Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Liao v St Vincent's Hospital Sydney Ltd [2013] NSWADT 119 Hearing dates: 23 April 2013 Decision date: 30 May 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave to proceed is refused Catchwords: LEAVE -complaint of discrimination against hospital declined by President of Anti-Discrimination Board - whether fair and just for complaint to go ahead - merits of the complaint are relevant - complaint lacks substance Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Jones v Ekermawi [2009] NSWCA 388 O'Callaghan v Loder [1983] 3 NSWLR 89 Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 17 Category: Principal judgment Parties: Yuhong Liao (Applicant) St Vincent's Hospital Sydney Ltd (Respondent) Representation: Y Liao (Applicant in person) K Cvitkovic, Executive Officer, St Vincent's Hospital (Respondent) File Number(s): 131022 REASONS FOR DECISION 1Ms Liao has applied for permission for a complaint of race and disability discrimination to go ahead despite the fact that the President of the Anti-Discrimination Board declined the complaint: Anti-Discrimination Act 1977, 96. The Tribunal has a discretion to grant or not to grant leave for a complaint to proceed but in determining that question it should be guided by what is fair and just in the circumstances: Jones v Ekermawi [2009] NSWCA 388. I have decided to refuse to grant leave because Ms Liao's complaint lacks merit and is unlikely to succeed if it were to proceed. Background and allegations 2Ms Liao migrated to Australia from China in March 2005. She has a mental illness. On 1 August 2012 she was taken by ambulance to St Vincent's Hospital Psychiatric Emergency Care Centre (PECC). She was admitted as a voluntary patient and stayed the night on the ward. Her complaint relates to the conduct of two psychiatrists - Dr Tietze, who is a senior physician, and a more junior doctor, Dr Baker. They assessed her the following day, 2 August 2012. 3Ms Liao agreed that when she first arrived at the hospital she was treated fairly. But after that she complains that: (1)when interviewing her, Dr Tietze said to her, "Why don't you go back and live in China?" (2)neither doctor assessed her properly; (3)she was incorrectly diagnosed; (4)she asked that her blood pressure be taken but it was not taken; (5)the Hospital did not forward her records to her treating doctor or psychologist; (6)the medication that she was prescribed was not recorded on the Discharge Summary Report; (7)the referral report was not signed by a doctor; and (8)Dr Baker has not responded personally to her complaint. 4Ms Liao's complaint is on the ground of her race (Chinese) and her disability (mental illness). I have assumed that, apart from the first allegation which is said to amount to race discrimination, the other allegations are alleged to constitute discrimination on the grounds of both race and disability. 5The respondent denies treating Ms Liao any differently from the way they treat or would treat any other patient but apologised to Ms Liao if she feels aggrieved. Legal principles 6It is unlawful for a person, such as the respondent, to discriminate against another person on the ground of race or disability by refusing to provide that person with a service or in relation to the terms on which a service is provided: Anti-Discrimination Act s 19 and 49M. 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services. 49M Provision of goods and services (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. 7To be unlawful the conduct must constitute either direct or indirect race or disability discrimination as defined in s 7 and s 49B. I understand Ms Liao's complaint to be one of direct discrimination which, in relation to disability discrimination, is defined as follows: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, 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 does not have that disability or who does not have such a relative or associate who has that disability 8Race discrimination is defined in similar terms in s 7. 9In order to prove that any of the treatment about which Ms Liao complains breaches s 49M or s 19 of the Anti-Discrimination Act, she would have to: (1)identify the service that the respondent was providing to her and set out the ways in which that service was refused or provided on less favourable terms; (2)establish that the respondent treated her less favourably than it would have treated a person not of her race or who did not have her disability in the same or similar circumstances (differential treatment); and (3)establish that at least one of the reasons for that treatment was her race or disability (causation). 10It is likely that a tribunal hearing this complaint would accept that the respondent is providing a service of assessing, diagnosing and treating Ms Liao. The first four allegations relate to a service of that kind. Allegations 5 - 7 relate to record keeping and communication with other health practitioners. While it is not so clear that those kinds of activities are the provision of a service to Ms Liao, I accept for the purpose of these proceedings, that they are. 11A Tribunal hearing this complaint would almost certainly find that the eighth allegation, that Dr Baker has not responded personally to her complaint, does not relate to any service provided by the hospital. That allegation relates to the investigation and resolution of the complaint, not to the provision of a service by the hospital to Ms Liao. It would not be fair or just for that part of the complaint to proceed because it is likely to fail. 12Allegation 4 is an allegation that a "service", the taking of a blood pressure reading, was refused. Ms Liao says that she asked four times for her blood pressure to be taken. She says she takes blood pressure tablets and because she is Chinese they did not take her blood pressure. Dr Tietze's response was that: Given that she was on a regular and as needed (PRN) medication regimen, it would not have been appropriate to revise her medications again so quickly. And as her blood pressure had been measured twice in the normal range the previous day in ED while she was in a distressed state, there was no medical indication to repeatedly re-measure it. . . 13The hospital does not provide a "service" of taking a patient's blood pressure on demand. Consequently, Allegation 4 does not constitute the refusal of a service. Even if it did, it is unlikely that a Tribunal hearing this case would find that it was discriminatory on the ground of race or disability to refuse to take Ms Liao's blood pressure. The reasons for the refusal as set out in Dr Tietze's response are credible. There is no direct evidence, nor any evidence from which an inference could be drawn, that a reason for that refusal was Ms Liao's race or disability. Leave is refused for that part of the complaint to proceed. 14As well as occurring during the course of providing or requesting a service, the conduct about which Ms Liao complains must be the refusal of a service or relate to the terms on which a service is provided. The terms on which a service is provided is a reference to the elements of the contractual relationship between the parties. It does not necessarily include the manner in which a service is provided. If the Tribunal hearing this case accepted that Allegations 1, 2, 3, 5, 6 and 7 relate to the terms on which the service is provided, it would be necessary to consider whether any of those allegations constitutes discrimination on the ground of race or disability. 15In relation to the differential treatment part of the test for direct discrimination, Ms Liao nominated another patient, "Judith" as a comparator. She said "Judith" was in the hospital at the same time as her and "received constant good medical treatment and service". As "Judith" was also in the PECC it must be the case that she also has a mental illness. Consequently she cannot be a comparator in relation to any allegation of disability discrimination. The comparator must be a person who does not have Ms Liao's disability. I accept that "Judith" could be a comparator in relation to the complaint of race discrimination if she is not Chinese. But there is no specific evidence as to how "Judith" was treated so there is no basis on which the treatment she was afforded can be compared with the treatment Ms Liao was afforded. In such cases the Tribunal would have to rely on a hypothetical comparator. Go back to China remark 16Ms Liao says that when Dr Tietze was interviewing her with Dr Baker, Dr Tietze asked her questions about her background and her family. She told him that she has a very good family and that they love each other very much. She said that her parents have good jobs and are paid well. When Ms Liao and her daughter are struggling financially, they send her money. Ms Liao said that Dr Tietze then said to her, "Why didn't you go back to China?" She became angry and agitated when he asked that question. She turned to Dr Baker who she says is an Asian doctor, and asked whether he had heard Dr Tietze ask her to go back to China? Dr Baker replied, "He didn't say that you have to go back to China." Ms Liao said that she protested that she has an 18 year old daughter and a mortgage, so she has no reason to go back to China. 17In the respondent's letter to the President of the Anti-Discrimination Board, Dr Tietze admits asking Ms Liao on two occasions why she didn't go back to China. He explained those comments in the following way: My two questions about why she didn't take the option of returning to China came in the context of my trying to understand why she had not returned there when she described her home country in idealised terms while being extremely critical of Australia. In addition, she described unproblematic workplace experiences in China, and described her family in China as loving and highly supportive. 18Ms Liao said that no other health practitioner has ever asked her why she doesn't go and live in China. She said that Dr Tietze thinks that she should be "cast out" from this country. 19I accept that it is likely that Dr Tietze would not have made such a remark to a person who was not Chinese. That means that the differential treatment element of direct discrimination is likely to be satisfied. I also accept that it is likely that a Tribunal hearing this case would conclude that one of the reasons Dr Tietze made the remark was because Ms Liao is Chinese. There were also other reasons, as outlined by Dr Tietze. 20A Tribunal hearing this complaint would be likely to find that the alleged conduct relates to the manner in which Ms Liao was treated rather than the terms on which a service was provided. Dr Tietze, on behalf of the hospital, admitted making those remarks and apologised to Ms Liao. This allegation lacks merit and leave for it to proceed is refused. Doctors did not assess me properly 21Ms Liao says that neither Drs Tietze nor Baker assessed her properly because they asked her questions about the past rather than focusing on what is happening to her now. Dr Tietze's response to that allegation was that: Ms Liao also seems to have been upset about my asking questions about her personal life. . It was crucial to assess her reasoning in making various decisions, and to assess the impact and relevance of present and historical events . . .My focus on assessing her reasoning was especially important because of the risk of self harm and suicide, where assessment of judgement and decision making is a key part of risk assessment and management . . 22The service which the hospital was providing to Ms Liao was assessing, diagnosing and treating her mental illness. There is a significant question of fact which has not been determined, that is whether Ms Liao was assessed "properly". In my view, a Tribunal hearing this case would be likely to find that asking personal questions about her past is standard practice when assessing and diagnosing a patient. Even if Ms Liao considers that she was not assessed "properly" that does not constitute discrimination unless the reason she was not assessed "properly" was her race or disability. The Tribunal's conclusion is likely to be that the doctors were not treating Ms Liao any differently from any other patient of a different race or who did not have a disability. Wrong diagnosis 23Ms Liao says that her psychologist has diagnosed her as having anxiety and suffering from panic attacks. On the discharge summary, Ms Liao's diagnosis is recorded as "situational crisis" and "histrionic personality style". Dr Tietze's explanation for this diagnosis was that: Ms Liao has received a range of psychiatric diagnoses from different care providers. Apart from "depression" and "anxiety" these include: "Mixed anxiety-depression/borderline personality disorder (from Liverpool Hospital); "Adjustment Disorder with mixed anxiety and depression" (from her psychologist); " Our diagnosis of "Situational crisis" was based on the fact that during her stay at SVH she was displaying serious but non-specific symptoms of distress in the context of situational stressors, and by her own admission was having problems coping with stress. The diagnosis of "histrionic personality style" was congruent with her symptoms and behaviour. It is my opinion she did not meet the criteria for Major Depressive Disorder or any of the DSM-IV-TR anxiety disorders. While Ms Liao may have had different expectations of what the diagnosis should be, the diagnosis was based on several medical interviews, extensive observation by the nursing and medical staff, and review of collateral information. 24Again, the service which the hospital is providing to Ms Liao is assessing, diagnosing and treating her mental illness. There is a factual dispute as to whether the diagnosis of "situational crisis" was "correct". Even if Ms Liao could prove that this diagnosis is not "correct" that does not constitute discrimination unless at least one reason she was not diagnosed correctly was her race or disability. It is not discriminatory on the ground of race or disability to diagnose Ms Liao with an illness which no other doctor has previously given or with which Ms Liao disagrees. This allegation is highly unlikely to be substantiated if the matter proceeds to hearing. Record keeping allegations 25Dr Tietze's response to the three record keeping allegations were as follows: If it is the case that the discharge letter did not reach the patient's doctor and psychologist then I can only apologise for this oversight . . In the case of her doctor it is possible that confusion arose because at the time of admission she reported a different GP's name for inclusion on the record. The Discharge Summary lists setraline 50 mg mane, which was the only psychiatric medication prescribed. Ms Liao was given one dose of 100 mg on 2 August 2012. . . It is not clear from the file notes why the discharge dose is back to her old dose of 50 mg. However, it is normally my practice not to increase anti-depressant doses during brief PECC admissions (as there is insufficient time to assess the impact of such additional medication) so it is likely that this was a decision on my part to reduce it back to 50 mg and which was accidentally not documented in the file notes. 26The discharge summary was not signed or dated at the end of the document. Dr Baker's signature is on the front page. Dr Tietze said that Dr Baker wrote the discharge summary under his supervision. 27There is no direct evidence, nor any evidence from which an inference can be drawn, that any of these oversights were prompted, even in part, by Ms Liao's race or disability. These allegations are likely to fail if the matter proceeds to hearing. Order Leave is refused. ********** 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: 30 May 2013