CITATION: Holmes v Northern Sydney Central Coast Area Health Service [2010] NSWADT 163 DIVISION: Equal Opportunity Division APPLICANT Tiger Holmes PARTIES: RESPONDENT Northern Sydney Central Coast Area Health Service FILE NUMBER: 091092 HEARING DATES: 27, 28, 29 April, 2010 SUBMISSIONS CLOSED: 29 April 2010 DATE OF DECISION: 30 June 2010 BEFORE: Patten D - Deputy President; Weule B - Non-Judicial Member; O'Sullivan M - Non-Judicial Member CATCHWORDS: Unlawful discrimination, victimisation, no evidence of either LEGISLATION CITED : Anti-Discrimination Act 1977 Mental Health Act 1990 APPLICANT In person REPRESENTATION: RESPONDENT N Rooney, barrister ORDERS: 1 The complaints are dismissed 2 No order as to costs. REASONS FOR DECISION 1 This was an application for relief in the Equal Opportunity Division of the Tribunal. Ms Tiger Holmes (Ms Holmes) claims that she was unlawfully discriminated against on the ground of her disability contrary to section 49M of the Anti-Discrimination Act [the Act] and victimised contrary to s50. For reasons which will appear the Tribunal is of the opinion that neither discrimination nor victimisation has been established. 2 The applicant, who appeared for herself at the hearing relied on a statement made on 29 March 2010. In that statement she said, as appears to be the case, that in the early months of 2008 she was suffering from mental illness, the symptoms of which included thoughts of self harm and suicide, paranoia and delusions. She complains that the alleged discrimination and victimisation was perpetrated by Manly Hospital for whose acts the respondent is responsible. 3 According to the applicant the events of which she complains occurred in the period 9 to13 February 2008. On 9 February she was apparently found by police near a cliff and was taken to Manly Hospital, the police fearing that she was likely to harm herself. In effect she seems to allege that she was refused proper treatment by the hospital. 4 On 12 February she asserted that she was again taken by police to the hospital where she was examined by Drs Ventura and Ladd. Although her statement was rather vague she seems to concede that she remained in the hospital for a period but that whilst there she "was again searched and forcibly x rayed against my will my consent was not asked" 5 The vagueness of Ms Holmes recitation of events is fortunately overcome by the hospital records and the evidence of relevant doctors. It is clear from this material that Ms Holmes was indeed brought to the hospital by police at about 2am on 10 February 2008. She had told police by telephone that she felt like driving her car over a cliff. Her medical situation was reviewed by Dr Gavin Allison a Psychiatric Registrar sometime after 9am. 6 Dr Allison had available to him and read medical records which included a discharge summary dated 7 February 2008 from Hornsby Hospital Psychiatric Unit and reference to the fact that she had previous admissions to James Fletcher Hospital. He checked this reference by telephone and found on multiple occasions she had been admitted to James Fletcher Hospital for " suicidality and for episodes of deliberate self harm" and that she also had a history of violence and of hiding objects on her body. James Fletcher Hospital had a policy of not admitting her without first requiring her to remove all her clothing and imaging her body. At that point it appears that Ms Holmes was an involuntary patient at Manly Hospital having been placed on a schedule in accordance with the Mental Health Act. 7 Notwithstanding this, when Dr Allison having prepared himself by reading and otherwise absorbing the relevant material about Ms Holmes, sought to interview her he found she had absconded from the hospital. Police were informed and requested to apprehend her and return her to the hospital. 8 Later on the same day Ms Holmes was apprehended by police and returned to the hospital where Dr Allison interviewed her and performed a mental state examination. According to his evidence Dr Allison discussed her possible admission as a voluntary patient which she adamantly refused and alternatively whether a concrete plan could be formed for her future in the community, a suggestion much more acceptable to her. In the result Dr Allison following a telephone consultation with Dr Antonella Ventura, his superior, decided not to admit Ms Holmes as an involuntary patient as she did not meet the relevant criteria but rather to discharge her to be followed up by "The Extended Hours Team". 9 Ms Holmes then left Dr Allison's presence. About 10 minutes later he heard shouting from the direction of the ambulance bay near the Emergency Department. He investigated and saw Ms Holmes who shouted "I'm going to kill you" and "I'm going to kill that fucking psych reg". She broke from the restraining hand of a security guard and lunged at Dr Allison's head with a metal fibrillator paddle which she picked up from a nearby trolley. Dr Allison retreated to a safer place. While he did so it appears that Ms Holmes picked up a bottle and threw it at a nurse striking her on the head. Security guards restrained Ms Holmes and police were summoned. 10 Following discussion with police at the scene and further discussion with Dr Ventura by telephone, Dr Allison maintained his clinical opinion that Ms Holmes did not meet the criteria for involuntary admission under the Mental Health Act and as a consequence it was left to the police to take whatever action was thought appropriate. 11 Dr Allison's version of events is amply supported by copious, apparently contemporaneous, notes in evidence before the Tribunal. 12 According to the applicant on February 12 police, following a telephone call, apprehended her at North Head. She told police that she had been drinking alcohol and that there were "voices in her head". She was taken to Manly Hospital by police after, according to Ms Holmes, the hospital's crisis team refused to assess her at North Head. At the hospital she was assessed by medical staff and admitted, being discharged the following day. According to evidence given on behalf of the respondent she discharged herself against medical advice but again it had been concluded that she did not meet the criteria for involuntary admission. 13 Two weeks later she again presented herself at the hospital and was admitted overnight. The following day she was transferred to the Mental Health Intensive Care Unit at Hornsby Hospital for 'diagnostic clarification'. 14 In support of her case Ms Holmes provided a number of statements from lay witnesses who testified as to her presentation to them at relevant times. These statements included lengthy and somewhat unhelpful polemical dissertations from a Mr James Rickertson. Some of the witnesses also gave oral evidence. However no expert evidence was given to challenge the medical opinions of Dr Ventura and Dr Allison as a consequence of which we accept their correctness. In saying this we do not doubt that in February 2008 Ms Holmes presented to lay persons as suffering a mental disorder. 15 In the respondent's case evidence, in addition to the evidence of Dr Allison, was given by Dr Dennis Ladd, psychiatrist, at the relevant time acting area clinical director of the mental health service which operated out of Manly Hospital, Dr Ventura, who, at the time, was Director of Clinical Services of Northern Beaches Mental Health Service and Dr Paula James, in 2008 Director Northern Beaches Health Service. The evidence of all these practitioners generally supports the respondent's position that at all times the applicant was treated competently and appropriately with due regard not only to her mental condition as it presented itself but also in light of what the hospital's records disclosed [rightly or wrongly] in order to fulfil its responsibilities to its staff. 16 In her case Ms Holmes relied heavily on a letter which she regarded as of great significance when in truth it had none. The letter dated 10 December 2002 was written by the respondent over the signature of Dr Ladd to the presiding magistrate at Burwood Local Court. The letter, perhaps unwisely concluded with these paragraphs: "Following discussion of Ms Holmes recent referral to the Mona Vale C.H.C. with several of my clinical colleagues it was felt that Ms Holmes main psychological problems relate primarily to her long standing severe underlying Personality Disorder of the Antisocial and Borderline Type. From past contact with this woman it was also felt that Ms Holmes did not benefit from any of the treatment offered by our services. I believe Ms Holmes is not a mentally ill person under the Mental Health Act. There is nothing we could offer Ms Holmes that would alter her behaviour or lifestyle. In deed there are real concerns for the safety of staff in seeing this woman from an O.H.&S point of view given her alleged past violent assaults on staff in the prison system. Ms Holmes I believe is not a suitable person to be followed up by the public mental health services in the Northern Beaches of Sydney, we will not be offering her an appointment for assessment should she contact us." 17 In the opinion of the Tribunal the letter has simply no relevance to this case. It was written more than 5 years before the relevant events and if it was intended to indicate that in breach of its public duty the hospital would refuse to treat Ms Holmes in the future that manifestly did not occur. 18 The applicant relied on 7 specific complaints which we deal with seriatim: 1 In February 2008 Manly Hospital staff forcibly strip searched me. Although pressed in cross examination as to the precise nature of what allegedly occurred Ms Holmes, in the opinion of the Tribunal, failed to do so. Her evidence amounted to no more than that she was required to remove her clothes. There is no doubt that this occurred but in the opinion of the Tribunal it was a reasonable requirement given the information as to Ms Holmes history in the possession of the hospital coupled with her own violent behaviour on February 10. A requirement that the applicant remove her clothing had nothing to do with her mental disability but rather was directly related to her reputation for and demonstration of a propensity for violence. Incidentally the applicant called no evidence tending to cast doubt upon the accuracy of the material in the hospital's possession as to her previous violent behaviour. 2 In February staff x rayed me without consent or permission, stating on medical records they were searching for weapons. Nothing was found. The respondent admitted that the applicant was x rayed to ensure that she was not in possession of concealed weapons. Again having regard to the material in the hospital's possession this was a precautionary measure related to the applicant's presumed propensity for violence rather than any disability. 3 Dr Ventura refused to give me appropriate treatment as instructed by Dr Dennis Ladd and also referred to me as "schizo" and other names. As to this allegation, in the first place it is appropriate to note that Dr Ladd was in no position to give Dr Ventura, his superior, any instruction at all. There is no evidence that he sought to do so. There is also no evidence that Dr Ventura provided other than appropriate treatment. Her evidence as to this was not challenged. Dr Ventura vehemently denied using the extremely unprofessional expression 'schizo' or any other derogatory term. It is inherently unlikely that she would have done so having regard to her professional standing and the Tribunal accepts her evidence upon the subject. 4 That hospital management a male executive officer who was in emergency stated that I was taking legal action against a Newcastle hospital and had victimised me. In her statement the applicant said 'I was also victimised by hospital management when Arthur my carer was there visiting a hospital management staff member announced that I was suing John Hunter Hospital'. The 'Arthur' referred to was Mr Arthur Thornhill. He said in a statement 'I recall that I discussed [the applicant] with a nurse. I told the nurse that she had not always got the right treatment which started in Newcastle cause she had made a complaint, I had hoped that this hospital would have treated her better. The fact that a member of the hospital staff became aware, if it were the case, that the applicant had brought proceedings against John Hunter Hospital is not of course, without more, evidence of victimisation within s50 of the act. As in this case all the evidence seems to the Tribunal to point to the fact that the applicant was appropriately treated there is no evidence of victimisation. 5 That Manly Hospital under the instruction of Dr Dennis Ladd and other hospital executive staff refused to give me appropriate medical treatment and also refused to allow the crisis unit to attend to me sitting on North Head threatening suicide, section breached 49M. Presumably the reference to Dr Ladd is a reference to his letter of 10 December 2002 which we have dealt with above. He was in no position to instruct anybody to act contrary to law. There is no evidence anyone else purported to give any such unlawful instruction. As to the alleged failure of the crisis unit to attend the applicant at North Head we accept the evidence of Dr Ventura that the crisis unit was not prevented from going to North Head provided police were also present. Such a requirement did not involve unlawful discrimination given that it was based on the applicant's reputation for violence rather than any disability. 6 That Dr Dennis Ladd and Manly Hospital vicariously discriminated against me by instructing and inciting other health workers at the hospital not to treat me and only treat me in a manner which was inappropriate degrading and demeaning , eg stripping my clothes from me and placing me in a room with no bed no blankets and a male security officer. Dr Dennis Ladd instructed other health professionals to find me Not mentally ill because he did not want to treat me as he had previously written in my medical file. A copy has been sent to the ADT. Section breached 52 53. There is no evidence that Dr Ladd or the hospital conducted themselves as alleged. It would of course have been illegal for them to do so. As indicated earlier the applicant was required, for what seem to us valid reasons, to remove her clothes. There was also evidence that she was placed temporarily in a room probably with a security guard outside for her own protection and the protection of hospital staff. This seems, in the circumstance, to have been a reasonable precaution and in the opinion of the Tribunal involved no discrimination against her on the ground of her disability. 7 That Dr Ladd incited health workers at Manly Hospital not to treat me and informed staff of information which was inappropriate and not medically related causing myself embarrassment. This complaint is largely repetitive of complaint 6. There is no evidence to support it additional to evidence already referred to. For reasons given in respect of complaint 6 there was no unlawful discrimination. 19 In the result Ms Holmes has failed to establish any of her complaints. The Tribunal makes the following orders: 1 The complaints are dismissed, 2 No order as to costs. 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.