Lewis v State of New South Wales (Health Care Complaints Commission) [2008] NSWADT 342

CITATION: Lewis v State of New South Wales (Health Care Complaints Commission) [2008] NSWADT 342

DIVISION: Equal Opportunity Division

APPLICANT Marilyn Lewis PARTIES: RESPONDENT State of New South Wales (Health Care Complaints Commission)

FILE NUMBER: 081062

HEARING DATES: 7 October 2008

SUBMISSIONS CLOSED: 7 October 2008

DATE OF DECISION: 24 December 2008

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Application for leave

Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Health Care Complaints Act 1993

Xu v Sydney West Area Health Service [2006] NSWADT 3I W v City of Perth (1997) 191 CLR 1 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 CASES CITED: Purvis v New South Wales (2003) 217 CLR 92 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 Dutt v Central Area Health Service [2002] NSWADT 133 Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251

APPLICANT In person REPRESENTATION: RESPONDENT A Johnson, solicitor

ORDERS: Leave is refused.

REASONS FOR DECISION Introduction 1 Ms Lewis is requesting the Tribunal's permission for a disability discrimination complaint to go ahead despite the fact that the President of the Anti- Discrimination Board (ADB) declined the complaint as lacking in substance: Anti- Discrimination Act 1977 (AD Act), section 96. The background to the complaint is that Ms Lewis' son was suffering from schizophrenia when he committed suicide. Dr O'Sullivan who is a friend of Ms Lewis, complained to the Health Care Complaints Commission (HCCC) about the way doctors had treated Ms Lewis' son. Dr O'Sullivan said in his letter of complaint that he had had a lengthy discussion with Ms Lewis about her son being turned away by Dr Andrews from Sutherland Hospital prior to his death. On 4 January 2007, following certain inquiries, the HCCC decided to discontinue dealing with the complaint giving the following reasons to Ms Lewis: Dr Andrews has stated that your son was not under his care . . . Dr Babidge confirmed that the decision not to admit [your son] was his and not that of Dr Andrews. 2 Ms Lewis contacted the HCCC saying she had further substantial documentation and evidence and would send it to the HCCC. After several further phone calls, an officer of the HCCC visited Ms Lewis at her home and prepared a draft complaint about the conduct of Dr Andrews, Dr Babidge and the Sutherland Hospital. On 13 March 2007 Ms Lewis provided the HCCC with the final version of the written complaint. On 21 June 2007 she received a letter from the HCCC saying that they were going to investigate the complaint. She said that the investigation commenced on 24 September 2007 but has not been finalised. 3 Ms Lewis' complaint to the ADB was that because of her depression and heart condition she could not provide sufficient information to the HCCC to persuade them to investigate the initial complaint. Ms Lewis said that it was only after she contacted the then Minister for Health, the Hon John Hatzistergos, that the HCCC took her complaint seriously. She also said that a further reason for the HCCC taking no further action on the complaint was that Dr Andrews had provided an expert report to the HCCC in relation to a complaint against Dr O'Sullivan. The implication of Ms Lewis' assertion was that the HCCC was biased in favour of Dr Andrews. The second aspect of her complaint is that she said the HCCC lied about the reasons it had discontinued dealing with her complaint. The HCCC denies that it discriminated against Ms Lewis on the ground of her disabilities in relation to the way it dealt with either of the complaints. 4 The application for leave was heard on 7 October 2008. Ms Lewis participated by phone. Ms Johnson, a solicitor from the Crown Solicitor's Office, represented the HCCC. Period of the complaint 5 The complaint was lodged with the ADB on 24 September 2007. At the hearing, Ms Lewis sought to add a further complaint that an investigation report which she received from HCCC on the 18 September 2008 was forwarded to the Medical Board without her being given an opportunity to comment on it. As this incident occurred after the complaint was referred to the Tribunal I cannot consider it as part of this leave application: AD Act, section 95 and section 96. Principles applying to leave applications 6 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96 of the AD Act. I adopt those principles in relation to this case, especially the points made at [17] and [18]. The legislature has not given the Tribunal the task of conducting a merits review of the President' s decision. Consequently, it is not the Tribunal' s task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President' s decision that it lacks substance. The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President' s decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination. 7 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted including that the complaint has reasonable prospects of success. Further evidence? 8 The evidence on which Ms Lewis relies is contained in the President's Report and her oral presentation to the Tribunal. Ms Lewis said that she did not have a sufficient opportunity to provide the ADB with all the documentary evidence in support of her complaint. Despite the fact that Dr O'Sullivan lodged the complaint on Ms Lewis' behalf, she said she told the ADB that she wanted to be involved. She said that the complaint was referred to the Tribunal before she had the opportunity to provide further relevant information. 9 I note that the complaint was with the ADB for more than 6 months before it was declined by the President of the ADB. Ms Lewis said that she was in hospital in March 2008 with a heart condition and that that prevented her from providing further material. Although I did not give Ms Lewis any opportunity to provide further written material, I allowed her to give further informal evidence during the hearing and have taken that evidence into account. Although it is not the Tribunal's role to make ultimate findings of fact at this stage, I must assess the evidence in order to form a view as to the merits of the complaint. In doing so I have taken Ms Lewis' evidence at its highest, that is I have accepted all her factual assertions. Legislative requirements 10 Being self-represented, Ms Lewis was not able to articulate the legal character of her complaint. I understand that Ms Lewis alleges a breach of section 49M of the AD Act which states that: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 11 To succeed in a complaint of direct disability discrimination as defined in section 49B(1)(a) Ms Lewis would have to: 1. prove that she has a disability within the meaning of that term in section 4 and section 49A; 2. define the nature of the services that the HCCC were providing to her; 3. establish that those services come within the meaning of services in the AD Act; 4. prove that the services were refused or provided on less favourable terms than they were provided or would have been provided to a person without her disability; and 5. prove that at least one of the reasons for refusing the services or providing them on less favourable terms was her disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. 12 To prove a complaint of indirect disability discrimination, as defined in section 49B(1)(b), Ms Lewis would have to prove the matters set out at 1-3 above and, in addition, prove that: 1. The HCCC required her to comply with a requirement or condition; 2. she cannot comply with the requirement or condition; 3. a substantially higher proportion of persons who do not have her disabilities, comply or are able to comply with the requirement or condition; and 4. the requirement or condition is not reasonable in all the circumstances. Merits of disability discrimination complaint 13 Nature of the disability. I accept for the purposes of these proceedings that Ms Lewis has a disability within the meaning of that term in the AD Act, namely a heart condition and depression. 14 Identification of the service. Section 4 of the AD Act defines "services to include "services provided by a council or public authority". However, it is essential when alleging discrimination in the provision of services that the services that are being provided are precisely defined: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. The long title of the Health Care Complaints Act 1993 includes the following: An Act to provide for the making, resolution, investigation and prosecution of health care complaints 15 The object of that Act is set out in section 3: (1) The primary object of this Act is to establish the Health Care Complaints Commission as an independent body for the purposes of: (a) receiving and assessing complaints under this Act relating to health services and health service providers in New South Wales, and (b) investigating and assessing whether any such complaint is serious and if so, whether it should be prosecuted, and (c) prosecuting serious complaints, and (d) resolving or overseeing the resolution of complaints. (2) In the exercise of functions under this Act the protection of the health and safety of the public must be the paramount consideration. 16 Although the matter is not beyond doubt, I accept for the purpose of these proceedings that the HCCC provides a service to members of the public, which includes assessing, investigating and resolving complaints against a health practitioner or a health service provider. 17 Refusal of service or terms on which service is provided. Were those services refused or provided on less favourable terms? The HCCC did not refuse to accept or assess Ms Lewis' complaint, it merely made a decision not to continue to deal with it. That decision does not amount to the refusal of a service: IW v City of Perth (1997) 191 CLR 1. Alternatively, did the HCC provide Ms Lewis with a service on certain terms? Ms Lewis did not identify the terms on which she said the service had been provided. In The leading case on this issue is IW v City of Perth (1997) 191 CLR 1 the majority of the High Court found that the process by which a council considered and determined applications for planning approval constituted the provision of services for the purposes of the Equal Opportunity Act 1984 (WA). If the phrase "the terms on which he or she provides the person with those goods or services" is interpreted broadly, it may encompass a decision pursuant to the Health Care Complaints Act to discontinue dealing with her complaint. Again, while these issues are not free from doubt, for the purpose of these proceedings I have assumed that the decision to discontinue dealing with the complaint relates to the terms on which the services were provided. 18 The second part of the complaint, that the HCCC lied to her about the reason for refusing to continue to deal with the complaint, is less likely to come within the definition of the terms on which a service is provided, but again I has assumed that that conduct, if it occurred, relates to the terms on which the service is provided. Direct discrimination 19 Two elements. In order to determine whether the HCCC's conduct constitutes direct disability discrimination a Tribunal hearing this matter would have to ask itself two questions: whether that conduct amounts to differential treatment and, if so, whether that treatment was on the ground of disability: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In order to determine whether there has been differential treatment one must compare the treatment afforded to Ms Lewis with the treatment that was or would have been afforded to a person who did not have Ms Lewis' disabilities in the same or similar circumstances. As there was no actual comparator, the comparison must be made in relation to a hypothetical person: Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13 per Mahoney JA at 19. If the comparison produces the conclusion that Ms Lewis was treated objectively less favourably than the hypothetical comparator, it is then necessary to consider the reasons for that different treatment, that is, causation. 20 Differential treatment. The High Court has said that the two elements of direct discrimination - differential treatment and causation - must be treated separately and sequentially: Purvis v New South Wales (2003) 217 CLR 92 at [231]. That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated. However when the comparator is a hypothetical person the differential treatment question and the causation question amount to a single question, namely why was the person treated in the way that they were treated? (Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] 2 All ER 26 at [7] and [8] and Dutt v Central Area Health Service [2002] NSWADT 133.) Consequently, I am unable to determine how a hypothetical comparator would have been treated without first deciding the causation question. 21 Causation. In Purvis v New South Wales (2003) 217 CLR 92, when interpreting similar provisions in the Disability Discrimination Act 1992 (Cth), the majority of the High Court said that the test was: ... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'. 22 The AD Act uses the words "on the ground of", rather than "because of" but no different meaning is intended. 23 Was one of the reasons for providing the services on less favourable terms, her disability? Ms Lewis gave several reasons for the HCCC responding in the way it did to her complaints. Only one of those reasons has any connection with her disabilities. The first was that the Commissioner of the HCCC, Mr Keiran Pehm, assumed that Ms Lewis' advocate, Dr O'Sullivan, was making the complaint on Ms Lewis's behalf to avenge conduct of Dr Andrews against him. This is obviously not a reason that relates to Ms Lewis' disabilities so it does not assist her case. Another reason unrelated to her disabilities was that she is not a "high-profile" person and that is why her complaints were not investigated until she sought the intervention of the then Minister for Health. Again, not being a "high profile" person is not a matter which relates to either of Ms Lewis' disabilities. 24 Conclusion. The only reason which Ms Lewis put forward which has any connection with her disabilities was that she was unable to provide all the information that the HCCC needed in order to properly investigate the complaint. She said that if she had been well enough to do what the HCCC had wanted her to do she could have persuaded them to proceed with the investigation. She said she needed help and advice at that time but did not receive it. Ms Lewis appears to acknowledge by this statement that the HCCC did not discontinue her complaint because of her disabilities per se. Rather, she is suggesting that the reason was a characteristic that appertains general to people who have her disabilities. 25 Although Ms Lewis did not articulate her claim to include the "characteristics extension" in section 49B(2), it is arguable that people who have her disabilities are unable to provide timely documentary evidence in support of their complaints. Even if that submission were supported by evidence and accepted, the lack of documentary material was not the reason that the HCCC took no further action on the complaint at the time. The reason, which is supported by their preliminary inquiries, was Dr Andrews' assertion that Ms Lewis' son was not under his care. Even if the HCCC would have reached a different conclusion had more material been before it, it cannot be said that a reason for discontinuing with the complaint was that that material was not provided. In my view the connection between the absence of unspecified material and the HCCC's decision is too remote to meet the causation requirement. 26 It also follows that a hypothetical person without Ms Lewis' disabilities (or the characteristic that they are unable to provide timely documentary evidence in support of their complaints) would not have been treated any differently in the same or similar circumstances. If a person without depression or a heart condition made a complaint in the same circumstances or circumstances which were not materially different, that is if the HCCC had the same or similar information that it had in this case, their decision would have been the same. 27 Even if I accept Ms Lewis' allegation that the HCCC lied about the reason for taking no further action, that is not something that was done because of Ms Lewis' disability. Any complaint to that effect would be bound to fail. 28 There is no positive obligation on the HCCC under the AD Act to accommodate Ms Lewis' disabilities by assisting her to provide material in support of her complaint. If the HCCC had discriminated against Ms Lewis by refusing her services, it would have a defence if the provision of the services would impose unjustifiable hardship: AD Act, s 49M(2). This provision falls short of imposing an obligation on the HCCC to assist a person with a disability to formulate or pursue a complaint. We note that when Ms Lewis contact the HCCC on 12 January 2007 after her initial complaint had been declined, officers went to considerable lengths to assist Ms Lewis in the formulation of a new complaint. Indirect discrimination 29 Requirement or condition. The words requirement or condition "should be construed broadly so as to cover any form of qualification or prerequisite demanded by an employer of his employees": Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185 per Dawson J. A requirement may be inferred or implicit. It is arguable, though certainly not free from doubt, that the HCCC imposes a requirement or condition on complainants that before a complaint is formally investigated, a complainant had to provide sufficient credible information to justify such a decision. The HCCC may not accept that it does impose such a requirement, but again, for the purpose of these proceedings, I have assumed that it does. 30 Substantially higher proportion test. This test is a complex one involving identifying the people to whom the requirement is directed (the base group), deciding how the base group should be divided (the pools), assessing the rate of compliance of the two pools and whether any disparity in compliance is substantial. I have assumed for the purposes of these proceedings that Ms Lewis would be able to provide evidence which would satisfy a Tribunal that this aspect of indirect discrimination had been met. 31 Compliance with the requirement. Ms Lewis did not dispute that she provided the HCCC with clinical notes made by Dr Andrews in relation to her son, a copy of her statement to the police about her son's death and the names of two case workers referred to in that statement. Nevertheless we accept her assertion that she would have provided further information had she been well enough to do so. In that sense she was unable to comply with the requirement. 32 Reasonableness. Reasonableness is a question of fact to be determined after weighing all the relevant factors. There is no provision in the AD Act setting out the factors to be taken into account but the case law provides some guidance. Bowen CJ and Gummow J in Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251 at 263 said: The test of reasonableness is less demanding than one of necessity, but more demanding than one of convenience ... The criterion is an objective one, which requires the court to weigh the nature and extent of the discriminatory effect, on the one hand, against the reason advanced in favour of the requirement or condition on the other. All the circumstances of the case must be taken into account. There is a great deal more case law on this issue but in the absence of any evidence, or even an assertion on Ms Lewis' part, that she requested more time to provide documentary material and that she was denied that opportunity, it is highly unlikely that a Tribunal would find that the requirement or condition, if it exists, was unreasonable in all the circumstances. It is unrealistic to expect that an organisation such as the HCCC would anticipate that because of her disabilities Ms Lewis would require extra time or assistance to provide information when she did not make it known that she required that time or assistance. After considering the merits of Ms Lewis' complaint I am satisfied that it has little or not prospects of success. Order Leave is refused.