Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Colgar v Curtin [2013] NSWADT 255 Hearing dates: 5 November 2013 Decision date: 12 November 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of presumed disability discrimination to proceed. Catchwords: ANTI-DISCRIMINATION - whether fair and just for declined complaint of disability discrimination against doctor to proceed - whether doctor providing services to mother of 10 year old patient - Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Principal judgment Parties: Nezahat Colgar (Applicant) Julie Curtin (Respondent) Representation: N Colgar (Applicant in person) Curwoods Lawyers (Respondent) File Number(s): 131098 reasons for decision Introduction 1Ms Colgar complains that Dr Curtin, Clinical Senior Staff Specialist in the Haematology Department of Westmead Children's Hospital, has discriminated against her on the ground of a presumed mental illness in breach of the Anti-Discrimination Act 1977. Ms Colgar says that when she was at the Hospital seeking treatment for her 10 year old son, Dr Curtin ignored her son's symptoms, did not do her job properly, sent her to a mental hospital to cover up her colleagues' mess and continually called her a mentally ill person. Mrs Colgar's main concern is that the Hospitals' records state that she is mentally ill and that means her son cannot get the treatment which he desperately needs. 2The President of the Anti-Discrimination Board declined the complaint as lacking in substance. Ms Colgar requested that it be referred to the Tribunal. She needs the Tribunal's permission before her complaint can go ahead: AD Act, s 96. Ms Colgar has the onus of persuading the Tribunal that it is fair and just for her complaint to proceed, keeping in mind the purposes of the AD Act: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ. Background 3The Hospital provided a summary of Ms Colgar's interactions with various doctors including Dr Curtin and the tests which were undertaken on her son. Ms Colgar expressed general disagreement with the Hospital's characterisation of these events but did not challenge any of the assertions in particular. I will first set out the Hospital's version and then set out Ms Colgar's allegations. 4According to Dr Curtin the most relevant facts in relation to the complaint include: (a)the child was extensively investigated for symptoms of breathlessness and cough from the age of two, by both private doctors and respiratory physicians at the Hospital. On 7 May 2012 doctors from the Hospital raised concerns regarding the number of investigative procedures that the child had undergone despite essentially normal investigations. (b)From the end of 2011 the child was investigated privately by a number of specialists after the Applicant reported symptoms including tiredness, whole body swelling, high fevers, skin changes over the knees and knuckles, bruising, anaemia, pain in the knees and poor memory. (c)On 24 August 2012 it was confirmed by the Hospital doctors that the child did not have an immunological disorder. (d)On 13 September 2012 it was confirmed by the Hospital doctors that the child did not have evidence of a haematological disorder. (e)On 21 September 2012 it was noted in the clinical records that the child had undergone a series of tests including DNA, ANA and blood tests that were all reported as normal. (f)On 26 September 2012 it was confirmed, after examination by a paediatric orthopaedic surgeon, that the child had no evidence of a musculoskeletal abnormality. (g)On 19 October 2012 the child was seen by Dr Paull at the Hospital. On this date the Applicant requested cell functioning tests, protein testing and stool analysis for malabsorption and infection. She had indicated previously her belief that the child was dying and no-one would help her. On examination, Dr Paull recorded that the child was well. Dr Paull was concerned about the Applicant's demands for further testing despite reassurance that the child's symptoms were unrelated to organic disease. (h)In November 2012 the Applicant made a complaint directly to the Hospital. As a consequence of this complaint, Dr Curtin agreed to see the child and the Applicant as an objective and independent clinician. (i)Between 28 November 2012 and 18 December 2012, Dr Curtin saw the Applicant weekly, but saw the child on only 2 of these occasions. The Applicant requested examination of the child's fibroblasts and cell signalling and reported again her belief that the child may have bone marrow failure and was not digesting his food properly. She provided Dr Curtin with a number of internet printouts and handwritten notes regarding the various disorders that she believed the child might have. (j)On 5 December 2012 Dr Curtin referred the child for dermatological review after noting mild thickening of his skin over his knees and knuckles. On 20 December 2012 a dermatologist reported a normal examination. (k)On 11 December 2012 Dr Curtin arranged for the child to undergo muscle fitness tests which the Applicant refused. (l)Dr Curtin saw the child and the Applicant on 12 December 2012, on which date the Applicant reported that the child had been experiencing suprapubic pain for the previous 3 weeks. Despite a normal examination, Dr Curtin nonetheless suggested blood tests, which the Applicant was initially reluctant to have performed. After the blood tests were undertaken, it was confirmed that no significant abnormality was detected and inflammatory markers were normal, as were the child's hormones. (m)On 18 December 2012 the Applicant saw Dr Curtin without the child and spent time explaining why she had taken the child to see 3 immunologists, 3 cardiologists, 3 rheumatologists, 2 respiratory physicians, 1 orthopaedic surgeon and 2 general paediatricians since the end of 2011. The Applicant indicated that she took the child to see multiple specialists because the previous specialist had not "done their job". (n)Dr Curtin became concerned that the child did not have a serious underlying disease, but that the issue was with the Applicant's perception of normality and abnormality. Dr Curtin consequently negotiated with the Applicant for an in-patient admission for the child in order that he could be formally assessed. (o)The child was admitted for in-patient care to the Hospital on 15 January 2013 and discharged on 24 January 2013 into the care of his father. During the admission the child was well and had no documented fevers. He underwent neurology review, physiotherapy and had his musculoskeletal system assessed by a Dexa scan. The results of all tests and examinations were normal. Social work was also involved to support the Applicant. (p)By 22 January 2013 the child had seen approximately 17 doctors at the Hospital and even more doctors privately. No abnormalities had been detected by any doctor. By this point Dr Curtin had become concerned about the possible impact that the multiple doctors' visits would be having on the child and, additionally, that the Applicant may have been having delusions about the child's health. (q)On 23 January 2013 the child was undergoing further blood tests when he became very distressed. The pathology request was aborted and the Applicant was asked to attend a Case Conference with Dr Curtin and other staff members. During this meeting it was explained to the Applicant that the doctors could not find any physical problem with the child. Dr Curtin explained that she thought there was a problem with the Applicant's own thinking and recommended voluntary psychiatric assessment, which the Applicant refused. Following on from this, Dr Kalliparan, Psychiatrist, completed a Schedule pursuant to the Mental Health Act, given that the Applicant refused to participate in a voluntary assessment. The police were called and the Applicant was transferred to Cumberland Hospital for assessment. 5The conduct which Ms Colgar alleges is in breach of the AD Act occurred between 28 October 2012 and 5 February 2013. Ms Colgar's allegations may be summarised as follows: a) Dr Curtin ignored her son's symptoms after 28 October 2012. b) No doctors at the Hospital, including Dr Curtin, did 'their proper job' because they were influenced by a statement made by an external doctor, Dr Hardwick (Paediatrician) who believed the Applicant to be mentally ill. c) During her son's 9 day hospital admission commencing 15 January 2013, Dr Curtin ignored the Applicant and did not investigate her son's medical condition. d) Dr Curtin sent the Applicant to a "mental hospital" to cover "her colleagues' mess". e) Dr Curtin continually stated that the complainant was a mentally ill person, both publicly and privately. 6Because I have not heard the evidence, I make no findings of fact. But I do need to assess the merits of Ms Colgar's complaint. Issue 7The issue is whether in all the circumstances it is fair and just for Ms Colgar's complaint to go ahead. In this case, that depends on the factual and legal merits of the complaint. If her complaint is highly unlikely to succeed, it would not be fair or just to allow it to go ahead. In order to determine whether her complaint has merit, I will identify and address each of the matters Ms Colgar would have to prove to substantiate her complaint. The law 8Section 49M makes it unlawful for a service provider to discriminate against a person by refusing services or in relation to the terms on which those services are provided. (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. 9Section 49B defines disability discrimination: (1) A person ("the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.. 10To be unlawful the conduct must constitute either direct discrimination under s 49B(1)(a) or indirect discrimination under s 49B(1)(b). I understand Ms Colgar's complaint to be one of direct discrimination on the ground of a presumed disability, namely a mental illness. 11Disability is defined in s 4 to include "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." Under s 49A(b) it also includes a disability that a person is thought to have (whether or not the person in fact has the disability). Ms Colgar denies that she has a mental illness. Dr Curtin admits that by December 2012 she was concerned that Ms Colgar's perception of reality and thought processes were disturbed. A tribunal is likely to accept that that Dr Curtin thought that Ms Colgar had a disability. 12In order to prove that any of the treatment about which Ms Colgar complains breaches s 49M of the AD Act, she would have to: (1)establish that each of her allegations actually occurred; (2)identify the service that Dr Curtin was providing to her and set out the ways in which that service was refused or provided on less favourable terms; (3)establish that Dr Curtin treated her less favourably than she would have treated a person who the respondent did not think had a mental illness in the same or similar circumstances (differential treatment); and (4)establish that at least one of the reasons for that treatment was her presumed mental illness (causation). 13I will address each of these issues in relation to Ms Colgar's allegations. Ignoring reports of child's symptoms 14Dr Curtin denies that she ignored Ms Colgar's reports about her son's symptoms. She says that even after she had formed the view that there was nothing seriously wrong with her son, she still arranged for in-patient admission so that he could be formally assessed. Dr Curtin ordered and conducted numerous investigations in response to Ms Colgar's concerns. Her son was investigated extensively by neurology, physiotherapy, blood tests and a Dexa scan. 15Ms Colgar has not provided any details of the symptoms which she reported her son to be suffering but which were ignored. Dr Curtin's account of the treatment during that period does not suggest that the child's symptoms were being ignored. In the absence of any particulars in relation to this allegation, it is likely that if this matter were to go to a hearing a tribunal would not make a finding that Dr Curtin ignored her after 28 October 2012. If Ms Colgar cannot prove the factual basis for this part of her complaint, the complaint would be dismissed. 16Even if Ms Colgar could prove that Dr Curtin ignored her accounts of her son's symptoms after 28 October 2012, she would have to satisfy the tribunal that that conduct amounts to refusing a service to her or providing her with a service on unfavourable terms. 17The first step in determining whether a person has been refused a service or provided a service on unfavourable terms is the proper characterisation of the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. 18Dr Curtin did not deny that she provides medical services to Ms Colgar and her child. She did not admit to providing any other kind of service. But it seems that, at least, the Hospital (if not Dr Curtin) was providing Ms Colgar with social support services. During her son's hospitalisation in January 2013, Dr Curtin says that a social worker was involved to support her. 19When asked to identify the service that Dr Curtin was providing her, Ms Colgar said that the service was to her son but that her son depends on her to get the services he needs. That answer is not particularly helpful to her case. Ms Colgar did not bring the complaint on behalf of her son. 20The reasons Ms Colgar attended the hospital was to seek or obtain a diagnosis and treatment for her son or to speak to Dr Curtin in relation to complaints she had made to the hospital. It is unlikely, if this matter goes to a hearing, that the tribunal would be satisfied that Dr Curtin was providing medical services to Ms Colgar but they were providing her with social services. Putting Ms Colgar's complaint in the best possible light, it is arguable that the hospital was providing her with the service of responding to her complaints about her son's medical treatment and with social and psychological support. 21If they are the services that Dr Curtin was providing, she did not refuse to provide those services or provide them on any particular terms or conditions. Ms Colgar met with Dr Curtin in relation to her complaints on at least four occasions. Dr Curtin ensured that there was a social worker available to support Ms Colgar when her son was in hospital. In my view, even if Ms Colgar could prove the factual basis for these allegations, none amount to the refusal of a service to her or the provision of a service on unfavourable terms. Influenced by Dr Hardwick 22Dr Hardwick, a consultant paediatrician in private practice, is the respondent in other proceedings brought by Ms Colgar. (citation). Ms Colgar alleges that Dr Hardwick influenced doctors at the Hospital to ignore her because she was mentally ill. In the related proceedings, Dr Hardwick denies telling any doctor at the Hospital that Ms Colgar was mentally ill. 23Ms Colgar has not provided any evidence of a communication between Dr Hardwick and the doctors at Westmead Children's Hospital. The suggestion that he influenced Dr Curtin is speculation. Again, in the absence of any evidence of influence, this allegation would not be substantiated. 24Even if Ms Colgar were able to prove that Dr Hardwick exerted some influence over Dr Curtin, that does not constitute a separate allegation against Dr Curtin. Sent to a "mental hospital" 25There is no dispute that Dr Curtin was in favour of having Ms Colgar being assessed by a psychiatrist. She suggested that Ms Colgar seek voluntary assessment from a psychiatrist. If that was part of a service that Dr Curtin was providing, she did not refuse to provide it or provide it on unfavourable terms. The decision to schedule her under the Mental Health Act 2007 was made by a psychiatrist , Dr Kalliparan. It was not Dr Curtin's decision to "send" Ms Colgar to hospital. 26This allegation is unlikely to be substantiated. Called a mentally ill person 27Dr Curtin agrees that during a meeting on 5 February 2013, following the involuntary admission, she suggested to Ms Colgar that her "thinking was not straight" and that she needed help for her mental health. Dr Curtin denies that she ever used the words "mentally ill person" when speaking to or about Ms Colgar. 28The onus would be on Ms Colgar to prove that Dr Curtin used those words. Ms Colgar has not identified any witnesses who can corroborate her version of events. In those circumstances it is possible that a tribunal hearing this matter would find, on the balance of probabilities, that those words were not spoken. Even if the tribunal found that Dr Curtin did refer to Ms Colgar as 'mentally ill" Ms Colgar would have to prove that that constitutes the refusal of a particular service or the provision of a service on unfavourable terms. There is authority for the proposition that the manner in which a person is treated while being provided with a service does not constitute the refusal of a service or the provision of a service on unfavourable terms: Turner v State Transit Authority [2004] NSWADT 89. It is possible that a tribunal hearing this matter would apply that reasoning to this case. That would be additional reason for its dismissal. Causation 29Finally, Ms Colgar would have to establish that at least one of the reasons for the alleged treatment was her presumed mental illness (causation). In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court has confirmed that the test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus was on the "true basis", the " genuine basis" (Gleeson CJ at 102), or the " real reason" (per McHugh & Kirby JJ at 144).. While it is likely that a Tribunal would find that presumed mental illness was one of the reasons for the treatment, the likelihood of Ms Colgar establishing the other elements of her claim as addressed above, are so slight that it is not fair or just for the complaint to proceed. Order Leave is refused for the applicant's complaint of presumed disability 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: 12 November 2013