Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YFA v Secretary, NSW Ministry of Health [2024] NSWCATAP 5 Hearing dates: On the papers Date of orders: 10 January 2024 Decision date: 10 January 2024 Jurisdiction: Appeal Panel Before: Hennessy, ADCJ, Deputy President Dr R Dubler SC, Senior Member Decision: 1. A further hearing of this appeal is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The Appellant's complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW). Catchwords: HUMAN RIGHTS – disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying 'authority or body' within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: FBY v Secretary, NSW Ministry of Health [2023] NSWCATAD 83 Karaoglu v Fitness First [2022] NSWSC 1804 FBY v Secretary, NSW Ministry of Health [2023] NSWCATAP 285 Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 Texts Cited: Nil Category: Principal judgment Parties: YFA (Appellant) Secretary, NSW Ministry of Health (Respondent) Representation: Counsel: P Lowson (Appellant) T Prince (Respondent) Solicitors: HIV/AIDS Legal Centre Inc (NSW) (Appellant) Crown Solicitor (Respondent) File Number(s): 2023/00139185 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the disclosure, publication or broadcast of the name of the Appellant is prohibited. Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Citation: [2023] NSWCATAD 83 Date of Decision: 04 April 2023 Before: T Simon, Principal Member Dr M K Murray, General Member File Number(s): 2020/00304104 REASONS FOR DECISION Introduction 1. The Appellant has appealed from a decision of the Administrative and Equal Opportunity Division of the Tribunal which dismissed his complaint of disability discrimination by a 'qualifying body': FBY v Secretary, NSW Ministry of Health [2023] NSWCATAD 83 (the Decision). 2. The Appellant alleges that the Respondent discriminated against him on the grounds of his Human Immunodeficiency Virus (HIV) status pursuant to s 49J of the Anti-Discrimination Act 1977 (NSW) (the AD Act). That provision makes it unlawful in certain circumstances for a 'qualifying body' to discriminate against a person on the ground of disability. A qualifying body is 'an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation . . . ': AD Act, s 49J(1). 3. Section 4(4) expands that definition to include "a reference to the conferring, renewing, extending, granting, awarding, approving, issuing or accepting of a recognition, registration, enrolment, approval or certification by such an authority . . ." 4. The Tribunal at first instance concluded that the Respondent was not an authority or body described in s 49J of the AD Act, and that accordingly the Appellant's complaint should be dismissed under s 108(1)(a) of the AD Act: at [57] – [60]. Having decided that question as a preliminary issue, the Tribunal did not need to determine whether the Respondent had discriminated against the Appellant on the grounds of disability. 5. On 24 October 2023, the Appeal Panel decided to allow the appeal and set aside the orders of the Tribunal of 4 April 2023: see FBY v Secretary, NSW Ministry of Health [2023] NSWCATAP 285 (the Decision on appeal). 6. In essence, the Appeal Panel decided that s 49J of the AD Act ought to be interpreted to mean that a body, such as the Respondent, could be a qualifying 'authority or body' if it had de facto power to grant the approval of health care workers with a blood borne virus, such as HIV, to perform exposure prone procedures, such as surgery. 7. The Appellant was training at the relevant time to be a neurosurgeon and he alleges that the Respondent unlawfully declined to grant him approval to perform exposure prone procedures on the ground of his HIV status. 8. The Appeal Panel having so interpreted s 49J of the AD Act, contrary to the view of the Tribunal at first instance, on 24 October 2023 made the following orders: 1. Appeal allowed. 2. Set aside the orders of the Tribunal of 4 October 2023. 3. The parties are to file submissions on the question as to whether or not the Respondent at the relevant time had de facto power to grant the approval of health care workers with a blood borne virus to perform exposure prone procedures within the meaning of s 49J of the Anti-Discrimination Act 1997 (NSW) in accordance with … [a timetable which was then set out]. 1. We have received the parties' written submissions and this is our decision on the question as to whether or not the Appellant has established that, at the relevant time, the Respondent was a qualifying 'authority or body' within the meaning of s 49J(1) of the AD Act. The Appellant's submissions 1. A summary of the factual background in this matter and identification of the allegedly discriminatory conduct has already been set out by us at [5] – [12] of the Decision on appeal. 2. The Appellant summarised his submissions at paragraph 2 of his written submissions as follows: The respondent had de facto power to grant the approval of health care workers with a blood borne virus to perform exposure prone procedures within the meaning of s 49J of the Anti-Discrimination Act 1977 (NSW) as follows: 1. The respondent mandated through Policy Directive 2005 PD 2005_162 AB 225 attaching Circular 99/88 ("the 2005 Policy Directive") that all health care workers who performed exposure prone procedures anywhere in NSW were required to monitor their blood borne virus status, and further mandated that health care workers who were "infectious" were prohibited from performing exposure prone procedures. The 2005 Policy Directive had the effect that the respondent in 2014 withheld authority for the appellant to perform specific surgical procedures essential to the work of neurosurgeons. 2. At all material times the respondent convened the NSW Health Blood Borne Viruses Advisory Panel, managed health care workers such as the appellant through the appointment of a monitoring process, and the Panel had and exercised the power to advise a health care worker with a blood borne virus to modify or restrict his or her practices or to be transferred to other duties; and 3. The respondent had exercised its power to grant approval to health care workers with a blood borne virus to perform exposure prone procedures in NSW public health facilities when it issued the "Interim Guidelines for health care workers with HIV infection performing exposure prone procedures working for NSW Health" ("Interim Guidelines"), and then exercised its power to grant approval to health care workers with a blood borne virus to perform exposure prone procedures at any health facility when it published the Policy Directive PD2019_026. The 2005 Policy Directive 1. The Appellant emphasised the fact that the 2005 Policy Directive, when it purportedly prohibited health care workers with blood borne viruses, such as HIV, from performing exposure prone procedures, extended to both private and public health care facilities. 2. In this regard, the Appellant referred to the definition of health care workers in the 2005 Policy Directive as being not limited to health care workers working in any particular facility. In 2019, the Policy Directive that replaced the 2005 Policy Directive defined health care workers as 'persons, including students and voluntary workers who undertook procedures in public and/or private health care settings that normally involved patient care and/or contact with blood or other body fluids'. The Appellant submitted, as we understood it, the 2005 Policy Directive was to be interpreted to similar effect. 3. Nextly, the Appellant referred to the evidence of Dr Selvey to the effect that the 2005 Policy Directive applied to health care workers irrespective of whether they worked in a private or public health facility because the prohibition was for all exposure prone procedures irrespective of where they were performed. The NSW Health Blood Borne Viruses Advisory Panel (the Advisory Panel) 1. In respect of the Advisory Panel, the Appellant submits that the Respondent which convened the Advisory Panel, controls the conditions under which a health worker's risks of infection by reason of a blood borne virus is monitored and issues strict monitoring and conditions on the health care worker to satisfy requirements deemed to make the performance of exposure prone procedures by that health care worker appropriate. 2. As we understand it, the submission from the Appellant is that this demonstrates the Respondent has de facto power to grant the approval of health care workers with a blood borne virus to perform exposure prone procedures within the meaning of s 49J of the AD Act. The Interim Guidelines and the Policy Directive PD2019 – 026 (the 2019 Policy Directive) 1. In respect of the above contention, the Appellant refers to Circular 99/88 which was attached to the 2005 Policy Directive, where it states that 'private health facilities are advised to adopt this policy unless they already have in place an equivalent policy on the issue'. Also reference was made to the Policy Directive itself, where it states that it applies, inter alia, to '… private health hospitals and day procedure centres…'. 2. According to the Appellant, 'it is apparent that the Respondent expected, and expects, private health facilities to adopt outright its policies in relation to the management of health care workers with blood borne viruses who perform exposure prone procedures. If a private facility does not adopt the Respondent's Policy Directive, it is expected to adopt an equivalent Policy Directive'. 3. The Appellant's submission also put forward this proposition: The Respondent has not introduced any evidence that any private health facility adopted anything other than the 2005 Policy Directive, or, for that matter, the 2019 Policy Directive, in relation to the performance of exposure prone procedures by health care workers with a blood borne viruses. 1. To similar effect and finally, the Appellant submits that the Respondent intended that its Policy Directive be adopted by private health facilities, including the approval or non-approval of health care workers to perform exposure prone procedures, and the Respondent introduced no evidence that any private health facilities allowed health care workers with blood borne viruses to perform exposure prone procedures contrary to the 2005 Policy Directive. Respondent's submissions 1. According to the Respondent, the role of the advisory panel is not relevant because, firstly, the Advisory Panel had no role outside NSW Health. Secondly, the Advisory Panel, was, as the name suggests, only advisory. As the Respondent put it, its existence or operation cannot rationally support the contention that the Respondent had a de facto power in the relevant period to approve exposure prone procedures in private health facilities. 2. The Respondent then referred to the evidence of Dr Selvey and in particular, her email of 8 May 2018, where she advised that performing exposure prone procedures in private health care facilities would be in breach of the Commonwealth guidelines. 3. The Respondent submits that this simply states the correct position. It does not demonstrate any de facto power on the part of the Respondent. 4. The Respondent submits that the 2019 Policy Directive is irrelevant as it occurred after the relevant period under enquiry, being between May and December 2018. 5. The Respondent then submits that the 2005 Policy Directive does not demonstrate any de facto power to grant an approval in respect of private health facilities as it was at best a recommendation to private health facilities. 6. In support of that proposition, the Respondent refers to the statement in the Policy Directive that private health care facilities are 'advised' to adopt this policy. According to the Respondent, mere advice to the private sector cannot amount to a de facto power to grant an approval to perform exposure prone procedures. 7. The Respondent submits that for the Appeal Panel to find that the Respondent had de facto power in the relevant sense, the focus must lie on the conduct of the private health facility. The evidence required for a finding of de facto power must be to the effect that private health facilities, as a matter of practice or reality, acted in accordance with the Respondent's directives in respect of approving or prohibiting health care workers to perform exposure prone procedures in private health facilities and that they did so by reason of those directives. Relevant directives include the 2005 Policy Directive and the 2019 Policy Directive and the Interim Guidelines. 8. According to the Respondent the Appellant bears the onus of proof but produced no evidence that between May and December 2018 private health facilities were in the habit or practice of acting in accordance with Policy Directives and the 2005 Policy Directive in particular. 9. The Respondent was content for the Appeal Panel to make an order dispensing with the hearing under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), subject to reviewing the Appellant's submissions in reply. 10. Since receipt of the Appellant's submissions in reply, the Respondent had not provided any further submissions on that issue. Appellant's submissions in reply 1. In reply and in essence, the Appellant submits that the Respondent did as a matter of fact give directions to private health facilities and expected these directions to be followed in ways which amounted to prohibiting persons such as the Appellant from performing exposure prone procedures or allowing him to perform exposure prone procedures under certain conditions at private health facilities. 2. In this regard, the Appellant submits the totality of the evidence shows the Respondent did not merely rely on the Commonwealth Guidelines but issued its own directives. 3. The Appellant submits this comes from the evidence of the Respondent's own witnesses, the transcript of which we have. 4. The Appellant accepts that he did not approach any private health facilities in the relevant period of May to December 2018, but this was hardly surprising given the attitude and directives of the Respondent. 5. The Appellant submits that the 'party with an obligation, and the resources, to call evidence from private health facilities was plainly the Respondent'. 6. The Appellant submits that his preference is to attend an oral hearing so as to respond to any queries from the Appeal Panel. Dispensing with an oral hearing 1. We have considered the submissions of the parties as to whether or not there is a need for a further oral hearing to deal with this issue. 2. In our view, and in particular where there is no further evidence beyond what has already been received and considered by us on the previous hearing of the appeal, there is no need for a hearing. 3. The matter can be properly considered with justice to all of the parties on the basis of the written submissions. 4. Accordingly, we will dispense with the hearing pursuant to s 50(2) of the NCAT Act. Consideration 1. The key issue is whether or not the Respondent was in fact empowered to grant approval to the Appellant to perform exposure prone procedures in private health facilities between May and December 2018 in circumstances where the Respondent had in place a 2005 Policy Directive which on its face prohibited health care workers from performing such procedures if they were HIV positive. 2. That issue requires consideration of whether or not private health facilities, or at least some of them, were in the practice or habit of acting in accordance with the Respondent's Policy Directives of approving or disapproving health care workers from performing exposure prone procedures in private health facilities. 3. In the context of the factual background the focus of the factual enquiry must be a consideration of whether or not: 1. private health facilities, or some of them, were acting in accordance with the 2005 Policy Directive, and because of the 2005 Policy Directive, were prohibiting health care workers with HIV from performing exposure prone procedures; and 2. private health facilities, or some of them, would have ceased to act in accordance with the 2005 Policy Directive had the Respondent granted approval to the Appellant to perform exposure prone procedures. 1. There is no evidence before us on these key factual issues. 2. We agree with the Respondent that the onus of proof lies with the Appellant to demonstrate its case. We are not satisfied that in the absence of more direct evidence on the matter that the key factual issues identified by us above can be drawn by reason of inferences said to able to be drawn by the Appellant from the documents themselves and the Respondent's witnesses. In this regard we agree with the submissions of the Respondent. 3. There has been no evidence as to the relevant conduct of private health facilities at the relevant time or their policies and practices. We note the Appellant's submission to the effect that the Respondent could have, but failed to, lead evidence as to the conduct and practices of private health care facilities in NSW and the extent to which they do, as a matter of practice, follow the directives of the Respondent. 4. The general proposition must be that the omission to produce evidence can rarely prove any fact in issue: see Karaoglu v Fitness First [2022] NSWSC 1804 at [4]. 5. As we understand the Appellant's submissions, we are asked to draw inferences from the fact that the Respondent had the 'power' to call evidence that private health facilities did not follow the 2005 Policy Directive but chose not to. This appears to be a reference to the approach to the assessment of evidence expounded by Lord Mansfield CJ in Blatch v Archer (1774) 1 Cowp 63; 98 ER 969 at 65, 970, respectively. Paraphrasing what Lord Mansfield said, when the court weighs and assesses evidence, it must bear in mind the extent to which it was in the power of one party to produce and in the power of the other to contradict evidence bearing on the facts in issue. 6. The difficulty with relying on this principle is that it was always within the power of the Appellant to seek to obtain evidence, whether oral or documentary, from the Wollongong Private Hospital, being the hospital at which the Appellant wished to pursue his training as a neurosurgeon, (or some other relevant private health facility), as to whether or not in the period of May to December 2018 such health facilities were acting in accordance with the 2005 Policy Directive. Evidence could have been called from persons familiar with the policies and practices of private health facilities in NSW in this regard. 7. Accordingly, in our view, the Appellant's attempt to rely upon the failure of the Respondent to lead evidence is not persuasive or probative of the facts in issue here. 8. We are not satisfied that at the relevant time the Respondent had de facto power to grant the approval of health care workers with a blood borne virus to perform exposure prone procedures within the meaning of s 49J of the AD Act. 9. Accordingly, and in light of our previous orders, the further orders of the Appeal Panel are as follows: 1. A further hearing of this appeal is dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The Appellant's complaint is dismissed pursuant to s 108(1)(a) of the Anti-Discrimination Act 1977 (NSW). ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 January 2024