Lessons to learn from Queensland cases

The Queensland Civil and Administrative Tribunal (QCAT) recently made two decisions, decided four days apart, to impose a suspension on two Queensland teachers, due to their chance of imposing unacceptable harm to students.

The first case involved a male teacher, Mr C, who was breaching his professional boundaries and seeking a sexual relationship with a female student. The second case dealt with a female teacher, Ms H, who physically and verbally abused a student with disabilities.

Even though the cases were decided in Queensland under Queensland law, these cases serve as an important reminder for schools and teachers to note what acts may constitute misconduct and for schools to remind teachers about their professional boundaries.

With reportable conduct schemes being introduced around Australia, the focus on appropriate conduct in schools has never been greater.

QCAT appointed pseudonyms to both respondents for protection purposes and those pseudonyms are used in this article.

Facts of Mr C’s case

Mr C was a registered teacher from 4 March 1991. He was employed as a head of department during 2016 and taught a year 12 subject.

Between 25 January 2016 and 18 November 2016, Mr C failed to maintain appropriate professional boundaries with a female year 12 student by sending overly familiar emails without a valid reason or educational purpose.

These ‘flirtatious’ emails were sent from a work account to the student’s school account and at some point asked for the student’s personal email address to keep in touch after graduation.

Between 19 November 2016 and 31 December 2016, Mr C failed to maintain appropriate professional boundaries with the now graduated student by frequently communicating with her by email, text messages and telephone, in a way which was personal, “highly sexual” and without valid reason or educational purpose.

Mr C also told the former student that he was in love with her and that he was sexually aroused when they had classes together, asking personal questions about her ex-boyfriend and sex life and telling her personal information about his marriage, family and affairs. Mr C asked the former student to delete emails to avoid detection by his employer and regulatory authority. Also, Mr C attended the former student’s workplace on at least two occasions.

Facts of Ms H’s case

Ms H was registered as teacher from 26 May 2004 and was employed at a special needs school from 2008.

On 24 October 2016, Ms H used inappropriate language and excessive physical force toward a student with a diagnosed disability, by directing offensive language at the student, pushing the student to the ground, and throwing and projecting a disinfectant or similar substance to the student’s face and/or genital and/or bottom area which caused pain and/or discomfort.

Ms H also used a mop on the student’s body and face, sat on top of the student and applied hand sanitiser or similar substance to the same student’s sores causing pain, while using offensive language when applying the substance.

QCAT’s decisions

Senior Member O’Callaghan decided that both teachers posed an ‘unacceptable risk of harm’ to children and the suspensions were to be upheld until otherwise ordered by the QCAT.

In both cases Senior Member O’Callaghan ordered that the teacher registration suspensions of Mr C and Ms H were upheld.

What is unacceptable risk of harm?

The legal test applied to determine Mr C and Ms H’s misconduct was whether their conduct posed an ‘unacceptable risk of harm’ to children.

Harm to a child is defined under section 7 of the Education (Queensland College of Teachers) Act 2005 (Qld) (QCT Act) to mean any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. Other key definitions of harm from the QCT Act are:

it is immaterial how the harm is caused. Harm can be caused by physical, psychological or emotional abuse or neglect; or sexual abuse or exploitation, and

Harm can be caused by a single act, omission or circumstance; or a series or combination of acts, omissions or circumstances.

The QCT Act does not define unacceptable risk of harm but case law from previous decisions is useful to interpret this phrase. The test from a High Court decision of M v M (1988) 166 CLR 69 was adopted, which is, making an assessment of the ‘chances’ of the risk occurring and the magnitude of potential harm if it did occur, and requiring a balancing exercise of advantages and detriments.

Therefore, the question before QCAT was: whether there was any identifiable risk of harm and whether such a risk was unacceptable?

Identifying whether or not a risk is unacceptable involves balancing the protection of students from harm by the conduct of the teacher and the potential harm the teacher may face if an unjustified suspension is imposed.

Due to the conduct displayed by Mr C and Ms H, the QCAT decided to maintain the suspension of both teachers until otherwise ordered by QCAT or a higher court.

Lessons to learn

Even though the cases were decided in Queensland, these cases serve as an important reminder for schools and teachers to note what acts may constitute misconduct and for schools to remind teachers about their professional boundaries. Teachers need to be able to access clear and comprehensive policies on acceptable boundaries and codes of conduct to understand what conduct is, and isn’t, within their professional boundaries.

Such policies should be well communicated and publicised within the school community so that other people may be able to recognise inappropriate conduct if they witness or hear about it.

Around Australia, the pace of legal reform is increasing the threshold of behaviour expected of teachers, a school’s obligations to educate and train teachers on expected behaviour and multiplying the reporting obligations incumbent on members of the school community to report inappropriate conduct.

Both these Queensland cases should be reminders to all schools of the importance of ensuring their teachers understand their professional boundaries and how to avoid breaching them.

About the author

William Kelly is a School Governance Reporter.

This article originally appeared in School Governance: https://www.schoolgovernance.net.au/2017/04/27/professional-boundaries-and-teacher-suspension-lessons-to-learn-from-qld-cases/