ACT law puts trust at risk

New legislation in the ACT is of serious concern to the Union and is already causing apprehension and disquiet among teachers throughout the Territory.

Controversial amendments to the Teacher Quality Institute (TQI) ACT strengthen the required mandatory reporting (to TQI) by employers of various 'events; including disciplinary matters and investigations. The requirement to report any physical or mental health issues which prevent a teacher from performing any inherent part of their job as a teacher regrettably remain. The Union believes this capture continues to be ill defined and largely unnecessary.

This existing aspect of the legislation should ring alarm bells not only in the ACT but in every other state and territory. Reporting mental health issues emerged early in the National Review of Teacher Registration considerations but did not form part of the final recommendations as it was considered unnecessary and a 'bridges too far' by more sensible voices.

Not withstanding this, other jurisdiction will be tempted to follow and add such matters to required reporting. The Union had anticipated that in the revision of legislation this aspect of the Act some clearly identifiable threshold for reportable matters would be established. The amendments as they stand represent a missed opportunity.

In summary the relevant section of the Act says that the “the employer of an approved teacher must tell TQI, in writing, if the employer has reasonable grounds for believing the teacher has become mentally or physically incapacitated and the incapacity prevents the person from performing an inherent requirement of their job as a teacher.”

I wonder why TQI might reasonably need this information, what they do with it and whether it has been used to suspend or cancel a teacher’s registration. I wonder also how an employer is expected to interpret these words. Are they expected to write to TQI every time a teacher is absent through illness? Are they expected to interpret medical certificates and make judgements about capacity and medical diagnosis?

Almost every medical certificate speaks to an employee’s incapacity to perform their duties, generally for a short or closed period. Fortunately, most do not provide details of a diagnosis although there are occasions particularly with chronic illnesses or conditions when disclosure by doctors with the consent of the patient is considered beneficial for the employer to assist in managing a person’s work or work environment. These disclosures rely on trust in confidentiality.

What of medical conditions which are considered disabilities? Epilepsy, diabetes or even cancer are all disabilities (in Australia) which will likely restrict the capacity of a teacher to perform some aspects of a teaching role. Have these been reportable? Has action be taken detrimental to such a teacher? What protections are offered by the Disability Discrimination Act?

In this country over recent years we have made significant advances towards reducing the stigma attached to mental and psychological illness. One would have expected mandatory reporting of these conditions which serve to increase that stigma to have been removed or to be limited to those extreme and defined situations where it was no longer possible for a person to continue as a teacher.

About 2% of Australians are bipolar, a similar number suffer from Obsessive Compulsive Disorder (OCD), 6% have a form of medically diagnosed depression, 9% some form of eating disorder considered a mental illness, 12% will experience post traumatic stress disorder and 14% one of the many anxiety disorders. These individuals are almost always able to function as regular workers although they may require some adjustments to work arrangements, especially while modifications and adjustments to treatments are underway. Demands for reporting these issues have raised serious concerns and questions in NSW as well. There is a real danger that trusting relationships, carefully nurtured between employees and their employers put at risk a reporting regime for which no case has been made, which is ill defined, and which potentially threatens the license to teach.

This aspect of the existing legislation went unreported with concentration on issues which purportedly implement changes recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.

Chief among these is what appears a blanket requirement to report all and any investigation involving teachers. While employers are not required to report that allegations have been made, they must report when a 'formal' investigation begins. It is hard to imagine any allegation which would not be subject of inquiry or investigation.

Common enquiries by employers into teachers relate to matters which broadly fall into three categories; child protection, teaching competence or conduct. In each there are scales of seriousness and accuracy. All will now form part of the official personal record of a teacher maintained by the registration authority and if 'as expected' a national teacher database is established, be passed on to that body.

Without a common understanding of boundary and interpretation, reporting and recording in some instances could capture low level conversations relating to disquiets about teaching practice, alongside others where a prescribed improvement program was in place.

Likewise, an allegation of negligence in relation to a minor playground incident, which understandably requires investigation is now evidently an event to be reported to TQI if a preliminary check of facts determines that an incident occurred. Teachers are rightly fearful of their reputations.

At present there is no guidance notes for employers or teachers publicly available. There is no indication of thresholds or levels of gravity and these must be forthcoming.

John Quessy