in his findings that it was never suggested in the proceedings by the HCCC that [BQP] had a sexual interest in [Child 1] or indeed any other patient. Nor was it ever suggested by the HCCC that anything done by [BQP] was ever done with a view to sexual grooming. [The judge] stated that indeed the contrary is true.
Further the HCCC made this significant concession when the hearing began. Its counsel..said this:
It is not alleged by the HCCC that any physical examination or treatment provided by [BQP] was provided for a purpose other than a proper medical purpose.
For the purposes of this assessment it must also be noted that the expert witness for the HCCC prosecution stated that they were only 'mildly' or 'moderately' critical of [BQP's] actions because of the clinical circumstances surrounding the genital examinations. The expert for the matter pertaining to the sexual assault examination was only 'moderately' critical of [BQP] but this criticism was mostly focussed on the concern that the evidence may have been tainted because of the relationship between [BQP] and the patient.
I believe these important statements indicate the absence of any significant risk to children from [BQP].
That said, the hospital fully acknowledges that [BQP] did breach proper professional boundaries.
[Hospital 2] has formed the view that [BQP's] employment does not present a risk to the safety or well-being of child or adult patients.
Further, we have formed the view that he now has considerable insight into the concerns raised in the Medical Tribunal complaints and will not breach professional boundaries again.
The director wrote to NSW Health on 29 July 2013 with an update on BQP's progress in his training position with the hospital. He noted a marked improvement in BQP's work since his initial employment 12 months earlier but noted his concern that as a member of the surgical team review, BQP had attended to a teenaged boy waiting in the emergency department without first advising the doctor in charge. He saw the boy out of the order of priority and, due to the nature of the presenting symptoms, did a rectal examination.
In a reference supplied in response to the 2013 risk assessment for BQP, the director stated that BQP had never demonstrated inappropriate behaviour or abuse towards children. He did not consider BQP's examination of the boy to be grooming behaviour and noted that the boy's father was present during the examination, which had been medically documented.
In oral evidence before the Tribunal, the director told the Tribunal that he had read the findings of the Medical Tribunal in relation to BQP.
In relation to BQP's 2013 examination of the child, the director told the Tribunal that it was good practice for surgical registrars to check with the emergency department for possible surgical patients. The director said that this might be done by doctors about to go home to save them having to be called back to the hospital once again.
He told the Tribunal that any consultation by BQP on the night in question with the triage nurses would not have been documented in notes. The director told the Tribunal that such a lack of documentation did not mean that BQP had not spoken to anyone in the emergency department about it. He told the Tribunal that the doctors in emergency wouldn't have been upset by BQP picking up the extra work.
In relation to performing the rectal examination in the boy, the director told the Tribunal that its inclusion meant that the boy was given a 'complete examination.' If he were examining a medical student in relation to a patient presenting with the same symptoms, the director would fail the student for not performing a rectal examination. He recited the medical dictum that 'if you don't put your finger in it, you're likely to put your foot in it.'
He told the Tribunal that it would be taking a shortcut not to do a rectal examination and that many doctors try to avoid it if they can. He didn't agree that such an examination would be contra-indicated in light of the boy's age.
He agreed that he had been concerned by BQP's decision to see the patient out of order and told the Tribunal that 'a wiser person would not have done that to avoid the raising of concern.'
He described BQP as a valuable member of the hospital who had grown into a range of roles and who was committed to the hospital organisation. He did not believe that BQP presents a risk to children. He would have no hesitation in employing him without conditions.
[13]
Dr Lachter
In a medico-legal report dated 2 October 2009 and prepared for BQP in relation to proceedings before the Medical Tribunal, Dr Lachter, psychiatrist, considered the question of BQP's motivation in relation to his boundary transgressions with various children. In his list of sources of information relied upon, he listed the report of inquiry by the Medical Board and the report of Dr Allnutt dated 16 February 2006 but noted that in relation to the sexual assault allegation made against BQP by Child 1 he had not been given access to the confidential risk assessment prepared for BQP by Hospital 1.
In considering the motivation of BQP, Dr Lachter focused on BQP's actions in relation to Child 1, namely the carrying out the three genital examinations on the child, two while unaccompanied by the child's mother or other person.
According to BQP, Child 1 had been on the waiting list for the family mentoring program for a long time as he had been regarded as a very hard child to match.
BQP told Dr Lachter that Child 1 had a lot of behavioural issues:
I saw this was a child with a horrific background..I knew his mother had been stabbed by his father..I subsequently learnt three or four foster care placements had all ended in allegations of abuse..now he alleges abuse against me…for me not to have the slightest concern makes me feel I was gullible.
In considering BQP's possible motivation for his involvement with Child 1, Dr Lachter provided the following opinion:
[BQP] conveyed to me a sense of being determined that the apparently hopeless child be given a chance…There is an admixture of exaggerated self-importance and naivety in [this] approach, contributing to poor judgement. …[BQP's] objectively high degree of professional commitment is consistent with his own account of determination to assist the child…In my opinion, this zeal hinders a capacity for professional objectivity and appropriate detachment. Such a failure to hold to his own professional role represents a deficit of personality development: a failure of boundaries of self…In my opinion, although it does not of itself discount a sexual motivation, this analysis provides a plausible and coherent perspective form which to understand [BQP's] motivation.
Dr Lachter's most recent report for BQP is dated 1 March 2015 and was written in the context of the decision by the Children's Guardian to refuse BQP a working with children check clearance.
In considering BQP's examination of a child in the emergency department on 2 April 2013, Dr Lachter wrote:
[BQP's] account of the examination of the child is as follows. BQP at the time was working as a surgical registrar. BQP told me that his practice was to conduct a brief round of the Emergency Department near the end of the working day to see if there were cases which may require his assessment. BQP told me that on the round of 2nd April, 2013, at about 4pm, he noted a patient, a boy aged ten years old, screaming in pain, and writhing with apparent abdominal distress. The patient was accompanied by his father, and had not been seen yet by ED staff. BQP recognised the child from an encounter when BQP had begun his association with St John's Ambulance service. This encounter amounted to a brief facial recognition. The two had not exchanged names, or spoken to each other, according to BQP.
The clinical setting included BQP's awareness that the X-ray department closed at 5pm. He was also aware that the hospital was reluctant to allow unrostered over-time. BQP also told me, in response to Dr Smith's concerns as to seeing a patient 'out of the order of priority' (quote from his letter of 29l July, 2013), such priority applies to the ED doctors, and BQP's role as noted was of surgical registrar. Furthermore, according to BQP's account to me, given that this patient had abdominal pain, BQP considered that as surgical registrar, this case would most likely be referred to him anyway. After brief initial appraisal of the patient, BQP told me that he formed a provisional diagnosis of constipation, and handed the case over to the ED staff, with his clinical notes, and suggesting that the child required a PR (per rectum) examination, and an abdominal X-ray.
BQP told me that about one hour later, the child had not been further assessed, and remained in acute pain. The doctor in charge of the ED requested that BQP take over the case, which he agreed to do. The obvious rationale for this request was that the child represented a surgical case, that BQP had formed an initial clinical impression, and that the ED staff was clearly too busy to have attended to the child further. BQP told me that because of the concerns over his previous boundary problems, he had not himself wanted to do the PR examination. However, this concern of his conflicted with the clinical indication in such a case that a PR should be done. BQP told me that in then carrying out further clinical examination of the patient - to include the rectal examination - he ensured that a chaperone be present, and obtained consent from the child's father, and the child himself was also told about the procedure by BQP.
From what BQP told me, the rectal examination was a definitive examination to confirm the presence of faecal loading in the lower rectum. According to BQP, such loading may not be clear on an abdominal X-ray alone. Furthermore, the treatment for acute constipation is an enema, by definition inserted per rectum. BQP explained to me that such a treatment can itself be challenging for the patient, and its effects can be harmful if constipation is not in fact present. In other words, the rectal finding allowed a clear risk-benefit analysis of the use of an enema to be weighed up, in my understanding of BQP's account. As it turned out, faecal loading was present, and the patient was greatly helped by the enema in what amounted to a rapid cure of his presenting complaint of abdominal pain.
In eliciting the above account from BQP, I found his clinical reasoning and account of his behaviour to be straight-forward and clear, although I kept in mind that I am not myself experienced in surgery beyond my medical student and early resident years. I asked him if his motivation in carrying out the rectal examination was at all sexual, and he told me that it was not. In support of this, he had initially sought to hand the patient over to the ED staff, but had been brought back to clinical involvement by the ED director. I asked him whether in the delay between initially seeing the patient and later returning to take over his care he had experienced a sexual excitation of any sort, and he told me that he had not.
I understand from BQP's account that he was thanked by the child and the child's father for his help, saving them from further delay while the child remained in the ED in pain and untreated for a common and easily diagnosed and treated condition, namely constipation.
I have also reviewed the contemporaneous clinical notes made by BQP at the time of his involvement with this case. From my reading, his clinical notes confirm the details as he described them to me.
There does remain the matter of a pre-existing encounter with the child. However, in its brevity, this contact did not entail any familiarising of a social nature, and from what I understand, no conversation was had between the two. From BQP's account to me, the encounter amounted to a noting of a face in the street in passing.
I note that the notice of final decision refusing working with children check clearance, dated 19th December, 2014, and signed by Louise Coe, refers to the rectal examination as having been ".. .deemed to be inappropriate." However, from my reading of the reference from [the director] dated 14 October, 2014, where the notion of an "inappropriate" examination is raised, this notion is tempered by the added specific context: ".. .1 [The director] only felt it was inappropriate as he had previously had allegations made about his behaviour with a young male patient and I felt he should have avoided this situation if at all possible."
[The director] notes also: "I felt it [the rectal examination] suggested a lack of insight." From the above, I disagree with the conclusion that BQP' behaviour suggested a "'lack of insight" when the full clinical picture is considered. In my opinion, BQP's handling of the case demonstrates thoughtful consideration and insight, weighing up multiple factors including the patient's well-being, the workplace context of a busy ED. and also his own vulnerable position in terms of boundary issues. He had tried to hand the case over to ED but was called back to attend to the patient further, and in that context he arranged a chaperone for the clinical examination, including the rectal examination.
As an indication of BQP's development of insight and recognition of appropriate clinical boundaries, Dr Lachter describes a later clinical situation arising in his work at Hospital 2 in which BQP was asked to attend to the sixteen-year-old son of a hospital nurse who presented with testicular pain:
In that situation, BQP told me that he refused the surgeon on call's demand that he, BQP, examine the adolescent's genitals. In BQP's words to me: "The surgeon was pissed off with me, but I stuck to my position. He [the surgeon] told me 'you're a doctor in a small town so you have to examine patients like this...'" In refusing to obey the surgeon, BQP told me he had reasoned that, given this adolescent was himself reluctant to be examined, and given that he would in any event require a subsequent examination by the surgeon, it was prudent to refuse to carry out the examination, bearing in mind his own boundary problems in the past for which BQP remains under scrutiny, and bearing in mind that the patient's mother was a nurse at the hospital, raising further boundary complexities. In my opinion, from his account to me, this incident demonstrates a maturing of BQP' clinical judgment, insight and professional capacities including awareness of boundaries on a number of levels:
His insight was clearly intact and robust enough to withstand the demands of the surgeon in his own interests given his more or less precarious position as to past boundary transgressions.
Further, and in keeping with this insight, his previous attitude of "going the extra mile", which amounted to responding to requests without due pause, had given way to a more thoughtful self-restraint.
More specifically, he had attained that practical capacity to set boundaries forcefully, in this case by saying 'no' to the demands of the surgeon. It is also significant that BQP, while at the same time bearing his own position in mind, also carried a sensible awareness of the best interests of the patient, in not subjecting the reluctant adolescent to a burden of an added genital examination.
To add weight to the above, I am aware that such refusal as BQP made in the face of a direct demand from a consultant, in this case the surgeon, is a troubling and difficult stance for any junior doctor to take. In my opinion, it takes some courage, and a robust sense of practical and clinical options. In summary, in my opinion, this incident demonstrates the maturing of BQP as a clinician, and of the insight that he has achieved around boundary issues and his awareness of personal and professional vulnerability in such conflicted circumstances. Such insight in my opinion amounts to more than a superficial, glib or intellectual acceptance, but a depth of awareness which can be referred to as gut-level insight. In my opinion, it is significant as a protective factor for any hospital choosing to employ him that this insight was achieved and held to under stress.
In considering the allegations of sexual assault made against BQP, Dr Lachter set out the following concerns in relation to the documentation before him:
Contained within the three volumes of documents relied upon in writing this report were various police records of interview and a NSW Police Force sex crimes squad report, investigating an alleged sexual assault of a child.
I note also that according to the Risk Assessment Report written by Andrew Mills and dated 8th May, 2014 "the information from FaCS indicates that the allegation of sexual assault was considered substantiated but resulted in no criminal charges..." (page 9 of Volume One)
However, despite perusing various indexed documents from FaCS, I was not able to locate the specific FaCS information which "...indicates that the allegation of sexual assault was considered substantiated..." In my opinion, such an opinion as to 'substantiation' is highly significant and I would consider it important in understanding the behaviours and motivations of BQP to have available the basis for the FaCS opinion referred to by Mr Mills.
The NSW Police Force report of the Child Abuse Squad - which from what I can gather considers the evidence contained in the transcript of interviews of various children and of BQP in May, June, and July 2005 - determined that: "When considering this matter police feel the victim is not credible and is unable to explain vital aspects of the investigation. Legal advice has been sought from [redacted] who is also of the belief that their (sic) is no likelihood of any successful prosecution in this matter."
The NSW Police report noted "The Health Dept will investigate certain breaches that the doctor has made admissions to during the ... interview."
In my opinion, the elapse of a significant period of time, namely approximately ten years, from the onset of this matter to the present bears further consideration as there has been no further indication of any sexual assault or paedophilic behaviour by BQP as far as I am aware. In other words, in my opinion, this duration of time without further police interest in the matter is consistent with my original opinion that BQP has not been behaving with paedophilic motivations.
From what I can gather in my review of the documents, the strongest indication of what may be interpreted as a sexually motivated behaviour towards children was BQP' admitting to giving children with whom he had been involved in the Aunties and Uncles programme a "good night" kiss on the cheek and mouth, as well as hugs, and telling them that he loves them, and occasionally asking the children to respond with saying they love him back. This material is referred to on page 334 of the documents, and is part of the police transcript of interview of BQP dated 19th of July, 2005.
In the context of BQP's personality and boundary disturbances alluded to in my earlier report - in effect his belief in "going the extra mile" and various motivations and fantasies around rescue, I am of the opinion that these behaviours, as concerning as they are, do not constitute a sexual assault, and are not in my opinion sexually motivated. In my opinion, it is significant that BQP confessed to these behaviours in a clear and forthright way in the transcript of interview with the police.
Dr Lachter provided the following concluding remarks:
In my opinion, BQP is fit to continue to practise as a doctor. From my review of his progress over an arduous clinical role at [Hospital 2], I regard BQP as having demonstrated a proper level of clinical competence. More specifically from what I can gather his maturity around boundary issues, interpersonal awareness and insight has become further developed.
In my opinion, the incident of a rectal examination of a child at [Hospital 2] from which BQP's safety and suitability to work with children has most recently been brought into question by the Office of the Children's Guardian does not constitute a concern as to his fitness to practice, or concern as to his awareness of boundaries, nor does this incident indicate to me a paedophilic or grooming motivation in BQP.
In my opinion, this incident is qualitatively different from his past boundary breaches: there was no blurring of boundaries between professional and personal engagement, no seeking out of vulnerable young males to support and befriend, and from what I can gather and in my opinion no behaviours of concern whatsoever. In essence, my understanding of BQP's current functioning is that he has in fact matured from the naive and overly dedicated doctor that he had formerly been.
I do not believe that BQP poses risk or danger to children if he is permitted to work with children in his role as a hospital medical practitioner. I add that - as BQP has given up his earlier ambitions in paediatrics - his exposure to have children under his care is considerably lessened in his present role. I suggest that it would be prudent to have his continued clinical role supervised as it has been at [Hospital 2] in order to monitor and maintain his progress as a mature clinician.
In oral evidence before this Tribunal, Dr Lachter described paedophilia as the disturbance of a sexual drive in that it is directed to children. He described it as, typically, a lifelong and powerful direction that is established in adolescence or early adulthood.
Referring to the allegation that BQP had sexually assaulted Child 1 by way of fellatio, Dr Lachter stated that, assuming BQP were a paedophile, it would be unusual for such an allegation to first be made as such a late age, i.e. when BQP was 38 years old. This was also unusual that in light of BQP's extensive history with the family mentoring program, in which he had extensive involvement with children, without incident.
Dr Lachter agreed that since he first met BQP in 2009, he has demonstrated a marked improvement in his conduct. This, Dr Lachter believes, is evidence that BQP's underlying motivation was never sexual. This is because sexual orientation is fixed and paedophilia cannot be treated by counselling. Instead, it needs to be treated by medication to lower testosterone.
By contrast, BQP has achieved a further clinical level of ability, now appreciates boundaries and has accepted that he is not 'the only doctor who cares'. Although he is not an outgoing person, he has developed a social network in the rural town in which he lives and has developed a clinical respect amongst his peers. Dr Lachter described BQP's work in the regional hospital as very stressful and notes that BQP has managed this stress well.
In answer to the question as to whether BQP has any paedophilic traits, Dr Lachter queried 'what he is doing with his sex drive.' He noted that this might be explained by BQP throwing himself into his work and by his not having a strong sex drive. It could also be explained by the fact BQP is introverted and anxious socially. Relationships are stressful and this might be another reason for his reluctance to enter into an intimate relationship.
He agreed that it was of concern that BQP had allowed boys to sleep in his room. He agreed that he could be seen to be grooming. He agreed that it is possible to both be a paedophile and have a low sex drive. He denied that BQP's behaviour could be seen as 'clumps of sexual behaviour.' Generally, such behaviour would manifest itself over a period of time in a binge/stop/binge/stop pattern.
He disagreed that hiking and bike riding with children was indicative of a sexual motive. Rather, he expressed the view that BQP was operating as a play figure with the boys. He agreed that it may nevertheless bring in boundary issues.
In relation to the medical examinations by BQP of Child 1, Dr Lachter expressed the view that although they constituted a lack of boundaries, they didn't strike him as 'a particularly sexually motivated series of incidents.'
He told the Tribunal that:
It does strike me that this fellow was hell-bent to go the extra mile, and that he was someone incapable of saying no, possibly at the time against his better judgement. He is now learning to deal with boundaries. It doesn't strike me as particularly sexual: I've treated boils and buttocks - it doesn't conjure up a sexual experience. I'd be saying that [BQP] is immature. It is not sexual or grooming.
When asked to consider the 2005 complaints made against BQP by the HCCC together with the 2013 report in relation to BQP's examination of a child in the emergency department of Hospital 2, Dr Lachter states that:
I think that is qualitatively different. Within the hospital setting, he is the doctor covering surgical cases as they present.
Under cross-examination, Dr Lachter agreed that, given the lengthy process he has undertaken to achieve mature boundaries, he would have some concerns about BQP working other than as a medical practitioner. He confirmed his opinion that BQP is not motivated by paedophilic desires and that he does not believe that BQP poses a risk to children.
[14]
BQP's medical supervisor at Hospital 2
In a reference dated 11 March 2014, BQP's medical supervisor at Hospital 2 ('the supervisor') noted BQP's failure to understand the barriers that must exist between registered medical practitioners and the public. He also noted 'a certain lack of guile and worldliness in [BQP]' but stated that 'this is not a bad thing.'
In his reference he advised that BQP was progressing well, remains aware of the nature of his errors, is determined not to repeat them and appears to pose no threat to children.
In a further reference dated 15 October 2014, the supervisor stated:
I have never witnessed anything but kindness in [BQP's] dealings with other people. There have been no reports of any inappropriate behaviour toward children since he has been here, specifically anything which could be interpreted as sexual grooming.
BQP's supervisor told the Tribunal that BQP was appointed to the position at Hospital 2 because he was deemed to be a suitable person to do the work. He agreed that any consideration of risk would have weighed heavily in the decision to appoint BQP. He told the Tribunal that his paramount concern had been for the patients and for the reputation of the hospital. In making this assessment, he had considered the sanctions imposed on BQP by the medical board.
He described BQP as lacking in confidence when he came to the hospital and keen to learn. BQP's supervisor told the Tribunal that he had been furious about the incident in the hospital in 2013. This was because the hospital had got rid of 'the last of its medical rogues and I didn't want any more.' He is satisfied that BQP is not such a rogue. Since that incident, he and BQP have rebuilt their working relationship. Apart from that one lapse of judgement, BQP's work has been thoroughly reliable and his relationship with patients appropriately cautious.
He described BQP as humble and told the Tribunal that compared with people of his age, he seems unworldly in his personality. He does not believe him to be a danger to children because he has insight into what is required of him.
He accepted BQP's explanation that he had visited the emergency department of the hospital on 2 April 2013 to check for potential surgical patients. He agreed that once BQP had seen the boy in question, he needed to do a thorough job. In these circumstances, the supervisor believed the rectal examination and the ordering of an X-ray to have been appropriate.
He told the Tribunal that BQP was known to be a helpful person. Given that theirs in a small community, he was not surprised that the boy in question would have recognised BQP. It is his view that BQP's examination of the boy was not a deliberate plan but was, instead, a lapse of judgement and an innocent error. He doesn't believe that BQP is a risk to children or to the public. Had he believed that, the supervisor told the Tribunal that he would have 'shown him out the door.'
He was aware from the proceedings before the Medical Board that BQP had been accused of sexual assault in 2005, that the child had emotional problems and the matter had not been proceeded with by the police. He noted that in its consideration of matters before it, the Medical Board has a very high standard of care to patients and the public in general and would have been mindful of this in its decision to allow BQP to continue to treat all patients, including children.
If BQP is granted a working with children clearance check, the supervisor would encourage him to complete his specialisation in remote medicine. If he were to be part of the flying doctor service, as a registrar he would always be supervised.
[15]
BQP
In a lengthy statement dated 18 February 2015, BQP described himself as the son of migrants who, having suffered hardship during the Second World War, later focused their lives on assisting those who were disadvantaged or in trouble. This was an ideal that BQP later aspired to when he left school to study medicine.
In 1989, and on the suggestion of a member of BQP's church, he became involved in the family mentoring program that provides mentorship and care to children from underprivileged backgrounds. During the next fifteen years, BQP and his parents (with whom he lived) were involved in providing care to, in all, eight children in the program: six boys and two girls. According to BQP, the children would sometimes stay over at the home of BQP and his parents and his mother who provide meals and other support to them.
According to BQP
Between 1989 and 2005 I was never made aware of any complaint or concern about my voluntary work..In January 2005 I was a finalist [for a community award] and it was my understanding that this was a nomination endorsed by [the family mentoring program].
On completion of his medical studies, BQP worked as an intern, a medical officer and a paediatric registrar although he did not successfully complete his fellowship examinations to become a paediatrician.
From 2012 to 2014, BQP worked at a Hospital 2, first as a rural generalist trainee and later as a career medical officer.
BQP set out the circumstances of his examination on 2 April 2013 of a boy in the emergency department of Hospital 2. On that day, BQP was one of the surgical registrars on duty at the regional hospital. That afternoon, he went down to the emergency department to check for potential surgical patients, that is, emergency patients that could potentially involve the surgical team that evening. He found a child screaming in pain and when he asked a staff member, was advised that the child had not been assessed. BQP performed an abdomen examination on the child and documented it in the hospital notes. At some point he realised that he had met the child once before, in a group of adults and children at a St Johns Ambulance fun day. He did not find this unusual given that the community of the town was small.
He stated:
I assessed the child as being a potential surgical patient. There were no other surgical patients at the time. For that reason I attended to the child even though he was not next to be seen by the doctor on duty in [the emergency department].
I recorded all my actions and observations in the child's progress notes. I set out the steps necessary for the treatment of the patient which were: X-ray, EMLA (i.e. application of an anaesthetic gel to the forearm in case it was necessary to insert a cannula); probable need for examination per rectum and an enema, review, urinalysis; to be discussed with [doctor] in relation to formal assessment in [emergency department].
According to BQP's training, a rectal examination is standard procedure for the treatment of severe abdominal pain.
After taking the X-ray, BQP returned to the emergency department to find that the child had not yet been formally assessed in the emergency department. The senior doctor asked BQP if he could go ahead with the examination of the child because the other doctors were busy.
According to BQP
I was not the doctor on duty in [the emergency department] but in my experience at [the regional hospital] other doctors including surgical registrars did on occasions 'lend a hand' to the [emergency department] and particularly when there were potential surgical patients.
The rectal examination was conducted following an explanation and with the consent of the father and in the presence of a chaperone. The examination is recorded in the hospital notes. Hard faeces were found, with nothing else remarkable.
After the examination I prescribed the boy medication and he stayed in [the emergency department] for a short time. He had a bowel motion and thereafter an uneventful recovery.
BQP's supervisor was concerned by the examination and how the event could be misinterpreted given BQP's background and the fact that he wasn't rostered in the emergency department at the relevant time. As a result BQP's supervisor reported the incident to the Medical Council where he was counselled and advised that any further matter could result in a formal complaint being investigated.
Since this time, wherever possible, BQP has avoided performing any intimate examinations on child patients at the hospital.
In relation to the allegations made against him, BQP offered the following information:
he allowed Child 1 to sleep in a separate bed in BQP's room because he was frightened to be in the guestroom;
he gave Child 1 multivitamins to supplement his poor diet at home. He didn't advise the mother because he didn't want to embarrass her. He accepts that this was inappropriate and that he should have discussed it with her;
he admitted that he allowed children to steer his car on private property and that the coordinator of the family mentoring program did not appear to disapprove of this. He has not since allowed nor will he again allow a child to steer his car;
he denied ever being in possession of pornographic material;
he admitted providing antibiotics to a child he was mentoring in substitution for antibiotics prescribed that were not appropriate to treat the relevant infection;
he denied watching Child 1 in the shower at the holiday house, stating that because the hot water could be quite hot at the holiday house, he would turn the taps on for the child to minimize the chance of a burn injury before leaving the bathroom, sometimes taking the child's clothes with him;
he denied yelling at the child when he was suspended from school but agreed that he had expressed his disappointment and discussed strategies the child could use in the future;
he denied ever seeing Child 1 with his pants down in bed or being made aware of this;
he denied the allegation made that he had sexually assaulted Child 1. He denies ever having been to the pool referred to by Child 1.
he stated that the BB gun was a toy kept at the family home (not at the holiday house) that did not fire ball bearings. He denied pointing the gun at the child's head or pretending to shoot the child. He stated that the machete was a garden tool stored in the garage. He denied ever pretending to cut Child 1's throat with it.
he denied getting changed in front of Child 1 and doesn't know what is meant by 'looking at him the wrong way.'
he denied hanging Child 1 over a cliff and jerking him back again;
he admitted allowing another child the choice of sleeping in the second bed in his room and acknowledged that he should have arranged for the child to sleep in his own room;
he admitted to hugging and kissing Child 2 (on the forehead) to comfort him. He noted that the child's father had been killed by another patient whilst in the mental health unit of a hospital;
he agreed that when Child 2 had come to him distressed, on the anniversary of his father's death, he had allowed the child to get into his bed. He stated that it was the only time this had occurred that 'at the time it was clearly in the context of trying to reassure a very distressed child' and agreed that he should not have allowed it;
he agreed that he had given gifts to the children he mentored at Christmas and on their birthdays, many of which were of a practical nature. He discussed the giving of presents with the mother of Child 1 and with staff at the family mentoring program;
In oral evidence before the Tribunal, BQP agreed that he had been aware of the policy of the family mentoring program that children were to sleep in rooms of their own. He also agreed that Child 1 had slept in the spare bed in BQP's bedroom on many occasions. This was because the child said he was scared to sleep alone. He agreed that having the child sleep in the spare bed in his room was a breach of boundaries and that it occurred in breach of the rules of the family mentoring program. He agreed that it had been an error of judgment on his behalf not to insist that Child 1, and other children, sleep in the spare bedroom.
He agreed that he had first met Child 1 when he was a paediatric registrar and that the Child had asked to be mentored by him. BQP liaised with the program and discovered the child was on the waiting list for the program. He was advised that the child had been hard to place. Once he began mentoring the child, he would see him once or twice a week.
He agreed that he had met other children he had mentored through the hospital. He agreed that this could be seen as a blurring of appropriate boundaries. He agreed that he had given Child 1 antibiotics to replace those the child had been prescribed (wrongly, in BQP's view). Although he did not note this on the child's hospital records, he did advise the doctor in charge of his actions.
He agreed that he had inspected Child 1's penis at the mother's request and following the child's earlier admission to hospital for an infection to the penis. He agreed that on a later occasion, he had checked boils on the child's bottom. He denied treating the child because he was attracted to him.
He agreed that he had allowed some of the children to drive his car on private property. He showed Child 1 the toy gun they kept with sporting equipment at the family home but told him that it was not something to muck around with. He agreed there was a machete amongst the family's gardening tools but denied showing it to Child 1. He agreed that he became a contact at the child's school and that he would sometimes drop the child to school.
When asked whether he wanted to be father-figure to the child, he replied that he cared for the child. He agreed that he had kissed the child, hugged him and told him he loved him. He explained that his is an affectionate family and he simply treated the child as he treated the rest of his family. He now understands how this could be misconstrued. He agreed that he became upset when the child decided not to continue tutoring with BQP. He denied that this was because he had an attraction to the child.
He agreed that he had given vitamin tablets to Child 1. He didn't tell the mother about this because he didn't want to embarrass her by suggesting she wasn't a good mother.
He could not explain why Child 1 said that he had woken with his pyjamas pants down to his ankles.
He agreed that he had examined a child in 2013 whilst he was working as a surgical registrar in the regional hospital. The child had attended the hospital with his father and had been screaming in pain when BQP went to the emergency hospital to check whether for potential surgical patients. He told the Tribunal that he had asked the nurse on duty if the child had been seen. As the child was the only potential surgical patient there, he interrupted the order of priority in the emergency department to check him. When he returned to the emergency department a little later and the child still hadn't been seen, the doctor in charge of emergency asked BQP to examine the child. He agreed that he should have asked permission to review the child.
[16]
Mr Burwood for the applicant, BQP
Mr Burwood noted that in refusing BQP's application for a working with children check clearance, the respondent relied on a finding of sexual misconduct in accordance with the provisions of schedule 1(2) of the Act. According to the respondent, the sexual misconduct in question was the sucking of the penis of Child 1 by BQP.
According to Mr Burwood, such a finding cannot be sustained by the Tribunal for the following reasons:
BQP denied sexually assaulting Child 1;
Child 1 signed a retraction statement withdrawing the allegation;
Child 1's retraction statement was endorsed by his mother;
Notes by the NSW Sex Crime Squad Report taken after a 3rd interview with Child 1 disclose that 'after much discussion the child signed a retraction statement in order to cease any further investigation at this time';
The police record in the matter concludes that 'when considering this matter police feel the victim is not credible and is unable to explain vital aspects of the investigation.'
Notes by JIRT investigating officers stated that Child 1 changed his version of events during interview and provided conflicting contextual detail;
No charges have been laid at any time by the police against BQP. He has never been the subject of criminal proceedings. He has no criminal record;
Although a boundary issue arose in April 2013 and was investigated, no sexual misconduct was found;
BQP has been assessed by Dr Lachter who accepted that he would remain subject to conditions in his medical practice and agreed that this was appropriate, but found that he did not pose a risk to children. Rather than being concerned by any risk posed by BQP, Dr Lachter's concern was the length of time it had taken BQP to mature;
That whilst FACS stated that the allegation by Child 1 was 'substantiated' there is a lack of information as to the basis for that finding. In particular, there is no reference to consultations made or to any statements or interviews considered. Furthermore, there is no reference to the fact that the allegation was retracted by Child 1. For these reasons, Mr Burwood submits that the finding by FACS that the allegation is 'substantiated' is highly questionable.
In its judgment, the Medical Tribunal stated that:
We should say that it was never suggested in these proceedings by the HCCC that [BQP] has a sexual interest in [Child 1] or indeed in any other patient. Nor was it ever suggested by the HCCC that anything done by him was ever done with a view to sexual grooming. Indeed the contrary is true.
Further, the HCCC made this significant concession when the hearing began. Its Counsel Mr Britt said this: It is not alleged by the HCCC that any physical examination or treatment provided by [BQP] was provided for a purpose other than a proper medical purpose.
In relation to the termination of BQP's employment at Hospital 1, Mr Burwood noted that whilst the risk assessment report by Hospital 1 refers to the sexual assault allegation, it did not consider the retraction of the allegation.
Mr Burwood also noted that despite the warning letter written to BQP by the Medical Council on 12 June 2013, by 25 February 2014, BQP's conditions had been eased such that he was allowed to practise at the level of Registrar or equivalent (rather than at the level only of Resident Medical Officer), with supervisory meetings every 6 weeks and a report provided to the Medical Council on a quarterly basis. These conditions remained in place until BQP was informed in December 2014 that the Children's Guardian had refused to provide him with a working with children check clearance.
In light of the evidence presented by the doctors from Hospital 2, Mr Burwood submitted that it was clear that the hospital was rigorous in minimising any risks to the public and to the reputation of the health system generally.
Mr Burwood submitted that in light of the evidence before it, the Tribunal should accept that BQP is a humble and honest man who gave his evidence in a straightforward manner and who is prepared to admit to his failings and to accept personal responsibility for them.
Mr Burwood submitted that it has now been ten years since the events took place leading to the investigation of BQP for the breach of professional boundaries and that he has learnt from this.
Mr Burwood drew the Tribunal's attention to the following sections of the second reading speech for the Child Protection (Working with Children) Bill 2012:
Any assessment trigger, whether a criminal matter or a disciplinary matter, must be able to sustain an appealable bar against working with children. There are two conditions that need to be met to achieve this. First, the investigation of the conduct must be sound and must have taken into account the principles of natural justice; and, second, the conduct must be of a serious nature and must have actually occurred. Unsustainable allegations will not sustain an appealable bar. Only employers whose investigation practice meets the first condition will be reporting bodies that report disciplinary matters. They will be obliged to do so by law….Only sexual assaults, sexual misconduct and serious physical assaults have been identified to date as meeting the second part of this requirement. The range of matters to be reported may be extended by regulation.
[17]
Ms Hartstein for the respondent
Ms Hartstein submitted that the withdrawal of the allegation of sexual assault by Child 1 did not mean that the allegation itself was false.
In her submissions, Ms Hartstein noted the concerns expressed Dr Allnutt in 2006 that BQP 'may have an underlying paedophilic drive.' Ms Hartstein acknowledged Dr Allnutt's recognition that an alternate motivation may be an altruistic desire to give and to commit time to those less fortunate but also noted his view that 'whilst this may be a plausible explanation, it should be viewed cautiously in the circumstances where an allegation of sexual assault had been made.'
Ms Hartstein noted that when asked about his level of suspicion of BQP, Dr Allnutt stated that 'in the presence of an allegation of sexual assault, [BQP's] preoccupation with children, many aspects of his behaviour with children, his lack of significant adult relationships, would lead him to be highly suspicious. '
She noted Dr Lachter's opinion that BQP was immature and his concern that BQP should have shared a bed with a child. It is her view that Dr Lachter's comments that conditions should remain in place for BQP imply that BQP is a risk to children.
In considering whether BQP had paedophilic tendencies, she submitted that 'just because he doesn't act out of them doesn't mean he doesn't have them.' As evidence of this, she referred to the fact that BQP had 'kissed children on the mouth.'
Ms Hartstein disputed the submission that BQP is honest, submitting that he lied in his evidence when he said that he had spoken to a nurse prior to seeing the boy in emergency. Furthermore she submitted that if the Tribunal were to accept that the sexual assault of Child 1 had occurred, the Tribunal would then also find that BQP was lying in his denial of it. It is her view, however, that the Tribunal does not need to come to a decision as to whether the sexual assault actually took place. Rather, the Tribunal should consider the allegation and its ramifications.
Ms Hartstein reminded the Tribunal that whilst the supervisor and the director were supportive of BQP, neither had access to details of the sexual assault allegation. She also submitted that the doctors were not, themselves, qualified to say that BQP does not pose a risk to children within the general community.
She also noted the views of NSW Health expressed in a letter dated 2012 that there were 'some risks relating to BQP's record' requiring a need to consider the hospital's capacity for 'supervising and supporting this applicant and managing risk in your organisation and within the job itself when you make your employment decision.'
Ms Hartstein noted that once BQP has a working with children check clearance, he will be able to work in any capacity with children as conditions cannot be placed on the grant of a working with children check clearance.
Ms Hartstein submitted that the Tribunal should have the following concerns in relation to the 2013 examination by BQP of the child in the emergency department of Hospital 2:
he saw the child out of order and failed to advise doctors in the Emergency Department that he had done so;
in the circumstances, a rectal examination was both contra-indicated and unnecessary;
the child was already known to BQP;
the examination of the child had occurred following previous boundary issues considered by the Medical Tribunal in 2010.
Ms Hartstein agreed that both a nurse and the boy's father had been present at the time of the rectal examination and that there was no suggestion that BQP had acted improperly.
Ms Hartstein submitted that on the evidence before it, the Tribunal could not be satisfied that BQP does not pose a real and appreciable risk to children or young people and, because the safety, welfare and well-being of children is the paramount consideration, ought to find that the correct and preferable decision is that the application be dismissed.
[18]
FINDINGS AND REASONS
The Tribunal "must consider" those factors set out in section 30 (1) of the Act in determining an application under Part 4 of the Act, which includes this application. The Children's Guardian in determining the risk assessment "may consider" matters set out in section 15 (4) of the Act which are more aptly descriptive of that process than section 30 (1) of the Act. It is relevant to note that the factors contained in both subsections address the same considerations expressed in slightly different language. Since the Tribunal is conducting an administrative review by reason of s27 of the Act it appears appropriate to have regard to both s30 (1) and s15 (4) considerations. That would fulfil the requirements of both sections, taking into account the nature of the administrative review.
The evidence will be considered under each of the following subheadings. Each of the subheadings combines the considerations under section 15 and section 30 of the Act.
[19]
(a) The seriousness of the offences with respect to which the person is a disqualified person or any matters that caused an assessment and a refusal of a clearance or imposition of an interim bar
In a letter dated 11 March 2015 from the respondent to BQP, the respondent confirms that 'the sexual misconduct which was the subject of a finding by a reporting body for the purposes of schedule 1(2) of the Child Protection (Working with Children) Act 2012 was the sucking of the penis of the Child 1 by BQP.'
According to the second reading speech for the bill that became the Child Protection (Working with Children) Act 2012, any assessment trigger must be able to sustain an appealable bar against work with children. This requires two conditions to be met:
firstly, that the investigation of the conduct must be sound and have taken into account the principles of natural justice; and
secondly, that the conduct must be of a serious nature and must have actually occurred - unsustainable allegations will not sustain an appealable bar.
On the evidence before me, I am not reasonably satisfied that BQP sucked the penis of Child 1.
The allegation was made by Child 1 during an interview with JIRT on 10 June 2005. In a further interview between JIRT officers and Child 1 on 17 August 2005, notes from the investigation advise that Child 1 had changed his version of events, including when the sexual assault had taken place and the contextual background of the assault. The notes advise that Child 1 was unable to explain information by other witnesses about lies Child 1 was said to have told. Child 1 then requested that the investigation be stopped.
On the same day, Child 1 signed a police statement withdrawing the complaint of assault made to the investigating officer of JIRT on 10 June 2005 and stated that he did not want police to proceed with an investigation into the matter. Child 1's mother signed the statement as a witness.
Notes dated 17 August 2005 and attached to the statement refer to several changes made by Child 1 to his evidence and conclude that 'after consideration the victim is not competent to give evidence in court. Legal Advice suggests their [sic] is not likelihood of a successful prosecution.'
In addition to this, a report into the matter by the Sex Crimes Squad states that 'when considering the matter police feel the victim is not credible and is unable to explain vital aspects of the investigation.'
On the basis of this information, I make the following findings. Child 1 made an allegation of sexual assault against BQP. On further questioning, Child 1 changed his version in relation to the time of the assault and its contextual background. Child 1 then signed a written document witnessed by his mother, stating that he was withdrawing the allegation. In notes by police, the document is referred to as a retraction and Child 1 is assessed as being both not competent and not credible. Legal advice to the police is that there would be no likelihood of a successful prosecution. The investigation has not proceeded since Child 1's retraction of the allegation.
Notes by FACS stated that the allegation was 'substantiated.' There is, however, no information before me to explain the basis on which this finding was made. Indeed, the information before me is that an allegation was made; Child 1 changed his version of events; Child 1 signed a statement, signed by his mother withdrawing the allegation; notes by police express the view that Child 1 is neither competent nor credible and the investigation does not proceed. There is nothing in the information before me to substantiate what is otherwise simply an untested and subsequently retracted allegation by a child viewed by the investigating JIRT officers not to be credible.
In light of the circumstances set out above, I am satisfied that Child 1's allegation that BQP sucked his penis is unsustainable. On the evidence before me, I am satisfied that the behaviour alleged - that BQP sucked Child 1's penis - did not occur.
The following further matters were considered in the risk assessment for BQP:
boys mentored by the BQP shared a bedroom with him;
he allowed the boys to drive his car;
BQP took the boys he mentored on late night bush walks;
BQP gave the boys tablets at bedtime;
BQP had cuddled and kissed the boys he mentored, told them he loved them and, on occasions, asked them to say they loved him;
that BQP had examined Child 1's genitals and buttocks;
BQP had examined a patient in the emergency department out of priority.
The risk assessment found that these incidents were consistent with grooming behaviours as defined in the brochure by the NSW Ombudsman entitled 'Defining Reportable Conduct.'
I will consider each of these matters individually.
BQP agrees that Child 1 slept in the spare bed in BQP's bedroom and that he was aware that this was against the policy of the family mentoring program. He denied that he had a sexual motive in allowing the child to share his bedroom. He explained that he had allowed the child to sleep in the spare bed because he was frightened to be in the guestroom. In statements provided to the Tribunal, BQP's parents confirmed that they had allowed Child 1 to sleep in the spare bed in BQP's bedroom because he was afraid to sleep alone in the guest room. BQP's mother stated that Child 1 had mentioned that there were 7 people and 5 beds where he lived and they slept together in one or two bedrooms. To her mind, this explained his fear of sleeping alone in the guest room.
BQP agreed that he had allowed another child the choice of sleeping in the second bed in his room and acknowledged that he should have arranged for the child to sleep in his own room.
I agree with the respondent that the decision to allow children to share the spare bed in BQP's bedroom was an inappropriate one, particularly as BQP was aware that this was against the guidelines of the family mentoring program.
I am not satisfied, however, that BQP had a sexual motive in allowing the children to sleep in the spare bed in his bedroom. On the evidence before me, which includes statements from BQP's parents, neither of whom were required for cross-examination by the respondent, I am satisfied that Child 1 was unused to sleeping alone and was therefore frightened of sleeping by myself in the guest room. In these circumstances, I am satisfied that the decision to allow the child to sleep in BQP's spare bed was motivated to allay the child's fear and that BQP had no sexual motive in allowing him to do so.
The decision to allow another child to sleep in the spare bed in BQP's bedroom was similarly inappropriate but on the evidence before me, I am not satisfied that BQP had a sexual motive in allowing the child to do so.
Of concern is the fact that BQP allowed Child 2 to get into his bed. By itself, this raises questions of BQP's motivation. The child's evidence is that he climbed into bed with BQP on the anniversary of his father's death, at a time when he was really sad and upset. He told JIRT officers that it felt weird being in the bed and he wanted to get out and sleep in a different bed but was worried BQP would take it the wrong way. He told officers that BQP had put his arm around him.
BQP corroborated the evidence of Child 2 by stating that he had allowed the child to get into his bed on the anniversary of the death of the child's father, who had been murdered in the psychiatric unit of a hospital, when the child was very distressed. He agreed that he shouldn't have allowed this to happen.
[20]
(b) The period of time since those offences or matters occurred and the conduct of the person since they occurred
It has been ten years since those matters involving children mentored by BQP occurred.
Since that time, only one matter of concern has been raised by the respondent, namely the 2013 examination by BQP of a boy who had presented in the emergency department of Hospital 2. For the reasons set out above, I agree that BQP should not have conducted an initial review of the boy without advising senior staff in the emergency department. I find, however, that this was an issue appropriately considered by the Medical Council on 26 November 2013 and I am satisfied that the rectal examination of the boy by BQP was appropriate and correctly administered, and that he had no sexual motive in undertaking it.
I agree with the findings of Dr Lachter that the rectal examination of the boy by BQP does not constitute a concern in relation to BQP's fitness to practise or his awareness of boundaries, nor does it indicate a paedophilic or grooming motivation by BQP.
On the basis of the evidence provided by Dr Lachter, the supervisor, the director and BQP himself, I am satisfied that BQP has gained considerable insight into appropriate professional boundaries. In support of this finding, I note BQP's refusal to treat the 16 year old son of a hospital nurse who presented with testicular pain despite incurring the disapproval of the surgeon on duty. I also note the continued support BQP enjoys from his supervisor and from the (former) director of Hospital 2.
[21]
(c ) The age of the person at the time the offences or matters occurred
BQP was about 38 years old when the complaints were made.
[22]
(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
At the time of the occurrence of the events said to trigger the risk assessment in this case, the relevant child was eleven years old. He was vulnerable because of his age, the fact that he came from a disadvantaged background and was been mentored by BQP.
The other children BQP mentored as part of the family mentoring program were between the ages of eight and twelve years, approximately. They, too, were vulnerable because of their age, the fact that they came from a disadvantaged background and were being mentored by BQP.
[23]
(e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person
The age difference between BQP and Child 1 was approximately 27 years.
[24]
(f) Whether the person knew, or could reasonably have known that the victim was a child
Child 1 was being mentored by BQP who was aware of the child's age. BQP was aware of the ages of the other children he mentored. Having taken a history for him, BQP was aware of the age of the boy he reviewed at Hospital 2 on 2 April 2013.
[25]
(h) The seriousness of the person's total criminal record and the conduct of the person since the offences occurred
BQP has no criminal record.
[26]
(i) The likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition
For the reasons set out above, I am satisfied that BQP did not sexually assault Child 1 by sucking his penis.
BQP's examination of Child 1's genitals and buttocks were a breach of professional boundaries by BQP. I am satisfied that as a result of the proceedings that followed in the Medical Board and the Medical Tribunal and the subsequent psychiatric and psychological intervention received by BQP, he has developed insight and awareness into professional boundaries and their importance. In reaching this view, I have given weight to the evidence given to this Tribunal by Dr Lachter, BQP's medical supervisor and the (former) director of Hospital 2.
I agree with the respondent that it was inappropriate for the children mentored by BQP to sleep in the spare bed in his bedroom. It was also inappropriate to allow one of the children he mentored to get into the applicant's bed to be comforted on the anniversary of his father's murder. Whilst I understand the respondent's concern that BQP kissed and hugged the children in greeting, I accept BQP's evidence that this was simply the way he greeted his family members and that he extended this to the children he mentored.
Ten years have now passed since these complaints. On the basis of the evidence provided by BQP and by Dr Lachter, I am satisfied that BQP has insight into these behaviours and understands the need to keep strong boundaries when dealing with children. I am satisfied that BQP has not mentored children since 2005. Since then, only one complaint had been made about BQP and this was in relation to his examination of a child in the emergency department of Hospital 2. I am satisfied that this was not a breach of professional boundaries but was simply an error of judgement in taking an initial review of the child without informing senior staff in emergency. On the evidence before me, I find that BQP's rectal examination of the boy was entirely appropriate. I am also satisfied that BQP had developed a good awareness of professional boundaries when dealing with patients, including those who are under 18.
On the evidence before me, I am not satisfied that BQP has a paedophilic drive. This was suggested in 2006 by Dr Allnutt in the context of the allegation by Child 1 that BQP had sucked his penis. As set out above, I give little weight to Dr Allnutt's opinion in this regard. This is because Dr Allnutt did not have available to him information relevant to a consideration of the veracity of the allegation, the accepted truth of which was pivotal to his consequential opinion of the likelihood of BQP having a paedophilic drive.
By contrast, to assist in the preparation of his recent report dated 1 March 2015, Dr Lachter was briefed with details of the JIRT notes in relation to the sexual assault allegation of Child 1 in addition to the police interview by BQP in 2006. He has interviewed BQP on several occasions, most recently on 7 February 2015. On the basis of this information, Dr Lachter confirmed his earlier opinion that BQP does not have paedophilic tendencies. In support of his opinion, Dr Lachter gives significance to the fact that since the allegation in 2005, there have been no further allegations of sexual assault or paedophilic behaviour by BQP. According to Dr Lachter 'this duration of time without further police interest in the matter is consistent with my original opinion that BQP has not been behaving with paedophilic tendencies.' In considering other behaviours, including BQP's habit of greeting the children he mentored with a hug and a kiss, Dr Lachter reiterated his earlier opinion that BQP was motivated by a rescue mentality and a desire to assist by 'going the extra mile' rather than being sexually motivated. He did not view BQP's examination in 2013 of the boy in Hospital 2 as being a concern for boundaries or an indication of grooming or paedophilic motivation. Instead he expressed his opinion that BQP's 'maturity around boundary issues, interpersonal awareness and insight has become further developed.'
In light of Dr Lachter's updated opinion and on the basis of the other evidence before me, I am satisfied that there is little likelihood of BQP engaging in inappropriate behaviour with children or in breaching professional boundaries.
[27]
(j) any information given by BQP in, or in relation to, the application
BQP provided a lengthy statement prepared for these proceedings. He gave oral evidence before the Tribunal as did Dr Lachter, BQP's (medical) supervisor and the (former) director of Hospital 2.
[28]
(k) Any other matters that the Children's Guardian considers necessary
It is the submission of the Children's Guardian that when considered as a whole, BQP's conduct amounts to a real and appreciable risk to children.
I do not agree with this. For the reasons set out above, I am not satisfied that BQP sexually assaulted Child 1 by sucking his penis. Accordingly, I have given no weight to this allegation.
In relation to other behaviours by BQP identified by the Children's Guardian as being of concern, I have considered each of them above. On the evidence before me I find that whilst BQP breached professional boundaries in 2005 in his medical examinations of Child 1, in assessing another child's medical report and in examining a child known to him who presented to the hospital, I am satisfied that there was no sexual motive for any of these occurrences and that they did not constitute grooming or paedophilic behaviour. I am further satisfied that whilst some of the behaviours demonstrated by BQP may have been ill-advised - for example in providing children he mentored with vitamin and seasickness tablets without obtaining parental consent; and hugging and kissing the children to greet them - I am satisfied that on no occasion did BQP act with a sexual motive or with an intention to groom the children. Rather I am satisfied that BQP acted at all times to assist the children and to look after their welfare.
In the intervening ten years since the complaints were made, I am satisfied that BQP has gained insight and awareness in his behaviour and has learnt to strictly comply with professional boundaries. Like Dr Lachter, I do not consider BQP's 2013 examination of the boy in Hospital 2 to be a breach of professional boundaries, rather I view it as an error of judgement caused by BQP's desire to assist the child in question and his colleagues in the emergency department of the hospital.
Any recommendation in relation to BQP's right to practise remaining subject to conditions is, I am satisfied, motivated to ensure his further development as a mature clinician rather than through a concern that he may be a risk to children.
On the evidence before me, I am not satisfied that BQP poses a real and appreciable risk to children.
[29]
CONCLUSION
In this case, a working with children check clearance must be granted unless the Tribunal is satisfied that the person poses a risk to the safety of children.
In all the circumstances, and taking into account the matters set out in s30(1) and s15(4) of the Act, the Tribunal considers that the preferable decision is that BQP does not pose a risk to the safety of children and should therefore receive a working with children check clearance.
[30]
ORDER
The decision of the respondent is set aside. Pursuant to s18(2) of the Child Protection (Working with Children) Act 2012, the respondent is to grant BQP a working with children check clearance.
I hereby certify that this is a true and accurate record of the reasons for decision of the New
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
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Decision last updated: 04 August 2015
The Medical Board determined that it would be excessively punitive to impose a condition on BQP that he practise only with patients over the age of 18 years.
he stated that whilst he denied any assault or grooming behaviour in relation with children he accepts that he failed to properly adhere to professional boundaries;
he agreed to becoming upset when Child 1 advised that he no longer wished to continue tutoring with BQP. This was because the Child 1 had been improving in his work and BQP 'feared that his school work and performance would decline.' He didn't realise that becoming upset could have been interpreted as emotional blackmail with the undercurrent of grooming;
he agreed that he had taken children on late night bushwalks at the holiday home to show the children the nocturnal animals. This involved torches, was not near a cliff, included adults and children and was supervised;
he stated that all the children he mentored were already on the waiting list for the program.
He describes the lessons he has learnt in relation to boundaries. He is now mindful that if he is not rostered on in a particular department of a hospital, he shouldn't do anything without approaching the doctor in charge. He tries to avoid examinations of a personal nature and where possible, will request assistance from another doctor to conduct such an examination. He emphasised that his motives have never been sexual and that he has never had a sexual attraction to children.
Whilst BQP's decision was a poor one, and one that was against the policy of the family mentoring program, I am satisfied on the evidence before me that BQP's motive was not a sexual one and that his intention, although misguided, was, as he stated, simply to comfort the boy.
BQP admitted to greeting the children he mentored with a hug and a kiss. The evidence before me is that this was in keeping with how BQP greeted members of his family, who were affectionate towards one another. There is no evidence that there was anything sexual about these greetings: the evidence is that that BQP hugged the children hello and goodbye and sometimes gave them a quick kiss on the forehead or mouth, in the same way as he would greet members of his family. On the evidence before me, I am satisfied that BQP had no sexual motive when giving a hug or a kiss to children he mentored as part of the family mentoring program.
BQP also agrees that he told the children he mentored that he loved them and that, on occasion, he asked the children to tell him that they loved him. BQP told the Tribunal that in his family, they say they love each other and that he had simply extended this to the children he had mentored. Whilst I understand how this could have been disconcerting to children who did not come from such an openly demonstrative or expressive family, I am satisfied that BQP did not have a sexual motive in telling the children he loved him and asking them to respond in a similar fashion. I am also satisfied that BQP now realises how such an expression of affection may have made the children feel uncomfortable.
In reaching these views, I have given weight to the opinion of Dr Lachter as set out in his report dated 1 March 2015 and as provided in oral evidence to the Tribunal, that these demonstrations of affection by BQP were not sexually motivated. I have also given weight to the forthright manner in which BQP explained his behaviours in this regard during his interview with police in 2006.
BQP agreed that he had allowed the children to steer his car whilst on private property. I accept his evidence that one of the co-ordinators of the family mentoring program had waved and laughed when she saw him doing this. While I agree that this was not a safe thing to allow the children to do, there is no evidence before me to indicate that BQP had a sexual motive in allowing the children to do so, nor that it constituted grooming behaviour.
BQP has agreed that whilst staying at the holiday house, which is within a bushland setting, he took the boys out on late night bushwalks to view nocturnal animals. On the basis of BQP's evidence before me, I am satisfied that he did not have a sexual motive in taking the boys for such walks. I am satisfied, rather, that it was simply done to show the boys the bush at night and the nocturnal animals that inhabit it.
I am satisfied that, on occasion, BQP gave some of the boys he mentored tablets and that this may have occurred at bedtime. The respondent has not articulated what, in its view, the tablets were. By contrast, BQP has given evidence as to the tablets he gave to the children, namely vitamins and antibiotics to Child 1, antibiotics to a child he took to the snow and over the counter sickness tablets to children BQP and his father took fishing. I agree with the respondent that he should not have given any vitamins or medication to any of the children without first informing their parents. This, I find, was an error of judgment. On the evidence before me, however, I am satisfied that BQP did not have any sexual motive for providing the children with tablets either during the day or at night-time.
BQP agrees that he examined Child 1's penis on three occasions and that on two further occasions, he examined Child 1's buttocks for boils.
On the evidence before me, I accept that BQP examined the child's penis on the first occasion at the behest of the mother, who thought Child 1 had a hernia in his groin area. On examination of the boy, BQP diagnosed, instead, an infected lymph node. I accept that the mother subsequently contacted BQP to advise that Child 1 had an infected penis. On the advice of BQP, she then took Child 1 to hospital. I accept that BQP later checked Child 1's penis at the child's house and at the request of the child's mother. Because Child 1's genital area was swollen, BQP then acquired what he considered to be more appropriate antibiotics. I accept that BQP again examined Child 1's genitals after Child 1 injured himself when he fell off his bike and hit himself in the groin. I also accept that he twice examined Child 1's buttocks when he had boils: once in the presence of the mother and once when he was alone with Child 1.
Having considered all the evidence before me, I agree with the findings of the Medical Board that by examining the child in these circumstances, BQP committed a number of boundary breaches that were serious. I also note the concession provided by the counsel for HCCC in the proceedings before the Medical Tribunal that it was not alleged by the HCCC that 'any physical examination or treatment provided by BQP was provided for a purpose other than a proper medical purpose.' On the evidence before me, I agree with the findings of the Medical Tribunal that whilst BQP had committed boundary breaches in his examination of Child 1, there was never a sexual motive to the examination nor were they conducted with a view to sexual grooming.
On the evidence before me, I accept that on 2 April 2013, when BQP was working as a surgical registrar at Hospital 2, he went to the emergency department to check for potential surgical patients. He found a ten-year-old boy who was screaming with abdominal pain and who BQP then identified as a potential surgical patient. I accept the oral evidence of BQP that whilst he spoke to a staff member in the hospital before reviewing the patient, he did not seek approval from senior staff in the emergency department to do so. I accept that in doing so, he was seen to be taking the boy out of the priority list in the emergency department. I accept the evidence that when BQP returned to the emergency department an hour later, the boy still had not been seen by an emergency doctor. I accept that the doctor in charge of the emergency department then asked BQP to take over the case which he did. On the evidence before me, I accept that given the presentation of the boy, it was appropriate for BQP to perform a rectal examination for the boy to confirm the presence of faecal loading in the lower rectum. I am satisfied that there was such faecal loading which necessitated an enema which then cured the boy's abdominal pain. I am satisfied that at all times during the examination, the boy's father was present in addition to a hospital chaperone.
On the evidence before me, I am satisfied that BQP performed the rectal examination appropriately to assist him to make what, it transpired, was the correct medical diagnosis. I am satisfied that BQP did not have a sexual motive in performing the rectal examination. I do not accept the respondent's submission that the examination was both unnecessary and contra-indicated. Rather, I accept the evidence of the supervisor and the director that in conducting a rectal examination of the boy, BQP was providing a thorough and appropriate examination.
I agree that BQP should have sought the approval of the senior staff in the emergency department before his initial review of the boy, who he had met within the community on one earlier occasion. I am, however, satisfied that BQP had no sexual motive in examining the boy.
I am not satisfied that BQP 'watched' Child 1 in the bathroom. I accept that as the water was hot, BQP would turn the taps on for the child, to minimise any burn injury, before leaving him to shower. I am not satisfied that BQP behaved in a way to jeopardise Child 1's safety while they walked on the cliffs in the vicinity of the holiday house. I am not satisfied that BQP exhibited any dangerous behaviour towards Child 1 with either a BB gun or a machete. There is no evidence before me to link anything BQP did with the evidence of Child 1 that, on three occasions, he woke with his pyjamas pants down by his ankles. In reaching this view, I have considered file notes in which the mother gives an explanation for this: namely that Child 1 would often sleepwalk.
I am satisfied that any gifts given to the children by BQP at Christmas and for their birthday were simply in his role as a mentor to the family, who he was encouraged to treat as members of his family. I am not satisfied that there was any sexual motive behind the gift giving nor that they were used to groom the children.
It has been submitted by the respondent that when considering these behaviours together, the Tribunal could be satisfied that they constitute grooming behaviour.
According to guidelines produced by the Children's Guardian, Reporting certain misconduct involving children (April 2014):
'[B]ehaviour should only be seen as " grooming" where there is evidence of a pattern of conduct that is consistent with grooming the alleged victim for sexual activity and that there is no other reasonable explanation for it (emphasis added).
For the reasons set out above, I am satisfied that although some of the BQP's behaviours involved a blurring of professional boundaries, none of them were sexually motivated. In reaching this conclusion, I am fortified by the findings of the Medical Tribunal and by Dr Lachter. I have given less weight to the views of Dr Allnutt on the basis that he last saw BQP in 2006, when he was not provided with the full details in relation to the allegation of sexual assault made by Child 1 against BQP; in particular, he was not been provided with the retraction statement of Child 1, the notes that accompanied it or the notes by the Sex Crimes Squad that found Child 1 'not to be credible.' In these circumstances, Dr Allnutt's consideration of the likelihood of the sexual assault having occurred was made without access to important material questioning the credibility of Child 1 and the veracity of the allegation itself. This is of particular concern given that Dr Allnutt's interpretation of BQP's behaviour was strongly influenced by the sexual assault allegation by Child 1.