Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Dezfouli v Pulley [2013] NSWADT 223 Hearing dates: 13 August 2013 Decision date: 11 October 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of race discrimination to proceed. Catchwords: ANTI-DISCRIMINATION - leave - complaint of race discrimination by forensic patient against treating psychiatrist -complaint declined as lacking in substance -- whether fair and just to grant leave for complaint to proceed - whether treating doctor providing a service to applicant when giving expert evidence to the Mental Health Review Tribunal Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Principal judgment Parties: Saeed Dezfouli (Applicant) Rafe Pulley (Respondent) Representation: Counsel E Raper (Respondent) Ms M Turner (Guardian ad litem for Applicant) Crown Solicitor's Office (Respondent) File Number(s): 131047 reasons for decision Introduction 1Mr Dezfouli is an Iranian man who is a patient at the Forensic Hospital. He complained to the President of the Anti-Discrimination Board that his treating psychiatrist, Dr Pulley, discriminated against him on the ground of his race when providing an expert report about him to the Mental Health Review Tribunal (MHRT). The President declined the complaint as "lacking in substance" and Mr Dezfouli has elected to have his complaint referred to the Tribunal. Before his complaint can go ahead the Tribunal must give its permission or 'leave'. The test is whether it is fair and just in all the circumstances to do so: Anti-Discrimination Act 1977 (AD Act), s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 I have decided to refuse leave for Mr Dezfouli's complaint to go ahead because it is highly unlikely that he would be able to prove that Dr Pulley has breached the AD Act. 2The Tribunal appointed Ms Turner as Mr Dezfouli's guardian ad litem: AD Act, s 71(4). Dr Pulley was represented by counsel. Background 3In 2004 Mr Dezfouli was found not guilty by reason of mental illness of two charges - manslaughter and "maliciously damage property by fire". He has been a forensic patient since 12 February 2002. Dr Pulley is an employee of the Justice Health and Forensic Mental Health Network Inc, a statutory health corporation established under the Health Services Act 1997. As Mr Dezfouli's treating psychiatrist, he provided a report to be considered at a hearing of the Mental Health Review Tribunal on 6 December 2012. In that eleven page report dated 15 June 2012 (but, according to Dr Pulley, actually written on 4 December 2012) he recommended that Mr Dezfouli continue to be held in the Forensic Hospital. 4Ms Turner, on behalf of Mr Dezfouli, says that one of the reasons Dr Pulley made that recommendation is that he is biased against Mr Dezfouli because of his race. Dr Pulley believes that the report is fair, balanced and impartial. The complaint 5According to Mr Dezfouli, Dr Pulley's report: (1)contains factual errors; (2)disregards positive reports and statements about his mental state written by other doctors and nurses. 6Dr Pulley admits that his report contains some factual errors about the charges laid against Mr Dezfouli. He also concedes that at least two dates including the date of the report are incorrect. 7Mr Dezfouli made the point that Dr Pulley did not refer to any of the positive comments and opinions various health professionals had made about him in the past. For example, in a letter dated 10 May 2005 Professor Mullen wrote that the fact that Mr Dezfouli showed some sensitivity to his own feelings made "a diagnosis of chronic paranoid schizophrenia somewhat unlikely." Dr Pulley says that he was aware of letters written by Professor Mullen in May 2005 and July 2006 but chose not to refer to them because they addressed the question of fitness to stand trial which is no longer an issue. 8Mr Dezfouli also points out that Dr Pulley described him as "hostile" when, according to a report by his case coordinator dated 3 December 2012, he has shown no overt psychotic symptoms. Dr Dezfouli denies being hostile, violent or aggressive during the entire time he has been detained. While other health professionals routinely describe Mr Dezfouli as articulate and intelligent, Dr Pulley makes no reference to those observations. In fact, Dr Pulley did not write anything positive about Mr Dezfouli's mental state in the entire report. 9Dr Pulley's response is that the description of Mr Dezfouli as hostile was drawn from descriptions by previous treating clinicians. He points out that being articulate and intelligent does not preclude him from being hostile. Similarly, being hostile does not necessarily imply that Mr Dezfouli is aggressive or violent. Mr Dezfouli dismisses those explanations as being 'stupid'. 10Ms Turner says that Mr Dezfouli has concluded that Dr Pulley is motivated by racism because of a comment that Dr Pulley made to him. Mr Dezfouli says that in early June 2012 when he was in the nurse's station, he asked Dr Pulley if he could have a 'quick chat' to him. He raised an issue with him and asked him when they could talk in more detail about it. While he does not recall what prompted the remark, Mr Dezfouli alleges that Dr Pulley then said, "People like you come to Australia to commit crimes." No one overheard this alleged remark. Dr Pulley denied ever having made such a statement and says he has always treated Mr Dezfouli with dignity and respect. Mr Dezfouli says Dr Pulley is smart enough to know that if he admits making such a statement it will prove he is racist. The law 11Racial discrimination in the provision of goods or services is unlawful. Section 19 of the AD Act states that: 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. 12Discrimination on the ground of race is defined in s 7. I understand Mr Dezfouli to be relying on direct race discrimination as defined in s 7(1)(a): (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if the perpetrator: (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 of a different race or who has such a relative or associate of a different race 13Race need not be the substantial or even a dominant reason for the doing of an act as long as it is one of the reasons: AD Act, s 4A. Issues 14The issue is whether in all the circumstances it is fair and just for Mr Dezfouli's complaint to go ahead. In this case, that depends on the merits of the complaint. If Mr Dezfouli's complaint is highly unlikely to succeed, it would not be fair or just to allow it to go ahead. In order to determine whether Mr Dezfouli's complaint has merit, I will address each of the matters he would have to prove to substantiate the complaint. In summary, Mr Dezfouli would have to prove that: (1)in December 2012, Dr Pulley wrote a report about him which was inaccurate and biased; (2)by writing that report, Dr Pulley was providing a service to Mr Dezfouli; (3)Dr Pulley failed to provide Mr Dezfouli with that service or provided that service on unfavourable terms; (4)if Dr Pulley had been providing that service to a person who was not of Iranian background, he would have written a more favourable report; (differential treatment) and (5)at least one of the reasons Dr Pulley wrote an unfavourable report was because Mr Dezfouli is Iranian (causation). Note: In determining whether such an inference can be drawn, the tribunal would need to decide whether Dr Pulley said to Mr Dezfouli in May 2012, "People like you come to Australia to commit crimes." Was the report inaccurate and biased? 15The report was inaccurate in some relatively minor respects. I agree with Dr Pulley that even if those mistakes had not been made, the recommendation would have been the same. 16I accept that a tribunal hearing this case is likely to find that the report did not mention other opinions, however faintly expressed, about Mr Dezfouli's diagnosis or positive observations of Mr Dezfouli's behaviour. Whether those omissions were critical to Dr Pulley's final recommendation is not known. While it is not the role of the Tribunal at this stage to make findings of fact, I accept that based on the evidence as it currently stands, it would be open for the tribunal to find that the report omitted any reference to opinions or observations of Mr Dezfouli's behaviour which may have put his mental health in a more positive light. Was Dr Pulley providing a service to Mr Dezfouli? 17Dr Pulley says that his role when writing the report was to provide expert evidence to the MHRT. While he is also Mr Dezouli's treating psychiatrist, he is not providing him with any treatment or other service by writing the report. 18The MHRT must review the case of each forensic patient every 6 months: Mental Health (Forensic Provisions) Act 1990, s 46(1). Under s 43, the MHRT "must not make an order for the release of a forensic patient unless it is satisfied, on the evidence available to it, that: (a) the safety of the patient or any member of the public will not be seriously endangered by the patient's release, and (b) other care of a less restrictive kind, that is consistent with safe and effective care, is appropriate and reasonably available to the patient or that the patient does not require care." 19The evidence available to the MHRT included Dr Pulley's report. That report addressed the criteria in s 43. 20It is unlikely that a tribunal hearing this complaint would be satisfied that the provision of expert evidence to the MHRT was also the provision of a service to Mr Dezfouli. Mr Dezfouli did not ask Dr Pulley to write the report nor did he pay for it. The report was about Mr Dezfouli but it was prepared for the purpose of providing expert evidence to the MHRT. If a tribunal hearing this matter decided that no services were provided to Mr Dezfouli, the issue of whether or not services were refused or provided on unfavourable terms would not arise. 21My conclusion on this issue makes it unnecessary to address any of the other matters Mr Dezfouli would have to prove. But I will briefly look at the question of causation. Causation 22At least one of the reasons for Dr Pulley writing the report in the way that he did must be Mr Dezfouli's race. The only allegation linking the way the report was written with Mr Dezfouli's race is the alleged statement that, "People like you come to Australia to commit crimes." Firstly, Mr Dezfouli must prove, on the balance of probabilities, that Dr Pulley made that statement. He has no witnesses and Dr Pulley denies saying those words. Given those circumstances it is highly unlikely that a tribunal hearing this case would find that Dr Pulley made that statement. Secondly, even if the tribunal found that the statement had been made, Mr Dezfouli would have to persuade the tribunal to draw an inference, on the basis of a single remark, that race was a factor motivating Dr Pulley to write the report in the way that he did. 23Race is highly unlikely to have been a factor in relation to the inaccuracies in the report especially given that those inaccuracies related to dates and the range of charges against Mr Dezfouli. A more plausible explanation is that Dr Pulley did not check some of the factual details in the report before he sent it. In relation to the failure to refer to Professor Mullen's comments or to any favourable comments from other doctors and nurses, a more plausible explanation for doing so is that Dr Pulley did not consider those matter to be relevant to his opinion. Whether or not that view is justified is not in issue in these proceedings. 24Overall, it is my view that the complaint is highly unlikely to succeed if it were to proceed to a hearing and it is fair and just for leave to be refused. Order Leave is refused for the applicant's complaint of race discrimination to proceed. ********** 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: 11 October 2013