PW v Royal Prince Alfred Hospital and Ors [2007] NSWADT 31

CITATION: PW v Royal Prince Alfred Hospital and Ors [2007] NSWADT 31

DIVISION: Equal Opportunity Division

APPLICANT PW FIRST RESPONDENT PARTIES: Royal Prince Alfred Hospital SECOND RESPONDENT Sydney South West area Health Service THIRD RESPONDENT State of New South Wales (NSW Department of Health)

FILE NUMBER: 041031

HEARING DATES: 22-23/03/2006

SUBMISSIONS CLOSED: 10 August 2006

DATE OF DECISION: 5 February 2007

BEFORE: Hennessy N - Magistrate (Deputy President); Weule B - Non Judicial Member; Hiffernan N - Non Judicial Member

CATCHWORDS: Transgender Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter

Anti-Discrimination Act 1977 Health Administration Act 1982 LEGISLATION CITED : Health Services Act 1997 National Health Service Act 1977 (UK) Police Service Act 1990

Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 CASES CITED: IW v City of Perth (1997) 191 CLR 1 R v North West Lancashire Health Authority, Ex parte A, D & G, (2000) 1 WLR 977 Waters v Public Transport Corporation (1991) 173 CLR 349

APPLICANT In person REPRESENTATION: RESPONDENTS C Ronalds, SC

ORDERS: The complaint is dismissed

REASONS FOR DECISION Background 1 PW is a 50 year old transgender person who has a condition known as "gender dysphoria". Although born as a male, she began taking the female hormone oestrogen, about 10 years ago. Six months later, she began living as a woman. PW has been seeking sex reassignment surgery (SRS) so that, as far as possible, her genitals look and function like female genitals. Dr J Parkinson, consultant psychiatrist, assessed PW in 2004 and agreed that she has gender dysphoria. His opinion was that SRS was the appropriate next stage of treatment for PW and believed that would have been the case in 2004. No public hospital in New South Wales currently provides SRS and PW cannot afford the cost of the surgery in a private hospital. 2 In 2002 PW met with Dr Roy Donnelly, Director of Medical Administration at Royal Prince Alfred Hospital (RPAH), and others, to request that SRS be provided to her at RPAH. During that meeting Dr Donnelly said that RPAH did not see it as a priority compared with other patients with more urgent and "genuine" medical needs such as cancer. PW subsequently met with Ms Gill, the Executive Director of RPAH, and requested that the hospital give her access to SRS as a public patient. Ms Gill refused her request on the basis that RPAH does not perform that surgery. PW also approached Mr Wallace, Deputy Chief Executive Officer of the Sydney South West Area Health Service (the Area). He refused PW's request for SRS to be provided to her at RPAH. 3 PW has brought proceedings under the Anti-Discrimination Act 1977 (AD Act) against RPAH, the Area and the State of New South Wales, NSW Department of Health (the Department). PW's complaint is that the respondents refused to provide her with the "surgical operation" consisting of, but not limited to, various procedures such as amputation of the penis and construction of a vagina. She claims that the refusal to provide that service amounts to discrimination on the ground of her transgender status. There was no dispute that PW is a transgender person as defined in the AD Act. She identifies as female by living as a member of that sex: AD Act, s 38A(a). The claim 4 PW alleges that the respondents have discriminated against her on the ground of her transgender status contrary to s 38M(a) of the AD Act. That provision states that: It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on transgender grounds: (a) by refusing to provide the person with those goods or services (b) ... (not applicable) 5 The term 'services' in anti-discrimination legislation has been interpreted broadly: IW v City of Perth (1997) 191 CLR 1 at 12. Section 4(1) of the AD Act defines 'services' to include 'services provided by a council or public authority'. Whether or not any of the respondents are public authorities, the provision of health services in general and SRS in particular, come within the definition of 'services' in the AD Act . But that is not the end of the matter. Section 38M(a) only applies if a person who provides services has refused to provide those services to the applicant. 6 PW maintained that SRS was not the service that she had been refused. She said she had been refused a service comprising a collection of procedures already performed in whole or part throughout the New South Wales health system. She said that RPAH and the Area have refused to provide her with a surgical operation elements of which are provided to adults requiring genital surgery and people with an intersex condition, that is, a condition where genitals are not totally consistent with being male or female. She says that many of the procedures performed in those contexts are the same procedures that are required for SRS. 7 The respondents submitted that the service PW requested is SRS and that they do not provide that service nor are they under a statutory duty to do so. In those circumstances, they say that they are not liable for refusing to provide her with 'those services'. 8 If any of the respondents who provide services, have refused to provide 'those services' to PW, the Tribunal must determine whether that treatment amounts to unlawful discrimination. PW's claim is that the respondents discriminated against her 'directly' contrary to s 38B(1)(a). That provision states that: (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on transgender grounds if, on the ground of the aggrieved person being transgender or a relative or associate of the aggrieved person being transgender, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances (or in circumstances which are not materially different) the perpetrator treats or would treat a person who he or she did not think was a transgender person or who does not have such a relative or associate who he or she did not think was a transgender person, 9 When determining whether she has been treated 'less favourably' than people who are not transgender, PW said that the people with whom she should be compared are people who require surgery on their genitals for reasons other than gender dysphoria including as a result of an intersex condition. The respondents said that because surgery was carried out in those cases as a result of some abnormality, the circumstances were not sufficiently similar to PW's circumstances to make the comparison a valid one. 10 Although PW also alleged that the respondents discriminated against her 'indirectly' contrary to s 38B(1)(b), we have refused to consider that allegation. PW made a claim of indirect discrimination in her Amended Points of Claim, but withdrew that claim during the hearing. In written submissions following the hearing, PW sought to again rely on 'indirect' discrimination. The respondents submitted that it would be procedurally unfair for the Tribunal to take those submissions into account after the hearing had finished. We agree. PW had ample opportunity to frame and present her case and it would have been unfair to require the respondents to address PW's claims of indirect discrimination at that late stage. 11 Nor did we allow PW to add a claim that the Area or the Department was liable under s 52 or s 53 of the AD Act. Section 52 makes a third party liable if, among other things, that party permitted a person to discriminate unlawfully. Section 53 makes an employer or principle vicariously liable for the discriminatory acts of its employees or agents in certain circumstances. In the Amended Points of Claim, PW alleged that all three respondents were directly responsible for the provision of health services in New South Wales in accordance with the Health Services Act 1997 (Health Services Act). She did not seek to amend that aspect of her Points of Claim at the hearing. After the hearing, in her reply to the respondents' written submission, she sought to rely on a breach of s 52 and/or s 53 of the AD Act. PW said that the respondents would not be disadvantaged by her relying on those provisions at that stage. We disagree. It would be procedurally unfair to the respondents to allow her to add those allegations after the hearing has finished. Issues 12 The issues are: 1.What is the service that the respondents have allegedly refused to provide to PW? 2. Is that a service that any of the respondents provides? 3. Alternatively, is that a service which any of the respondents has a statutory duty to provide? 4. If so, was any such treatment: a) less favourable treatment than the treatment that was or would have been afforded to a person who was not a transgender person in the same circumstances or in circumstances which are not materially different; and b) "on the ground of" PW being transgender? 5. If so, is PW entitled to a remedy? What is the service that the respondents have allegedly refused to provide to PW? 13 The critical issue in these proceedings is the identification of the service that the respondents have allegedly refused to provide to PW. It is only if the respondents provide those services, or they are under a statutory duty to provide those services, that the refusal will potentially breach s 38M(a). In IW v City of Perth (1997) 191 CLR 1 at 16-17, Brennan CJ and McHugh J said, when interpreting comparable legislation, that: In determining whether a person has refused to provide a service within the meaning of the Act, it is necessary to identify with precision what service has allegedly been refused to that person and what service or services the alleged discriminator provides. 14 The identification of the service is a question of fact: Waters v Public Transport Corporation (1991) 173 CLR 349. On 1 October 2002, at a meeting with Ms Gill, PW said words to the effect of, "I need to have sex reassignment surgery". That request was refused. In her Amended Points of Claim, PW described the services she had been refused as "diagnostic and treatment services in relation to reproductive health and endocrinology". She abandoned that claim at the hearing and filed an amended definition of services saying that it was a surgical operation. She said the operation includes, but was not limited to, certain procedures corresponding with Medicare item numbers. Those procedures were listed as: penis - complete or radical amputation, exploration of spermatic cord, urethroplasty - single stage operation, vaginal reconstruction and neurovascular island flap. These procedures are all listed in Medicare Benefits Schedule. We must determine whether that description of the service identifies the service that PW has been refused with sufficient precision to enable the issues to be resolved. Guidance on this question can be found in High Court decisions on point. 15 In Waters v Public Transport Corporation (1991) 173 CLR 349 nine people with various disabilities complained that they had been discriminated against on the ground of their disability by the removal of conductors from trams in Melbourne and the introduction of scratch tickets. McHugh J noted that the Victorian Equal Opportunity Board acted on the basis that the services provided were that of 'the public transport system'. His Honour said that the services 'which are relevant to the complainant' must be identified and gave the following example: ... if the discrimination alleged was the refusal to all impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved. 16 McHugh J rejected the Victorian Equal Opportunity Board's finding that the services were 'the public transport system' because that description was wide enough to cover every means of transporting the public by road, sea, air and rail. PW did not claim that she had been refused 'hospital services' but that identification of the service would obviously have been too wide. 17 PW was careful not to use the term 'SRS' in her definition of the services she had been refused. She relied on evidence given by Charlotte Roberts, the Manager of Patient Information and Medical Record Services at RPAH, about the number of patients who had undergone certain procedures at RPAH, Concord Repatriation General Hospital and Canterbury Hospital during recent years. The relevant procedures that had been performed on patients at those hospitals were orchidectomy, vulvoplasty, vaginal reconstruction (for congenial absence, gynatresia or urogenital sinus), urethroplasty (an operation for the repair of an injury or a defect in the walls of the urethra), partial or complete amputation of the penis, reduction clitoroplasty for ambiguus genitals and other penile procedures for sex transformation. There had been one case of a vaginal construction (as distinct from a reconstruction) on a female patient. Ms Roberts found no records that referred to operations being performed which amounted to the construction of a vagina or a vulva or female genitals in male patients. 18 Associate Professor Peter Haertsch, a surgeon who is currently performing SRS in a private hospital, gave evidence that the procedures currently being performed in public hospitals, such bilateral orchidectomy and amputation of the penis as well as vaginal reconstruction, are not performed as part of comprehensive SRS procedures. Other secondary procedures such as vulvoplasty, labioplasty and urethroplasty are performed on people who have already had SRS elsewhere. A/Prof Haertsch said that SRS consists of radical amputation of the penis, bilateral orchidectomy, vaginal construction using either inverted penile skin or a segment of colon, labial reconstruction and clitoral reconstruction. Before operating, A/Prof Haertsch requires patients to comply with the 'Harry Benjamin gender dysphoria criteria' which includes two independent psychiatric reports giving the opinion that surgery is appropriate and a report from an endocrinologist to verify that hormonal reassignment has been successful. A/Prof Haertsch said that SRS requires the close cooperation of psychiatrists, endocrinologists, plastic surgeons and colorectal surgeons and cannot be performed on an ad hoc basis in public hospitals. While no special equipment or infrastructure is required, doctors and support staff must be specially trained. 19 Evidence was also given about the procedures that constitute treatment for intersex conditions, although that treatment is not undertaken by RPAH. Dr Jan Walker is the staff specialist in endocrinology at Sydney Children's Hospital. She gave evidence of the work that she does with people whose gender cannot be definitively determined by examining their genitals or children who, at puberty, undergo changes that are contrary to their perceived sex. For girls whose clitoris enlarges abnormally at puberty and who have testes, the testes are usually removed. Dr Walker agreed that that procedure is the same as a bilateral orchidectomy and that the reason for performing that operation on intersex adolescents is for the person's psychological health. On rare occasions it is necessary to fashion a vagina artificially where none exists. In other cases there is some form of vagina which can be fashioned into a functioning vagina. 20 Dr Michael McGlynn, Clinical Director at Sydney Children's Hospital, specialises in adult plastic and reconstructive surgery. Dr McGlynn differentiated SRS from intersex and other surgery on the genitals by saying that SRS is performed on otherwise 'normal' parts of the body. He said surgery for children born with intersex conditions involves surgical reconstruction of organs already present in the child, such as the vagina or the urethra. By comparison, SRS involves the construction of new genitals, rather than the reconstruction of existing genitals. 21 We must define the service that PW has been refused 'with precision' so that the relevant issues can be determined. We find that the service PW requested and that was refused was SRS as a non-chargeable hospital service. It is not accurate to characterise the service as a combination of discrete surgical procedures that are performed in other contexts on other patients. While many of those procedures have elements in common with SRS, SRS is a unique combination of procedures requiring input from psychiatrists, endocrinologists, plastic surgeons and, in some cases, colorectal surgeons. The provision of SRS requires considerable planning and expertise. It is not just a matter of combining and then providing elements of services that are already provided as non-chargeable hospital services in other contexts. Is SRS a service that any of the respondents provide? 22 The respondents submitted that there has been no breach of s 38M(a) because they do not provide the service of SRS and therefore cannot be liable for refusing to provide 'those services'. Ms Gill said that there was no SRS performed at RPAH in late 2002 or early 2003 when PW was requesting that surgery. Nor, as we understand it, is SRS currently performed in any public hospital in New South Wales. A/Prof Haertsch is the only surgeon performing SRS and he does so in a private hospital. In 1976 and 1977, SRS was offered at the Prince of Wales Hospital, but that service was discontinued. It is also clear that neither the Area nor the Department provide SRS as part of any services they provide. Is SRS a service which any of the respondents has a statutory duty to provide? 23 Even if none of the respondents provide the service of SRS, they may be liable under s 38M(a) if they have a statutory duty to provide that service but have refused or failed to do so. In Commissioner of Police, NSW Police Service v Estate of Russell [2001] NSWSC 745 the Supreme Court found that the Police Service (as it then was) had a statutory duty to provide Mr Russell with certain police services. Mr Russell's parents alleged, among other things, that police officers and the NSW Police Service had unlawfully discriminated against their son on the ground of his Aboriginality. The Appeal Panel referred three questions of law to the Supreme Court. One of those questions was: Whether the conduct of the individual respondent constables in the course of their pursuance and arrest of Mr Russell amounted to the provision of a "service" within the meaning of s 19 of the Anti-Discrimination Act , and if so whether such a service within the section was provided by the appellants. 24 Section 19 makes it unlawful to discriminate on the ground of race in the provision of goods and services and is in similar terms to s 38M. Sully J noted that s 6 of the now repealed Police Service Act 1990 gave the Police Service a function 'to provide police services for New South Wales'. Those services were defined to include 'services by way of prevention and detection of crime' and 'the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way': s 6(3)(a) and (b). Sully J found that the Police Service was a public authority and went on to conclude at [44] that: [3] As soon as the late Mr Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr Russell was subsequently handled; or who witnessed the way in which Mr Russell was handled; became thereupon charged with a public duty to provide to the late Mr Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage, "whether arising from criminal acts or in any other way". [4] All of the police officers mentioned in [3] above wholly failed, on the facts as found by the Equal Opportunity Division, to provide the services which they were bound to provide to Mr Russell pursuant to s6(3)(b). 25 Using the same reasoning, the question arises as to whether the respondents in this case failed to provide services that they were 'bound to provide' to PW. The statutory duties of the respondents are set out in the Health Services Act and the Health Administration Act 1982 ( Health Administration Act ). 26 The Director General of the Department of Health is given certain functions by s 8 of the Health Administration Act. Those functions include: (c) to plan the provision of comprehensive, balanced and co-ordinated health services throughout New South Wales, (d) to formulate the programs and methods by which the health needs of the people of New South Wales may be met. 27 Under s 32(1) of the Health Services Act , the Director General of the Department may determine the 'role, functions and activities' of any public hospital under the control of an area health service. Section 32(2) provides that the Minister may "restrict the range of health care or treatment provided by any public hospital". 28 Section 68 of the Health Services Act sets out the 'Medicare Principles and Commitments'. One of those principles is that 'Eligible persons must be given the choice to receive public hospital services free of charge as public patients.' 'Hospital services' are defined to include 'in-patient, out-patient, emergency services (including primary care where appropriate) and day patient services consistent with currently acceptable medical and health service standards.' A medical practitioner is not entitled to charge a patient for a 'non-chargeable hospital service' in a public hospital: s 74(1). A non-chargeable hospital service is defined in s 3 to mean, 'any health service provided to a patient by a public hospital that is a recognized hospital and for which it has been agreed under the Medicare Agreement that the patient is not to be charged, but only if the Medicare Agreement is in force at the time the service is provided.' However, s 68(4) makes it clear that nothing in that section "operates to create in any person legal rights not in existence before the enactment of this section." 29 The Area is an 'area health service' constituted by s 17 of the Health Services Act as a body corporate. The Health Services Act sets out the functions of the Area. The principal reason for constituting an area health service is to facilitate the provision of health services: Health Services Act, s 8. Ms Gill gave evidence that the Area manages all of the facilities within its boundaries, including the facilities at RPAH. She said the Area is involved in strategic planning about the services that will be provided within the Area. That is consistent with s 10 which gives an Area the function of conducting and managing public hospitals under its control. RPAH is a public hospital within the meaning of s 15 of the Health Services Act. 30 None of these provisions impose on any of the respondents a statutory duty to provide any particular non-chargeable hospital service, such as SRS, to public patients. While the Director General has the function of planning comprehensive, balanced and co-ordinated health services and formulating programs and methods for meeting the health needs of the people of New South Wales, the precise content of those services is a matter for the respondents to determine in accordance with the relevant legislative provisions. 31 The situation in New South Wales is similar to that in England and Wales under the National Health Service Act 1977 (UK). In R v North West Lancashire Health Authority, Ex parte A, D & G (2000) 1 WLR 977 the Court of Appeal examined the provisions of that Act when considering an application for judicial review of a decision of the North West Lancashire Health Authority. The decision was to refuse to fund SRS in relation to three applicants. Despite the existence of a general statutory duty in the National Health Service Act, to provide facilities 'for the prevention of illness, the care of persons suffering from illness and the after-care of persons who have suffered from illness' the Court decided that because that duty was limited to the provision of services 'to such extent as he considers necessary to meet all reasonable requirements' it was for the Authority to decide what services it should provide. 32 Nevertheless, the Court agreed that the decision of the Authority not to fund SRS for the applicants should be quashed and remitted to the Authority for reconsideration. One of the reasons for that decision was that it had not given proper weight to the fact that gender identity dysphoria was an illness. In the present case, PW has not applied to the Supreme Court for judicial review of a particular decision. The Tribunal's function is limited to determining whether any of the respondents have breached s 38M(a). We have found that none of the respondents has breached that provision. Conclusion 33 The service that PW has requested and that has been refused must be defined with precision. That service is the provision of SRS as a non-chargeable hospital service at RPAH. The hospital refused to provide that service simply because it does not provide it. For the refusal of a service to be unlawful under s 38M(a) of the AD Act at least one of the respondents must provide that service or must have a statutory duty to provide that service. Although SRS is a 'service' within the meaning of that term in the AD Act, it is not a service which RPAH, the Area or the Department 'provides'. Nor do any of the respondents have a statutory duty to provide that service. Consequently, there has been no breach of s 38M(a) and the question of whether the refusal of a service constitutes unlawful discrimination does not arise. 34 Our conclusion makes it unnecessary to make any findings about the policy or other reasons for not providing SRS at RPAH or the practicality of providing such a service in the future. While the fact that SRS is not provided as a non-chargeable hospital service raises important issues of public policy, they are not issues which the circumstances of this case allow us to examine. Order The complaint is dismissed.