Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 48

Disability Discrimination Act 1992 (Cth) s 10

Discrimination Act 1991 ss 4AA, 4A, 5AA, 7, 8, 20, 30, 70, 121A

Human Rights Commission Act 2005 ss 53A, 53CA, 53E

Public Sector Workers Compensation Fund Act 2018

Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 5A, 5B, 6, 14, 16, 19, 41, 53, 54, 57, 60, 62, 64

Subordinate

legislation cited: Safety, Rehabilitation and Compensation (Specification of Medical Examination Interval) Instrument 2019 (Cth)

Cases cited: Abraham v Thomas [2020] ACAT 41

Andreopoulos v University of Canberra [2020] ACAT 95

Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 14

Australian Capital Territory v Wang [2019] ACAT 65

Bickle v State of Victoria [2020] FCA 168

Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64

Complainant 201908 v Commissioner for Fair Trading [2020] ACAT 24

Complainant 201931 v Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 9

Cooley v Australian National University [2007] ACTDT 2

Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379

Ezekiel-Hart v Reis [2017] ACAT 3

IW v City of Perth [1997] HCA 30

Keightly v ACT Ambulance Service [2019] ACAT 61

Kidman v Casino Canberra Ltd [2020] ACAT 50

Kovac v The Australian Croatian Club Ltd [2014] ACAT 41

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Phillips v Australian Capital Territory [2021] ACAT 22

Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132

Purvis v State of New South Wales [2003] HCA 62

Rainsford v Victoria [2005] FCAFC 163

Robinson v Commissioner of Police [2012] FCA 770

Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179

State of New South Wales v Whiteoak [2014] NSWCATAP 99

Williams v The Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65

Wright v Commissioner of Police [2014] NSWCATAP 67

Texts cited: R. P. Balkin and J. L. R. Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013)

1. This application concerns a discrimination complaint referred to the Tribunal by the Human Rights Commission (HRC) at the applicant's request under section 53A of the Human Rights Commission Act 2005 (HRC Act).

2. At relevant times, the applicant was a part-time Allied Health Assistant 3 working in the ACT mental health system. She has a psychiatric illness, diagnosed as schizophrenia. Although the applicant's schizophrenia previously had been reasonably well managed, she suffered significant anxiety and stress in her workplace in the period from early November 2018 until she resigned from her employment in June 2019. The applicant and her treating psychiatrist and general practitioner attributed the cause to the applicant being exposed to a workplace environment where she was given tasks and allocated responsibilities that were beyond her capabilities, without adequate oversight, supervision, or support. The applicant claimed that she suffered a workplace injury involving a significant exacerbation of her schizophrenia. On 3 July 2019, the applicant made a claim for workers' compensation under section 54 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (SRC Act).

3. The respondent (EML) is the workers' compensation claims management agent of the Territory, which is a licensed self-insurer under the SRC Act. EML was appointed by the Territory under the ACT Workers' Compensation Third Party Administrator Agreement on 10 October 2018 (Administrator Agreement) to provide, among other things, claims management services on behalf of the Territory. The operation of the Comcare scheme established under the SRC Act and the Public Sector Workers Compensation Fund Act 2018, which provides the statutory foundation for the Territory to be a self-insured licensed corporation under the SRC Act, is explained in Phillips v Australian Capital Territory[1] and need not be revisited here.

4. On 30 August 2019, EML denied liability for the claim on the grounds that the applicant's employment did not contribute to her condition to a significant degree. EML's position was that the applicant's condition was a relapse of her schizophrenia caused by her ceasing to take prescribed anti-psychotic medication. On 22 October 2019, following a request for reconsideration of the decision, EML accepted liability to pay compensation for a workplace injury described as 'aggravation of schizophrenia' deemed to have been sustained on 8 November 2018.

5. On 28 January 2020, the applicant made a complaint (the Complaint) to the HRC against EML of unlawful discrimination in the provision of services on the grounds of her disability in breach of section 20 of the Discrimination Act 1991 (Discrimination Act or the Act).

6. In broad terms, the Complaint related to EML's assessment and documentation requirements, and decision-making processes relating to the applicant's claim, including EML's initial refusal of the claim and, after the favourable reconsideration decision, the refusal of EML's case managers to approve payment for operational support and the applicant's mental health social worker. In essence, the applicant claimed that EML's case managers treated her unfavourably in making discretionary decisions about her workers compensation claim, in her words, "because I was dismissed as being 'a schizophrenic' who just needed her medication".[2]

7. Of the original issues raised in the Complaint, at the hearing the applicant pressed only two claims.

8. The first claim, which the applicant described as Discrimination Claim One, alleged that EML discriminated against her by refusing to approve payment for operational support recommended by her GP and for the applicant's mental health social worker, the effect of which was to deny her the support she needed to assist in her recovery.

9. The second claim, which the applicant described as Discrimination Claim Two, alleged that EML discriminated against her by requiring, after her claim was accepted, that she attend independent medical examinations (IME) by a neuropsychologist and psychiatrist of EML's choosing, rather than her own, causing her significant anxiety and distress, which was compounded by EML's decision to cease making payments for reasonable medical expenses and incapacity payments until the applicant agreed to attend the IME.

Relevant requirements of the Discrimination Act

10. 'Disability' is a protected attribute under section 7(1)(e) of the Discrimination Act. By section 5AA(1)(g), the meaning of 'disability' includes "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgement or that results in disturbed behaviour". By section 5AA(2), 'disability' includes, among other things, behaviour that is a symptom or manifestation of the disability and reliance on a support person. The applicant submitted that her schizophrenia and its associated symptoms and mental health issues are a 'disability' for the purposes of the Act. I accept this as correct.

11. By section 8 of the Discrimination Act, a person may be directly or indirectly discriminated against, or both. Direct discrimination occurs when a person treats another person unfavourably 'because of' a protected attribute. Indirect discrimination occurs when a person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person 'because of' a protected attribute. However, a condition or requirement does not give rise to indirect discrimination if it is reasonable in the circumstances.

12. Whether treatment is unfavourable is a question of fact. The test is objective rather than comparative. 'Unfavourable treatment' has been said to encompass acts or omissions which result in some detriment, being loss, damage, or injury.[3]

13. In Kidman v Casino Canberra Pty Ltd,[4] the tribunal said:

The Discrimination Act does not define 'unfavourable treatment' or what is meant by 'treats or proposes to treat another person unfavourably'. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: "were you treated less favourably than others?" It asks, "were you treated unfavourably?" This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is 'unfavourable treatment' and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[5]

14. Whether a condition or requirement imposed has the effect of disadvantaging a person is a question of fact. In Australian Capital Territory v Wang, the appeal tribunal noted that the words 'effect' and 'disadvantaging' are not defined in the Discrimination Act.[6] The appeal tribunal adopted the following meaning of 'disadvantage' discussed in Prezzi, Patricia Anne v Discrimination Commissioner[7] and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd:

[22] ... While the term "disadvantage" might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison, as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines "disadvantage" as "absence or deprivation of advantage; any unfavourable circumstance or condition". The primary meaning of "advantage" does not import comparison... or means specially favourable to success, interest or any desired end ...

[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant's interests or are adverse to the complainant's interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint...[8]

15. In Williams v The Trustees of Swansea University Pension & Assurance Scheme[9] the Supreme Court of the United Kingdom considered the meaning of the expression "treats...unfavourably" in section 15(1) of the Equality Act 2010 (UK), which provides that a person (A) discriminates against a disabled person (B) if A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim. Lord Carnwath (with whom the other Law Lords agreed) observed that no element of comparison was involved. Rather, "section 15 appears to raise two simple questions of fact: what was the relevant treatment and was it unfavourable to the claimant?"[10] He concluded:

...that in most cases (including the present) little is likely to be gained by seeking to draw narrow distinctions between the word "unfavourably" in section 15 and analogous concepts such as "disadvantage" or "detriment" found in other provisions, nor between an objective and a "subjective/objective' approach...Nor do I find it useful to speculate about the application of the section...in hypothetical cases which are not before the court. [11]

16. Section 4A(2) of the Discrimination Act provides that doing an act 'because of' a particular matter includes a reference to doing an act because of two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.

17. In other words, the applicant must satisfy the Tribunal that her protected attribute was a reason, even if not the dominant or substantial reason, for EML doing, or failing to do, something prohibited by section 20 of the Discrimination Act. Causation is a question of fact.

18. In Purvis v State of New South Wales (Purvis)[12], a case involving the decision of a school principal to suspend and later expel a pupil who repeatedly assaulted teachers and other pupils, the issue was whether the pupil received less favourable treatment 'because of' his disability which made him prone to acts of violence. Section 10 of the Disability Discrimination Act 1992 (Cth) provided that if an act is done for two or more reasons and one of the reasons is the disability of a person, whether or not it is the dominant or a substantial reason for doing the act, then for the purposes of the Act, the act is taken to be done for that reason. In dismissing the appeal, the majority comprising Gummow, Hayne and Heydon JJ said:

It is, however, desirable to say something shortly about the third issue argued in the appeal: was there less favourable treatment "because of" disability? The argument about this aspect of s 5(1) sought to draw distinctions between the motive of the discriminator, the purpose of the conduct and the effect of the conduct, and between objective and subjective criteria of operation. Attention was directed to the drafter's use of the expression "by reason of" in the equivalent provisions of the Sex Discrimination Act rather than the expression "because of" used in s 5(1) and other provisions of the Act. Reference was made to s 10 of the Act and its provision that if an act is done for two or more reasons and one of those is the disability of a person "whether or not it is the dominant or a substantial reason for doing the act" then for the purposes of the Act "the act is taken to be done for that reason".

Counsel referred to statements in this Court construing other anti-discrimination statutes where the view was taken that the phrase "on the ground of" did not require an examination of intention or motive. On the other hand, in James v Eastleigh Borough Council, the House of Lords treated as decisive the aim of the Council in acting as it did.

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".[13]

19. Gleeson CJ, who agreed with the orders of the majority, considered that the relevant parts of the legislation, including section 10 of the Act, "are concerned with the lawfulness of the conduct of the school authority, and the true basis of the decision of the decision of the principal to suspend and later expel the pupil" and that the "expressed and genuine basis of the principal's decision was the danger to other pupils and staff constituted by the pupil's violent conduct, and the principal's responsibilities towards those people".[14]

20. McHugh and Kirby JJ, who dissented in the result, referred to the test for discrimination stated by Kirby J earlier in IW v City of Perth (IW)[15] which they said "correctly...focuses on the "real reason" for the alleged discriminator's acts" and which they said had been wrongly characterised as an application of a 'but for' test.[16] In IW Kirby J had said:

The object of the Act is to exclude the unlawful and discriminatory reasons from the relevant conduct. This is because such reasons can infect that conduct with prejudice and irrelevant or irrational considerations which the Act is designed to prevent. Because persons, faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons - and because affirmative proof of an unlawful reason is often difficult - the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was 'by reason' or 'on the ground' of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reason or grounds. It must be a real 'reason' or 'ground'. It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.[17]

21. In IW, the legislation under consideration was the Equal Opportunity Act 1984 (WA), which did not include an equivalent provision to section 10 of the Disability Discrimination Act 1992 (Cth) or section 4A of the ACT Discrimination Act.

22. In Nicholls and Nicholls v Director General, Department of Education and Training (No 2) (Nicholls)[18] the Appeal Panel of the NSW Administrative Decisions Tribunal concluded that the test for causation following Purvis was encapsulated by the following question:

The question a Tribunal should ask when addressing the causation element of direct discrimination is whether the person's sex, race, disability, etc (including the extended definitions of those grounds) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. For that to be the case, that reason must have been a reason which, either alone or in combination with other reasons, was the true basis for the treatment. Depending on the circumstances, the motives and purpose of the alleged discriminator, as well as the effect on the aggrieved person, may all be relevant.[19]

23. The Appeal Panel said in relation to section 4A of the Anti-Discrimination Act 1977 (NSW) (which, although expressed in different terms, is similar in effect to section 4A(2) of the Discrimination Act) that:

...s 4A is an explanatory provision which does not give the words 'on the ground of' an extended meaning beyond their ordinary meaning. Whether or not the reason was substantial or insubstantial is not the point. The enquiry must focus on whether the reason contributed to the decision, that is, whether it was one of the real, genuine or true reasons for the decision.[20]

24. The question whether the test as stated originally in Nicholls correctly reflected the decision in Purvis was considered by the Appeal Panel of the NSW Civil and Administrative Tribunal (NCAT), the statutory successor to the NSW Administrative Decisions Tribunal, in Wright v Commissioner of Police (Wright).[21] The Appeal Tribunal accepted a joint submission by counsel for the parties that the decision in Purvis does not stand for the proposition that the causation element in a complaint of direct discrimination requires that the reason for the alleged discriminatory conduct must be at least one of the 'real', 'genuine' or 'true' reasons for the conduct. None of the judges in Purvis referred to the need for 'genuine' reasons and McHugh and Kirby JJ, who referred to the need for 'real' or 'true' reasons, were in the minority. The Appeal Panel accepted that the correct test was that stated by the majority (Gummow, Hayne and Heydon JJ) at [234] of the decision - namely, why was the aggrieved person treated as he or she was. It was not necessary that the unlawful reason be the only or dominant reason for the impugned conduct. It need only be one of the reasons.[22] The Appeal Panel found however, that although the original tribunal erred in its statement of the law, the subsequent findings of fact satisfied the test stated at [234] of Purvis.

25. Wright has largely been overlooked in subsequent NCAT decisions, which continue to state the test as originally set out in Nicholls, typically citing Purvis (rather than Nicholls) as the source. For example, in Secretary, Department of Communities and Justice v Tebb (Tebb)[23], the Appeal Panel stated:

The test is whether disability (as defined in the Act) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. As the Tribunal stated at [39], the real issue was whether one of the reasons the respondent's managers subjected Mr Tebb to the treatment about which he complains was because he had, or was thought to have, gout.[24]

26. In Kovac v The Australian Croatian Club Limited (Kovac)[25] (which was decided by the ACAT several months earlier than Wright) the issue was whether the board's decision to reject the applicant's application for membership of the club constituted unfavourable treatment 'because of' his political convictions or beliefs. In relation to causation, Presidential Member Spender said:

The Tribunal agrees with the applicant's submission that the question for the Tribunal is whether the applicant's political conviction is, either alone or in combination with other reasons, a real, genuine and not insubstantial reason for the unfavourable treatment. This conclusion applies the criteria in section 4A of the Discrimination Act to the Nicholls test that was relied upon by the parties in submissions. The Tribunal notes that Purvis provides an overarching question of whether the aggrieved person was treated less favourably 'because of' the person's attribute. So in determining whether the respondent has treated the applicant unfavourably because the applicant has an attribute referred to in section 7, the Tribunal will take into account all reasons for doing the act other than those that are not real or genuine or are insubstantial. Therefore, if the applicant's political conviction, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment, then the causative element of section 8 of the Discrimination Act is satisfied.[26]

27. Since then, the test as stated in Kovac - namely, whether the complainant's protected attribute is a "real, genuine, or not insubstantial reason" for the alleged discriminatory conduct - has been adopted in the ACAT as the test for causation.[27]

28. I must confess to finding neither the Nicholls test, nor the Kovac test, to be of much practical use in determining causation. A complainant must establish, on the balance of probabilities, that he or she was treated unfavourably 'because of' a protected attribute. As the majority stated in Purvis, the central question must always be - why was the aggrieved person treated in the way that he or she was? If the answer is that the person was treated unfavourably 'because of' a protected attribute, the unfavourable treatment is direct discrimination even if there were other reasons for the treatment. As Kirby J said in IW, the issue is whether the unlawful consideration - i.e. the person's protected attribute - played a causative part in the alleged discriminatory conduct. The question is one of fact.

29. The task for the tribunal is to find whether a causal connection exists between the alleged unfavourable treatment and the aggrieved person's protected attribute. I struggle to see how framing the question for the tribunal in terms of whether the protected attribute is a 'real', 'genuine', 'true', or 'not insubstantial' reason for the unfavourable treatment advances that enquiry. Nor do I see how a question framed in those terms can be answered without first asking what the majority in Purvis described as the "central question" - why was the person treated as they were? When the 'central question' is answered by identifying the reasons 'because of' which an act was done, what work remains for a further question whether, if one of the reasons was the person's protected attribute, it was a 'real', 'genuine', 'true' or 'not insubstantial' reason? A 'matter' (adopting the terminology used in section 4A(2) of the Discrimination Act) is appropriately described as not a 'real', 'genuine', 'true', or 'not insubstantial' reason, where an analysis of the relevant circumstances establishes, on the balance of probabilities, that the 'matter' played no causative part in the unfavourable treatment by the alleged discriminator - i.e. the unfavourable treatment was not 'by reason' or 'because of' the matter in question. In that context, it seems to me that expressions such as 'real reason', 'genuine reason', 'true reason' or 'not insubstantial reason' may serve as general descriptors of the outcome of an analysis of causation, but they are neither synonymous with, nor suitable substitutes for, the statutory expression 'because of'. Elevating them to the status of a 'test' for causation runs the risk of treating them as an impermissible gloss on the statutory language.

30. As the majority in Purvis emphasised, other words should not be substituted for the statutory expression 'because of'. Many factors, including motive, purpose and effect may all bear on the question of causation. Where there is more than one reason for doing an act that would amount to unlawful discrimination if one of the reasons for doing the act is a person's protected attribute, section 4A(2) makes it irrelevant to enquire whether the protected attribute is the 'dominant' or 'substantial' reason for doing the act. If that is not a relevant enquiry, I question how it can be relevant to enquire whether the protected attribute is a 'real', 'genuine', 'true' or 'not insubstantial' reason - a semantic excursion into territory where none of those expressions have a certain meaning, nor should be substituted for the statutory expression 'because of'. The 'central question' - 'why was the person treated in a particular way' - can be answered only by reference to the statutory expression - i.e. the treatment was 'because of' the following matters. All that the Discrimination Act requires is that the protected attribute is a reason for the treatment, in the sense that the alleged discriminatory act is done 'because of' the protected attribute, even if it is also done 'because of' other matters.

31. As R. P. Balkin and J. L. R. Davis observed in their analysis of causal concepts in the legal text, Law of Torts:

There is now an established line of authority in both Australia and the United Kingdom that causation is essentially a question of fact, not susceptible of reduction to any one philosophical or scientific formula such as the 'but for' test, but rather to be resolved as a matter of common sense and experience. The reason for this distinction was stated by Mason CJ in March v E and MH Stramare Pty Ltd:

In philosophy and science, the concept of causation has been developed in the context of exploring phenomena by reference to the relationship between conditions and occurrences. In law, on the other hand, problems of causation arise in the context of ascertaining or apportioning legal responsibility for a given occurrence.

As acknowledged by the High Court in Chappel v Hart, the conclusion, as a result, is often reached intuitively and without a lengthy articulation of reasons. Nevertheless, wherever possible these should be identified because the question of causation in cases where science fails to provide a satisfactory answer 'must ultimately be seen as involving a question of satisfaction of the burden of proof'.[28]

32. Purvis is binding on the Tribunal, as are High Court decisions explaining the modern approach to determining issues of causation.[29] In my opinion, the test for causation I am bound to apply by high authority is the 'central question' stated by the majority in Purvis. Thus, if the applicant establishes that she was treated unfavourably, the question is why was she treated that way? The question must be answered as a matter of common sense and experience, considering all relevant circumstances. The answer must identify the matters 'because of' which she was treated unfavourably - i.e. the reasons for her treatment. The applicant was directly discriminated against if one of the reasons was her disability.

33. In this case, the issue is whether EML discriminated against the complainant in the provision of services because of her disability in breach of section 20 of the Discrimination Act.

34. Section 20 provides:

It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person -

(a) by refusing to provide those goods or services or make those facilities available to the other person; or

(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or

(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.

35. The meaning of 'services' in the Dictionary for the Discrimination Act is defined inclusively to mean, among other things, services provided by a government (in this case, the Territory, on whose behalf EML manages workers' compensation claims).

36. Brennan CJ and McHugh J observed in IW that the term 'services' has a wide meaning and, in the context of anti-discrimination legislation, should be given a liberal construction, subject to this proviso:

Although a provision of the Act must be given a liberal and beneficial construction, a court or tribunal is not at liberty to give it a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act should hold that that activity is a "service" for the purposes of the Act.[30]

37. The applicant's case is that EML is a 'provider' of services for the purposes of section 20, in that by managing or administering the applicant's workers' compensation payments and facilitating her medical treatments pursuant to the provisions of the SRC Act, EML provides (or was required to provide) 'services' to injured employees like the applicant. The applicant alleges that she was subject to both direct and indirect discrimination in the provision of those services. The respondent, on the other hand, denies that it provides 'services' of any kind to injured employees like the applicant.

38. Section 53CA(2) and (3) of the HRC Act applies to a discrimination complaint referred to the ACAT and sets out the evidentiary requirements an applicant must meet for a rebuttable presumption to arise that discrimination has occurred and how the respondent may rebut the presumption:

(2) It is a rebuttable presumption that discrimination has occurred if the complainant -

(i) for a complaint about direct discrimination - the treatment or proposed treatment is unfavourable; and

(ii) for a complaint about indirect discrimination - the condition or requirement has, or is likely to have, and effect of disadvantaging the other person; and

(b) presents evidence that would enable the ACAT to decide, in the absence of any other explanation -

(i) for a complaint about direct discrimination - that the treatment or proposed treatment is because of a protected attribute of the other person; or

(ii) for a complaint about indirect discrimination - that the effect of disadvantaging the other person is because of a protected attribute of the other person.

(3) The presumption under subsection (2) is rebutted if the person complained about establishes that -

(a) for a complaint about direct discrimination - the treatment is not because of a protected attribute of the other person; or

(b) for a complaint about indirect discrimination - the effect of disadvantaging a person is not because of a protected attribute of the other person.

39. The primary source of evidence is EML's case file, the contents of which are business records prepared contemporaneously with the events and communications they record. Primarily these comprise file notes in Annexure HJ-7 to the witness statement of Heidi James dated 31 August 2021. Ms James is, and at all relevant times was, the Team Manager in the Federal Self Insurance branch of EML's Federal Self Insurance Division in Canberra and was responsible for supervising the case managers who had day-to-day conduct of the applicant's claim. Ms James's witness statement annexes other documents that are relevant to the applicant's workers' compensation claim and to the discrimination claims.

40. The applicant did not provide a formal witness statement, but relied on several documents which comprised partly a statement of the facts and evidence on which she relied, and partly submissions in support of her discrimination claims.

41. Although the applicant was not privy to the reasons for decisions made in relation to the management of her claim, in the end none of the material facts are controversial. The issue is whether they give rise to a claim of unlawful discrimination in the provision of services in breach of section 20 of the Discrimination Act.

42. It is necessary to examine the facts in some detail to understand EML's reasons for acting as it did. This is essential to the analysis of causation.

43. Before I refer in detail to the factual background to the Complaint, it is necessary to describe the statutory context in which the events occurred. The relevant legislation is the SRC Act, a Commonwealth law in force in the Territory.

44. An 'injury' is defined in section 5A(1) of the SRC Act to include a 'disease_'_. Section 5B defines 'disease':

(a) an ailment suffered by an employee; or

(b) an aggravation of such an ailment;

that was contributed to, to a significant degree, by the employee's employment by the Commonwealth or a licensee.

(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee's employment by the Commonwealth or a licensee, the following matters may be taken into account:

(a) the duration of the employment;

(b) the nature of, and particular tasks involved in, the employment;

(c) any predisposition of the employee to the ailment or aggravation;

(d) any activities of the employee not related to the employment;

(e) any other matters affecting the employee's health.

This subsection does not limit the matters that may be taken into account.

significant degree means a degree that is substantially more than material.

45. Section 6 gives a non-exclusive description of circumstances in which an injury to an employee may be treated as having arisen out of, or in the course of, his or her employment and includes circumstances where the injury was sustained while the employee was at the employee's place of work for the purposes of that employment.

46. Part II of the SRC Act deals with compensation. Division 1 of Part II provides for compensation, among other things, for injuries (section 14), in respect of medical expenses (section 16) and for injuries resulting in incapacity (section 19).

47. Section 14(1) provides that, subject to Part II, Comcare is liable to pay compensation in accordance with the Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment. In this case, EML (rather than Comcare) is liable to pay compensation on behalf of the Territory as a licensed self-insurer under the Act.

(1) Where an employee suffers an injury, Comcare is liable to pay, in respect of the cost of medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances), compensation of such amount as Comcare determines is appropriate to that medical treatment.

(2) Subsection (1) applies whether or not the injury results in death, incapacity for work, or impairment.

(4) An amount of compensation is payable by Comcare under subsection (1) is payable:

(a) if the employee has paid the cost of the medical treatment - to, or in accordance with the directions of, the employee; or

(c) in any other case - to the person to whom the cost is payable.

49. Section 19 provides for compensation for injuries resulting in incapacity (incapacity payments).

50. Part III of the SRC Act deals with rehabilitation. Division 2 of Part III provides for the approval of rehabilitation program providers. Division 3 provides for rehabilitation programs. Thus, for example, where an employee suffers an injury resulting in an incapacity for work, the rehabilitation authority may arrange for an assessment of the employee's capability of undertaking a rehabilitation program.[31] Under section 41, Comcare may issue to rehabilitation authorities guidelines in relation to the performance or exercise of their functions or powers under Part III.

51. Part V of the SRC Act deals with claims for compensation. Section 53 includes notification requirements in relation to an injury to an employee. Section 54 provides that compensation is not payable under the Act unless a claim for compensation is made by or on behalf of the person under the section. Section 57 provides:

(1) Where:

(a) a notice has been given to a relevant authority under section 53 in relation to an employee; or

(b) an employee has made a claim for compensation under section 54;the relevant authority may require the employee to undergo an examination by one legally qualified medical practitioner nominated by the relevant authority.

(2) Where an employee refuses or fails, without reasonable excuse, to undergo an examination, or in any way obstructs an examination, the employee's rights to compensation under this Act, and to institute or continue any proceedings under this Act in relation to compensation, are suspended until the examination takes place.

(5) Where an employee's right to compensation is suspended under subsection (2), compensation is not payable in respect of the period of the suspension.

(6) An employee shall not be required to undergo an examination under this section at more frequent intervals that are specified by the Minister by legislative instrument.

52. The Safety, Rehabilitation and Compensation (Specification of Medical Examination Interval) Instrument 2019 (Cth) stipulates that, for the purposes of section 57(6) of the SRC Act, an employee shall not be required to undergo a medical examination by the same legally qualified medical practitioner nominated by the relevant authority under section 57 more frequently than at one-month intervals.

53. Part VI of the SRC Act deals with reconsideration and review of 'determinations'. The definition of 'determination' in section 60(1) includes a determination, decision or requirement made under sections 14 and 16 (among others). Relevantly, a decision whether to accept liability under section 14, and a decision whether to pay compensation for the reasonable cost of appropriate medical treatment under section 16, is a 'determination' for the purpose of Part VI of the Act.

54. Section 62 authorises a determining authority (in this case, EML) to reconsider a determination made by it. A claimant (among others) may request a reconsideration. Section 62(3) requires that a request for reconsideration should set out the reasons for the request and imposes time limits for doing so. On receipt of a request the determining authority must reconsider the determination, or cause the determination to be reconsidered by a person to whom its powers under the section are delegated, not being the person who made, or was involved in making, the original determination. Pursuant to section 62(5), the person making the reconsideration decision may affirm, revoke, or vary the determination.

55. A reconsideration decision under section 62 is a 'reviewable decision'.[32] Pursuant to section 64(1), the claimant or a corporation that holds a licence under Part VIII (in this case, the Territory) may apply to the Administrative Appeals Tribunal (AAT) for review of a reviewable decision.

The services EML was contracted to provide under the Administrator Agreement

56. Schedule 1 - 'Statement of Requirements' in the Administrator Agreement includes several components, the first of which, under the heading 'Services', describes, in clauses 2.1 to 2.5, the services that EML agreed to provide "to the Territory".[33]

57. Clause 2.1 - 'Claims Administration Services' states that EML "must provide the following Services on behalf of the Territory":

(a) assess liability including initial liability and ongoing liability (eg assessments of reasonable and necessary medical requirements);

(b) Benefits calculation, authorisation and payments, including provisional liability for medical costs;

(c) case management, incorporating claims management strategies;

(d) integration with the Territory's Injury Management Team to support best practice rehabilitation and return to work;

(e) administration of Reactivated Claims;

(f) payments to, and oversight of Service Providers (including providers of medical, allied health, rehabilitation and legal services) as advised by the Territory;

(g) management of Claims data (creation, retention, updating and archiving); and

(h) Injured Worker escalated matters and dispute management, including matters commenced with the Administrative Appeals Tribunal (AAT).[34]

58. Clause 2.2 - 'Territory Responsibility', provided for the Territory to be responsible for exercising the rehabilitation authority functions under Part III of the SRC Act in accordance with the rehabilitation authority guidelines issued by Comcare under section 41 of the Act, and for management of rehabilitation Service Provider performance.

59. Clause 2.3 - 'Performance' required EML, among other things, to meet the requirements of the Territory's self-insurance licence under the SRC Act in relation to claims management and the payment of benefits to injured workers.

60. Clause 2.4 - 'Claims Management' required EML to provide guidance to the relevant Territory Rehabilitation Team in relation to the management of claims.

61. Clause 2.5 - 'Value Add Services' required EML to provide 'value add services' which support the achievement of the Territory's objectives, including building internal claims administration expertise, developing return to work and rehabilitation initiatives, staff health and well-being activities, and improving the work safety culture in the Territory.

62. An issue in this application is whether, as the applicant contends, EML provided services to persons who suffered a workplace injury by managing or administering their workers' compensation payments and facilitating medical treatment or, as EML contends, EML provided services to the Territory alone. I consider this later.

63. The applicant lodged a workers' compensation claim on 3 July 2019. Christina Jacobsen was appointed as the applicant's case manager the next day and commenced her assessment of the claim to determine whether EML should accept liability on behalf of the Territory under section 14 of the SRC Act.

64. During the assessment process the applicant told Ms Jacobsen in a telephone call on 23 July 2019 that "she had stopped her medication in approximately April last year and had been fine until this year when she realised she wasn't coping with work and both her psychologist and her psychiatrist advised that this new episode was to do with her workplace".[35] Doubts about whether the applicant's condition was caused by her employment, or by her ceasing to take antipsychotic medication, figured prominently in the course of events that lead to the Complaint.

65. By late August 2019, Ms Jacobsen completed her assessment and formed the opinion that the medical evidence did not support the applicant's claim that her employment had contributed to a significant degree to her condition, but rather that the applicant's condition arose because of her ceasing to take medication for the underlying pre-existing condition of schizophrenia. Ms Jacobsen discussed her views with the team leader, Ms James, who agreed with the assessment. Ms James explained her opinion in paragraph 60 of her witness statement:

Based on my review of the clinical information from the Applicant's treating practitioners that, while they considered that there was a work place aggravation. there was a clear connection between the diminished ability to perform in her role and reduction of medication for her pre-existing condition. Further, the duration of her employment was considered, the nature of her duties was considered and the period at which she was most heightened was at the time that she was not taking the prescribed medication for her condition. All these factors were considered, including the conflicting information between the psychiatrist's and general practitioner's clinical records.[36]

66. Ms James did not explain what she meant by "conflicting information". I presume she was referring to the fact that the GP had given a diagnosis of "generalised anxiety", whereas the psychiatrist diagnosed the applicant as having experienced an exacerbation of schizophrenia.

67. The kinds of considerations mentioned by Ms James are consistent with the matters that section 5B(2) of the SRC Act says may be considered in determining whether an ailment or aggravation of a disease was contributed to, to a significant degree, by an employee's employment.

68. Ms James' believed there was sufficient evidence, from a medical perspective, to deny liability and that it was not necessary for EML to require the applicant, under section 57 of the SRC Act, to attend an IME for the purpose of assessing liability.

69. On 2 September 2019, Ms Jacobsen gave notice of EML's determination that the Territory was not liable to pay compensation to the applicant under section 14 of the SRC Act in respect of "generalised anxiety".[37] Ms Jacobsen's reasons included:

The timeline of weaning off medication and the increase in your workplace stress and challenges coincide. It is difficult to know as to whether you would have experienced the workplace issues if you continued taking your medication as your early months in the position, prior to weaning off medication, indicate your ability to cope with workplace tasks. From September 2018, you start to have issues with your work and the nature of your duties, which is also when your medication was reduced. I note that your employer has not indicated that your duties changed or were increased after September. Rather, your duties remain the same.

Based on the evidence before me, on the balance of probabilities, I am not satisfied that your condition was contributed to, to a significant degree, by your employment. I am satisfied that other non-employment factors, your weaning off the medication was significant in your experience in an increase of psychological symptoms.

Therefore, I have denied liability for your claim under section 14 of the SRC Act.[38]

70. The applicant telephoned Ms Jacobsen the next day, telling her it was wrong to say that being off her medication contributed to her condition, and advising her intention to request a reconsideration of the determination.

71. This prompted Ms Jacobsen to request Dr Luke Murphy, a forensic psychiatrist, to review the file and prepare a Board Medical Advisor Report. On 5 September 2019, Dr Murphy provided a brief written report in which he said:

It is abundantly clear that [the applicant] is doing everything she can to improve her mental health and remain at work.

[The applicant's] mental health was stable before ceasing the Latuda and improved when she started taking it again.

The available evidence clearly supports the view that, if not for [the applicant] taking the calculated risk (which she understood and discussed with Dr Diamond), [the applicant] would not have experienced a temporary exacerbation of her pre-existing schizoaffective disorder in November 2018.[39]

72. On 2 October 2019, the applicant submitted a request for reconsideration of the determination under section 62 of the SRC Act, with additional medical evidence from her treating psychiatrist, general practitioner and mental health social worker, and other supporting information and documentation. In giving reasons for the request, the applicant wrote:

For an unqualified administrative officer to make medical claims about medications and the severity of injury amounts to ignorant stereo typing. I am an individual with a mental health disability that is very well managed. I object in the strongest terms to an unqualified person who has barely met me, making assumptions and drawing conclusions that defy medical experience and knowledge. I believe this constitutes prejudice against my disability.[40]

73. The reconsideration request was referred to Lauren Meggs, a Reconsideration Officer with EML. On 22 October 2019, Ms Meggs gave notice of her decision to revoke the original determination and substitute a determination that compensation was payable to the applicant under section 14 of the SRC Act for aggravation of schizophrenia. The date of the injury was deemed to be 8 November 2018. In relation to the question whether the applicant's employment had contributed to a significant degree to the aggravation of schizophrenia, Ms Meggs wrote:

I note that all your treaters have considered that it is workplace stress that has caused your current symptom experience...

I note that your employer reported that there had been no increase or change to your role, and that clinical supervision was not a requirement. I note that you were asked to compile all issues into a register, for them to be directed to the most appropriate person for answer. However, you have reported feeling that it was still an expectation of you to resolve these issues.

Whilst there are some differences in the reporting of the circumstances, I note that most facts are substantiated between both you and your employer. However, it appears that it has been your perception of events, that have led you to seek medical treatment and incapacity for work.

I note the questions surrounding your ceasing medication, and the contribution that this factor has had. I note your treating practitioner's reports surrounding the seriousness of this issue, and the manner in which it was undertaken. I note there are reports of you previously functioning well, both on and off medication.

Having regard to the entirety of the evidence, I am satisfied that your aggravation of schizophrenia has been significantly contributed to by your perception of workplace events that have occurred.[41]

74. Ms James said that, while it was intended that Ms Meggs should consider Dr Murphy's report mentioned earlier, this did not happen because Ms Jacobsen forgot to include a copy of the report in the applicant's case file before it was sent to Ms Meggs, and Ms James was on leave at the time. Whether Dr Murphy's report would have made any difference to the outcome is moot.

75. On 29 October 2019, the Territory's Rehabilitation Case Manager, Sharna Groot, met with the applicant to discuss the case management strategy. The applicant asked Ms Groot to arrange for EML to assign a new case manager to replace Ms Jacobsen. The next day, EML appointed Marie-Daniel Marsh as the applicant's case manager.

76. On 5 November 2019, Ms Daniel-Marsh telephoned the applicant to introduce herself. She advised the applicant that all medical expenses could be paid directly to the providers. The applicant requested that Ms Daniel-Marsh email the medical service providers to inform them how they should invoice EML. On the same day, Ms Daniel-Marsh notified the employer's payroll team that the claim had been accepted and requested that incapacity payments be processes from the date of injury, which she identified incorrectly as 1 November 2018 instead of 8 November 2018.

77. On 6 November 2019, Ms Groot emailed Ms Daniel-Marsh:

As [the applicant's] claim it is now accepted she just had a few questions. I'm going to call her back tomorrow so hoping you can assist:

2. [the applicant] currently has a support worker through NDIS. She has queried if EML can pay for this. Jess (in the past) and myself recently have advised her that this is not something that is provided under the Act. As she is still persisting, this may need to come from you.

3. Justin - Psychologist/Social Worker (It has not been clarified if Justin is a Psychologist or social worker) - [the applicant] is wanting to know if he can invoice EML and if so, where too [sic] etc.

Happy to discuss as this will likely be a little complex and we have to be mindful [the applicant] is not contactable by email.[42]

78. Ms Daniel-Marsh emailed her reply the same day, with a copy to Ms James:

2. I do not believe EML is liable to pay for a support worker and worker's compensation (Heidi [James] - please intervene if I am wrong).

3. Justine [sic] Purtle - I believe is a social worker...there is no indication on his correspondence and website that he is a qualified psychologist. We cannot pay him - he is not classified as an allied health professional or a qualified treating practitioner.

4. Our determinations are based on legally qualified medical practitioner's (either [the applicant's] treating GP or psychiatrist) recommendations (they will recommend certified treating specialists/practitioners - a social worker does not meet that criteria).[43]

79. Ms Groot emailed Ms James and Ms Daniel-Marsh the next day:

Marie - Are you happy to have these conversations with [the applicant] fairly soon? I am happy to pop over for a meeting with the three of us ([the applicant] prefers to meet in person).[44]

80. I assume "a 57" refers to an IME required under section 57 of the SRC Act.

81. Ms Daniel-Marsh arranged for a psychological assessment of the applicant by Dr Wayne Reid, a neuropsychologist, on 10 December 2019 and with Dr Doron Samuel, a psychiatrist, on 12 February 2020. Her file note dated 13 November 2019 records her reasons:

Due to IW's underlying conditions - schizophrenic (unrelated to work) which conflicts with workplace injury and condition accepted - generalised anxiety, need to organize psychological assessment and IME.

83. Ms Daniel-Marsh spoke with the applicant by telephone on 15 November 2019 about the IME with the neuropsychologist. Her file note records that she "explained this is to assist her with her treatment needs and assess her current condition and capacity".[45]

84. On 18 November 2019, Ms Daniel-Marsh emailed Mr Purtle:

Dr Horan has referred [the applicant] for psychological support/reviews and [the applicant] has stated you are her treating psychologist, just wondering if you are a registered allied health provider - psychologist? For treatment referrals the medical practitioner should be referring registered health providers.

EML has approved treatment for psychiatrist and psychology treatment for [the applicant's] approved worker's compensation injury/condition of generalised anxiety only. If you are not a registered treating psychologist EML will not approve the invoices for payment.

I think your services may come under National Disability Insurance Scheme (NDIS).[46]

I am a registered Allied Health Provider registered as a Mental Health Social Worker under Medicare. I provide Focused Psychologically [sic] Strategies and am required by Medicare to undertake the same professional development as psychologists to remain registered with Medicare.[47]

86. Ms Daniel-Marsh reported Mr Purtle's response to Ms Groot in a telephone call on 19 November 2019. Ms Daniel-Marsh's file note records that Ms Groot said she was due to have a case conference with the applicant and her GP that day and that Ms Daniel-Marsh requested her to obtain further information about the treatment Mr Purtle was providing.

87. Ms Daniel-Marsh telephoned the applicant on 20 November 2019. Her file note records that the applicant voiced concerns about having to attend a neuropsychological assessment, and that she was given the following explanation:

• - Advised IW EML is required to conduct an independent medical examination under the compensation Act
• - This can be done before or after a claim is accepted, it is done every 6 to 12 months at times
• - Advised IW this is to make sure we are managing claim and paying for treatments appropriately as per accepted condition of generalized anxiety (as I do not have a medical background)
• - ...
• - Advised IW we want to ensure that her treatments are helping her with her accepted condition of "generalised anxiety" as per injury at previous work, having regard to the fact that she has an underlying condition of schizophrenia [48]

88. Ms Daniel-Marsh wrote to Dr Reid on 21 November 2019, requesting him to undertake a psychological assessment of the applicant. His opinion was sought in response to a series of questions grouped under the following categories: 'Diagnosis', 'Liability', 'Incapacity' and 'Medical Treatment'.

89. The letter stated Dr Reid's opinion was required to "assist with EML to determine current liability and the assessment of [the applicant's] claimed condition of generalised anxiety...".[49]

90. The questions asked of Dr Reid establish, in my opinion, that the main reason for requiring the applicant to undergo an IME at that time was to assist EML to determine whether the applicant continued to be entitled to compensation for a workplace injury under section 14 of the SRC Act. For example, under 'Diagnosis', EML asked whether "there are any aspects of clinical examination which indicate [the applicant] is malingering, intentionally producing or feigning physical or psychological signs or symptoms?"

1. Please provide your opinion in detail as to whether [the applicant's] claimed condition of generalised anxiety (originally sustained on 1 November 2018 at her former employment with...Unit) is contributing to, to a significant degree at her current employment in the retail industry.

2. Do the circumstances of [the applicant's] former employment with the...unit (workplace injury sustained on 1 November 2018) continue to contribute to a significant degree to the diagnosed accepted condition of generalised anxiety or the aggravation of any such condition currently? [50]

1. Having regard to [the applicant's] timeline and medical documentations does [the applicant] currently suffer an incapacity for work as a result of her claimed condition of generalised anxiety sustained on 1 November 2018?

2. [The applicant's] workplace injury sustained on 1 November 2018 is for generalised anxiety due to workplace stress, [the applicant's] last day at work was 15 May 2019. Having regard to [the applicant's] underlying condition of schizophrenia (which is not accepted work-related injury), is Dr Horan's return to work recommendations reasonable?

• - Are there any aspects of the clinical examination which tend to suggest [the applicant] is:
  1. Voluntarily exaggerating his [sic] symptoms
  2. Displaying symptoms and examination findings inconsistent with her claimed condition of generalised anxiety (injury sustained on 1 November 2018)

3. Please explain in detail and identify the link between [the applicant's] injury sustained on 1 November 2019 with her former employment and how this relates to her current condition of generalised anxiety and restrictions for work, as having partial capacity for work currently recommended by Dr Horan.

4. Are there any non-employment factors that affect [the applicant's] capacity for employment due to her generalised anxiety injury sustained on 1 November 2018?

93. The reason EML gave to the applicant for requiring her to attend an IME - namely, to ensure she was receiving appropriate treatment for her accepted workplace injury - was mentioned, almost in passing, only in the last part of the brief, under 'Medical Treatment', where Dr Reid was asked whether the treatments the applicant received following the injury had assisted in improving or resolving her condition, and to recommend any other medical or rehabilitative treatment he considered the applicant reasonably required "in respect of her claimed condition of generalised anxiety" and to indicate whether such treatment formed part of a permanent improvement in the applicant's health. Again, in my view, the primary focus of these questions was to help EML determine whether it should continue to accept liability to pay compensation for the applicant's injury.

94. Ms Daniel-Marsh wrote to the applicant on 3 December 2019, to advise that her claim under section 16 of the SRC Act for compensation for reasonable medical expenses up to and including 17 December 2019 was accepted based on a medical certificate from the applicant's GP recommending, among other things, that she "receive general practitioner consultations, medications related to your accepted compensable condition of generalised anxiety - antidepressant and antipsychotic. Psychiatrist reviews and psychology treatment".[51] The applicant was advised that she must provide an ongoing medical certificate for workers' compensation until her treating GP certified her fit for work and was asked to arrange a consultation with her GP for an assessment to enable EML to make a further determination in relation to compensation for medical expenses after 17 December 2019.

95. An information sheet included with the letter said, under the heading 'Requirements for Further Evidence':

Compensation payments will be met up to a certain date. It may not be possible to reimburse you for expenses beyond the date specified in a "determination" unless further medical evidence provides clear connection between your employment and the compensable condition. If it is necessary for you to have medical treatment or time off work beyond the "determined" date, you will need to arrange with your treating medical practitioner or specialist, to provide further medical evidence for further consideration. The Medical Review Certificate provided to you by EML may be utilised for this purpose.[52]

96. Later the same day, Ms Daniel-Marsh discussed with the applicant by telephone EML's position in relation to paying for treatment provided by Mr Purtle. A file note records:

• - Advised IW she is approved for psychiatrist and psychology treatment - when I say psychology treatment - the expert needs to be a registered psychologist and is an allied health provider.
• - Advised we need to make sure the treatments she is getting for her work related injury of generalised anxiety is helping her.
• - Reminded IW in regards to payment approvals and determination we rely heavily on medical evidence and must adhere to the compensation act. Having regard that I do not have a medical background.
• - Advised IW I have requested Dr Horan her GP to call me back in regards to getting further info about Mr Purtle's treatment plan.[53]

97. On 3 December 2019, Ms Daniel-Marsh wrote to Mr Purtle:

I spoke to [the applicant] today and discussed any medical invoices and treatment reports concerning the management of her worker's compensation claim should be directed to me to look after and she should not worry about this. I also spoke to Dr Horan to clarify a few things on the medical certificates and treatments she has listed for [the applicant].

Please find attached treatment notification plan form (we have discussed this before regarding needing more information about your credentials in your field), Dr Horan has noted your details on [the applicant's] medical certificate for worker's compensation for her accepted compensable condition of generalised anxiety (workplace injury). She has stated on [the applicant's] medical certificate for worker's compensation under treatment, that you are facilitating psychological support.

EML has approved [the applicant] for psychology treatment, for us to further determine whether your invoices fall under psychology treatment, can we please have further information and clarity on your treatment by submitting a treatment notification plan form...[54]

98. The applicant attended the scheduled IME with Dr Reid on 10 December 2019. She described the experience in her written submissions:

[P]rior to Christmas I was sent by EML to a Neuropsychologist. I looked up this person and saw he specialised in brain injury or neuro diseases like dementia. I was horrified and spoke with EML about my concern that this was completely inappropriate for me, but my concerns were dismissed and I was told I had to go. The man himself was a nice person but it was a 4 hour assessment, with multiple puzzles, lists, mental arithmetic, general knowledge, sequential patterns, finished with a 300 question form focusing on alcohol, drugs and the like. I had one 20 minute break in the middle, but no offer of a glass of water, or any break between tests - they just came one after the other, and generally finished on a negative, when you started failing. It was a stressful and distressing assessment to go through and it took me days to recover from it.[55]

99. The applicant discussed her concerns with Ms Groot, who in turn discussed them with Ms Daniel-Marsh. Ms Daniel-Marsh's file note refers to Ms Groot as 'RCM', which I take to mean 'Rehabilitation Case Manager', and records the following:

RCM advised IW expressed her feedback about EML sending her to a psychological assessment

RCM advised IW stated the assessment made her feel de-moralised and in particular one question on alcohol and drugs and how it would make her feel being on it

RCM also advised IW was concerned why assessor was advising her to seek psychology treatment as he noted Justin Purtle - the social worker (that is providing psychological support) is not a registered psychologist. RCM noted she had already explained the process (prior) with claims and why treatment is important because it is to assist her recovery.

RCM advised IW felt like she was being bullied by EML having her sent to an assessor and noted the standard letter RE s57 appointment - stated if she did not attend her claim would potentially be suspended

RCM explained to IW that the purpose of s57 is to help assist with claims and treatment recommendations

Advised RCM that when she came to visit yesterday 11/12 in person, she did not mention how her assessment went and prior to the appointment she was explained in detail why we arrange s57's and she had understood at the time, also advised RCM the time of her visit to EML, I had a senior case manager Simon Ellacott assist me (see notes 11/12 re: why she came to visit)

RCM advised IW is requesting 3 questions to be answered in writing, and will email details RE her conversation with IW as well

100. Ms Daniel-Marsh wrote to the applicant on 20 December 2019, replying to her questions:

I refer to your enquiry regarding your recent Independent Medical Examination on the 10 December 2019, that you had with Ms Sharna Groot, Rehabilitation Case Manager on the 12 December 2019.

When you have made a claim for compensation under section 54 of the Safety, Rehabilitation and Compensation Act 1988 (SRC Act) the relevant authority can request you to attend and Independent Medical Examination (IME) and undergo this assessment by a legally qualified medical practitioner under section 57 of the SRC Act.

The relevant authority under section 57 of the SRC Act can choose a legally qualified medical practitioner nominated by the relevant authority. In this instance, you saw Dr Wayne Reid, consultant neuropsychologist and clinical psychologist who meets the qualifications and criteria under the SRC Act.

Question 3. What purpose/what was the anticipated outcome that will assist EML with her treatment/recovery?

Independent Medical examinations/assessments are for the purpose to seek a further independent medical opinion and review of your compensable condition and treatment recommendations.

101. In the week before Christmas 2019, Ms Daniel-Marsh and Mr Purtle exchanged emails about payment for treatment provided by Mr Purtle. Ms Daniel-Marsh maintained that to be eligible for payment the applicant's psychological treatment had to be provided by an appropriately registered psychologist. As Mr Purtle did not meet that criterion, she determined that compensation was not payable in respect of his costs. She discussed her views with the Team Manager, Ms James, who agreed. In her witness statement, Ms James referred to the Treatment Notification Plan provided by Mr Purtle, parts of which he was unable to complete because the required information was outside the scope of his services. Ms James described the type of treatment Mr Purtle was providing as "social support services such as assistance with computers, lifts and driving as opposed to psychological treatment".[56] Whether this is an appropriate description is not an issue that I must decide.

102. Dr Reid prepared a detailed report for EML dated 6 January 2015. Under 'Medical Treatment' he made the following recommendations:

I am of the opinion [the applicant] requires further psychological management with a clinical psychologist using cognitive behaviour therapy to treat her condition of generalised anxiety in addition to seeing her psychiatrist Dr Diamond, prescribed medications and regular follow-up with her general practitioner and mental health social worker.

From her history her medication is having a positive effect on her earlier symptoms of schizophrenia which are now in remission and are assisting in her anxiety related symptoms and sleep disturbance. There is very strong evidence to suggest that her symptoms of generalised anxiety disorder, coping with stress and assertiveness training techniques would all have a positive effect on improving symptoms utilising cognitive behaviour therapy.

As stated above the medications she is currently being treated with have known benefits in treating psychotic symptoms, anxiety and depression. Assertiveness training will also assist her in managing her tendency to be submissive and tendency to not say no when delegated tasks she is not able to manage. The cognitive behaviour therapy is designed to treat her negative cognitions, irrational thinking and physiological symptoms of anxiety.

103. On 15 January 2020, Ms Daniel-Marsh spoke with the applicant by telephone. She advised the applicant that she had arranged an IME with a psychiatrist to review the neuropsychological report and to obtain a further medical opinion. The applicant asked Ms Daniel-Marsh to provide a copy of Dr Reid's report to Mr Purtle, but the request was refused on the grounds that Mr Purtle was not a registered allied health provider.

104. On 17 January 2020, Ms Daniel-Marsh wrote to Dr Doron Samuell, a psychiatrist, confirming the arrangement for him to undertake an independent medical examination of the applicant and requesting that he prepare a report "to assist with EML to determine current liability and the assessment of [the applicant's] claimed condition of generalised anxiety".[57]

105. On 20 January 2020, Ms Daniel-Marsh wrote to Dr Reid requesting that he prepare a supplementary report addressing the apparent connection Dr Luke Murphy referred to in his report dated 9 September 2019, between the applicant ceasing to take her prescribed medication and the onset of her stress-related symptoms at work.

106. On 22 January 2020, in a telephone call to Ms Daniel-Marsh, the applicant expressed concern about seeing Dr Samuell after reading negative reviews about him on a website called RateMDs. She offered to see someone else. Ms Daniel-Marsh told her the choice of an IME doctor was not a reviewable decision and, if she chose not to attend, her claim would be put on hold and she would not be entitled to receive incapacity payments until she attended the IME.

107. On 23 January 2020, Ms Daniel-Marsh wrote to the applicant enclosing her determination that the Territory was not liable to pay for treatment by Mr Purtle. The reasons for decision included:

Under the SRC Act, medical treatment includes therapeutic treatment by, or under the supervision of a registered ( under the law of the State or Territory) allied health practitioner/professionals as listed below:

• Medical practitioners
• Physiotherapist
• Pharmacist
• Psychologists

Mr Purtle it is not a registered allied health practitioner, therefore the treatment plan and invoices provided do not meet the definition of medical treatment under the SRC Act. Furthermore, whilst Mr Purtle has stated he has been seeing you since December 2011, he also notes he has been addressing your workplace anxiety (in his report dated 4 June 2019).

The treatment plan and reports provided do not measure or demonstrate the effectiveness of the treatment and is not in line with the Clinical Framework.

Section 16 of the SRC Act makes provision for payment of compensation for medical treatment that is reasonably required in relation to a compensable injury. Such treatment includes medical treatment by, or under the supervision of, a legally qualified medical practitioner, and therapeutic treatment obtained at the direction of a legally qualified medical practitioner.

Having regard to the available medical evidence and information, I am not satisfied that cognitive behavioural therapy provided by Mr Purtle constitutes medical treatment for the purposes of section 16 of the SRC Act. I have therefore decided that ACT Government is not liable to pay compensation for cognitive behavioural therapy provided by Mr Purtle under section 16 of the SRC Act.[58]

108. On 27 January 2020, Dr Reid provided a supplementary report in which he confirmed his opinion that the applicant's employment had played a significant role in the exacerbation of a pre-existing condition that had been well managed. He believed she required ongoing management with her treating psychiatrist and psychologist using a combination of medication prescribed by her psychiatrist and cognitive behaviour therapy by her psychologist.

109. On 28 January 2020, the applicant made a complaint to the Human Rights Commission.

110. Also on 28 January 2020, the applicant emailed Ms Daniel-Marsh to advise that she would not be attending the IME with Dr Samuell. She gave as her reason:

...my compensable injury (generalised anxiety) escalating due to the negative comments I have read about this psychiatrist on RateMD. I acknowledge that not all people may respond this way; but I do, and I must protect my mental health and recovery. I have offered to see someone else, or to be given a list of people I could choose from but you have refused this.[59]

111. The applicant asked that her email be treated as a formal complaint.

112. The applicant's complaint was escalated to the Team Leader, Ms James, who responded on 31 January 2020:

Where there are constitutional conditions similar to the compensable condition, we need to ensure we are correctly providing treatment and assistance for the compensable injury. To ensure the correct appropriation of entitlements, we require independent medical assessment is to occur. In this instance, you were required to attend an assessment in December 2019 for independent clinical psychological testing assessment. This information now needs to be reviewed by a psychiatrist in order to assess the findings and to offer their independent opinion on the testing report, ideally, after current conducting their own assessment of you and a full review of the information from your claim file. I understand the psychiatry assessment is approximately an hour.

Where deemed necessary, an independent medical assessment can be arranged each month as per the current ministerial instrument, please understand that EML use this with the discretion intended. In this instance, there is a definitive reason for the two assessments, each assessment providing clarifying information for your claim. The first assessment was required to conduct independent psychological testing and the second for independent review of the psychological testing and psychiatric review.

I have taken your reasons into consideration regarding the negative comments you have read on RateMD and your concerns around your anxiety, mental health and recovery. I do need to preface that comments made online towards any person or entity are made personally, these comments do not however provide an informed assessment of a professionals medical capability. Unfortunately, while we respect your opinion, these comments do not allow for reasonable excuse not to attend the appointment, the appointment for 12 February is still required for you to attend.

I also need to inform you that non-attendance of appointments may result in loss of payments, please understand that this is not a decision EML would ever make a lightly, we are however obligated to provide you with the information and implications so that [you] are able to make the most informed decision that is right for your circumstances.

EML respect and take very seriously your emotional state and will be guided by you on the how you want to participate and communicate in your recovery. We are available to answer any questions so that you are kept informed and able to make decisions appropriate for you, and we are committed to providing you with clear explanations for any decisions we make based on our role in facilitating your recovery.[60]

113. Ms James advised that the applicant could bring a family member or friend as a support person during the IME, although they would not be permitted to participate or speak.

114. Earlier, Ms Daniel-Marsh had offered the applicant the opportunity to attend an IME with a different psychiatrist, Dr Prabal Kar. However, the applicant refused. In an email to Ms James sent on 3 February 2020, the applicant explained:

I let Marie know that I have decided that I cannot attend either of the psychiatrists she has chosen for me. Unfortunately the second psychiatrist had even more alarming feedback on RateMDs, which raises my anxiety intolerably. I have asked Marie for a psychiatrist with good feedback on RateMDs, in which case I would be happy to attend.

I appreciate your view that you cannot consider content on RateMDs. Unfortunately it is all I have so I cannot do otherwise than taken very seriously. I realise that what bothers one person may not bother others, but I need to respect my own mental health. It is critical to have a psychiatrist I can feel comfortable with and have empathy with, particularly if there is any chance of seeing the monthly.[61]

115. The applicant reiterated that she remained willing to see a psychiatrist "who does not frighten me or exacerbate my anxiety. I only have RateMDs to go on, but I'm certain there are many psychiatrists available with more positive feedback."[62]

116. On 3 February 2020, the applicant attended a medical review with her general practitioner, Dr Horan and a rehabilitation counsellor, Frances Clark, who reported later that day:

[The applicant] reviewed her medications with Dr Horan and discuss strategies to better manage pre-existing medication regimes.

[The applicant] noted the main current stressors included the ongoing process with EML regarding workers compensation. She noted to have submitted a review regarding her IME doctor following reading numerous negative reviews online. She advised that EML presented her with another option and that this specialist too had negative reviews on MD Guidelines. She noted to have pursued formal review processes regarding this, noting that she is aware that her benefits may be cut as she has chosen to not participate in her IME. Dr Horan discussed that he did appear that current primary stressors were the process as opposed to the return to work. Dr Horan noted that many reviews online tend to be negative focused rather than positively focused.

Rehabilitation Services discussed that they were to continue as normal with assisting [the applicant] within her return to work whilst she was pursuing these matters. They also noted that it may be possible that IME doctors were perceived to be more negative as they try to be impartial as opposed to a treating doctor who's focus is ongoing treatment, encouragement and rapport building.

The applicant noted that she was too scared to attend the IME appointment and would continue to pursue her formal review routes. She noted to be motivated for her return to work.[63]

117. The applicant's return to work plans were discussed. It was agreed there should be a further review in a month's time and that, in the meantime, the applicant should continue with her current medication regime.

118. By letter dated 5 February 2020, Ms Daniel-Marsh notified the applicant that her incapacity payments were suspended for failing to participate in the IME appointment made for 12 February 2020 without reasonable excuse.

119. On 13 February 2020, the applicant lodged a request for reconsideration of the decision to refuse payment of Mr Purtle's invoices. This was not able to be considered at that time because her workers' compensation claim was suspended under section 57 of the SRC Act.

120. On 5 March 2020, the applicant advised that she was agreeable to attending an IME with Dr Kar.

121. On 6 March 2020, Ms Daniel-Marsh wrote to Dr Kar, outlining the applicant's medical history and a summary of the workers' compensation claim, and requesting that he prepare a report on a range of issues including diagnosis, liability, incapacity, and medical treatment.

122. The applicant attended the IME with Dr Kar on 12 March 2020. The suspension of her workers' compensation claim was lifted the same day.

123. On 6 April 2020, Sophie Gates, a Reconsideration Officer with EML, wrote to the applicant confirming the earlier determination denying liability for payment of Mr Purtle's invoices.

124. On 22 April 2020, the applicant lodged an application in the AAT for a merits review of the reconsideration determination.

125. On 28 April 2020, Dr Kar provided a report to EML in relation to his assessment of the applicant, in which he opined:

[The applicant] does not have and has not had a Generalised Anxiety Disorder. [64]

...the issues at her work would have stressed [the applicant] more as she was developing a psychosis after stopping her medications. The work issues would have added stress for her. However, the onset of her psychosis, which has been attributed to work, was not caused by the stressful issues that took place at her work, but because [the applicant] had ceased her antipsychotic medications in August/September 2018.[65]

If the applicant had remained on the medications and not ceased them, she would have been better able to cope with the stress of her work. Stress at work does not necessarily cause a mental illness. To feel stressed at stressful work or workload is normal. Stress is not a mental illness.

[The applicant] had the pervasive and serious psychiatric condition of pre-existing episodes of schizophrenia. She relapsed as she had stopped her medications. Due to her family history she was at genetic risk. She had a psychotic episode when she was 16. She has had more episodes in the years 2000, 2013 to 2014, 2016 to 2017, and after stopping her medications in 2018.[66]

While [the applicant] is accepted by the insurer as having had a mental health condition caused by her former employment with the injury sustained on 1 November 2018. It is my opinion that [the applicant] has had no condition caused by her former employment...[67]

[The applicant] does not have Generalised Anxiety Disorder. She does not have any psychiatric condition as a result of her former employment. She has not had any injury sustained on 1 November 2018, however, I note that she has an accepted claim for a psychological injury called Generalised Anxiety Disorder, sustained on 1 November 2018.

The acceptance of a claim is an administrative decision. My report is based on evidence-based medicine. I have given consideration to all information provided in the file, including the reports by the treating psychiatrist, Dr Diamond, the forensic psychiatrist, Dr Murphy, and other information in the file from other sources as well as [the applicant's] statement.

In my opinion [the applicant] will regain her previous capacity for work, which is 18 hours a week, if she remains on medication. If she stops the medication in future, she will likely have another relapse within a few months of stopping the medications, as she had in August/September 2018.

She developed anxiety symptoms and sleeplessness soon after she stopped the medications. I believe she is regaining her capacity for work. She appears motivated for work. I believe that if she continues on treatment, she will regain her full capacity for work within the next 8 to 12 weeks.[68]

127. On 1 May 2020, Ms Daniel-Marsh emailed the reports prepared by Dr Reid, Dr Kar and Dr Murphy to the applicant's treating psychiatrist, Dr Diamond and general practitioner, Dr Horan, and invited their comments.

128. A case conference was held on 4 May 2020, attended by Ms Daniel-Marsh, Ms Goodall (the Rehabilitation Case Manager for the Territory who took over responsibility for the management of the applicant's claim from Ms Groot), Ms James (the Team Leader) and several others where a consensus was reached that, considering the new medical evidence, the Territory was not liable for the applicant's medical condition.

129. By letter to Ms Daniel-Marsh dated 4 May 2020, Dr Diamond gave a scathing refutation of Dr Kar's report, in which he described Dr Kar's opinions as "prejudicial, biased, inexpert and lack (sic) balance so that his opinions are incorrect and manifestly prejudicial in a negative way".[69]

130. The applicant also provided a written response to Dr Kar's report, taking issue, among other things, with his opinion that ceasing her antipsychotic medication was the primary cause of the applicant's condition.

131. On 26 April 2020, Ms Daniel-Marsh forwarded Dr Diamond's letter and the applicant's response to Dr Kar for comment.

132. Dr Kar responded in writing on 31 May 2021. Fundamentally, he disagreed with Dr Diamond's diagnosis of Generalised Anxiety Disorder. He wrote:

It was incorrect to make a diagnosis of Generalised Anxiety Disorder in [the applicant]. The reason she relapsed was ceasing her antipsychotic drugs. A relapse was highly likely and it took place.

The information provided by Dr Diamond does not include any evidence-based published medical literature. It appears that Dr Diamond had discontinued medications in his patient, who had relapsed, and the responsibility for the relapse was later projected onto work-related factors.

While her claim has been accepted on the basis of an aggravation of schizophrenia, it is my opinion that [the applicant] had a relapse of her symptoms of schizophrenia following the cessation of her medication. It was a potential adverse outcome on ceasing her antipsychotic medications.

While [the applicant] may have experienced stress at work, it was the ceasing of her medications that caused the relapse of her condition. This is essentially my opinion: the ceasing of antipsychotic medication was done in a high-risk patient who was at potential risk of relapse. I believe it was unsafe to cease her antipsychotic medications. The treatment was not of the standard described in the Practice Guidelines of the American Psychiatric Association which describes the high risk of relapse in a person who has had multiple prior episodes of schizophrenia after ceasing antipsychotics. Her condition had previously been in remission due to the use of antipsychotic medication. Ceasing the medication caused her symptoms to re-emerge.

In my opinion, the recurrence of her symptoms would not have occurred if her medications for schizophrenia had not been ceased. It was the immediate and the proximate cause, as her symptoms were previously well controlled by her medications. Ceasing the medications caused the re-emergence of the symptoms and caused a recurrence of abnormal thoughts and the other symptoms, including anxiety. The restitution of treatment with antipsychotic medications caused a gradual control of her symptoms.[70]

133. On 11 June 2020, Ms Daniel-Marsh wrote to the applicant:

I have started a review of your ongoing entitlements for reasonable medical expenses and incapacity payments.

This review is based on medical evidence that supports that there are no entitlements for workers' compensation under the Safety, Rehabilitation & Compensation Act 1988 (SRC Act).

I have reviewed the reports (initial and supplementary report) of Dr Wayne Reid, clinical psychologist and neuropsychologist, reports from your psychiatrist Dr Michael Diamond and reports by Dr Prabal Kar, consultant psychiatrist. After a review of the evidence and the most recent supplementary report of Dr Kar which considers the information from Dr Diamond, I intend to determine that there is no liability on your claim as your employment is no longer significantly contributing to your symptoms.

As part of the assessment will consider all available and relevant information I have in relation to your claim.

If you would like copies of the documents being considered in this assessment, please let me know.

If you have additional information you would like me to consider when making this decision, send this to me no later than 11 July 2020. Let me know if you need more time to provide this information.

If I do not receive any additional information by this date, I will review your ongoing eligibility using the information available to me.

Once I've completed the review I will contact you with the outcome.[71]

134. On 7 July 2020, Dr Horan certified that the applicant was fit to return to work at pre-injury hours and duties.

135. On 10 July 2020, Ms Daniel-Marsh wrote to the applicant, advising her that EML had closed the compensation claim as the applicant was now fit to resume work.

136. On 30 September 2020, the Territory agreed to settle the AAT proceeding on the basis that the Territory agreed to pay compensation for the cost of the applicant's consultations with Mr Purtle between 1 November 2018 and 6 July 2020. The AAT made orders by consent giving effect to the agreement on 1 October 2021.

137. Initially, the scope of Discrimination Claim One was not entirely clear. In terms, it related only to the allegations in paragraph 2(b) of the Complaint, but the applicant's case at the hearing treated the allegations in paragraphs 2(b) and 2(c) as aspects of the one claim. EML understood that paragraph 2(c) formed part of the case it had to meet and conducted its defence on that basis.

138. Paragraph 2(b) of the Complaint alleged that when the applicant's workers' compensation claim was granted, EML refused to pay for her Mental Health Foundation support workers:

EML have just advised that they don't pay this, but I do not believe this is excluded in the SRC Act; I believe this is discretionary for the EML assessor. If I needed a physical support, I am sure it would be paid. I need my support workers to help me implement treatments and support me in moving ahead with my phobias including with using computers, driving and using lifts. They are just as much an aid to me as a walking stick would be to someone with a physical disability. As it is I have to use my NDIS funding, which should not have to be used for work purposes.

139. Paragraph 2(c) alleged that EML refused to pay for the applicant's mental health social worker:

Again, EML say they cannot approve him because they say social workers aren't listed. However, he has provided information from the Comcare website that shows social workers are approved, that I have found Comcare information that suggests that it is discretionary how medical treatment is defined - for example it can include acupuncture or gym exercises.

140. The applicant had been seeing her mental health social worker, Mr Purtle, for psychological treatment for many years, the cost of treatment being paid for under the NDIS. She explained the impact on her of EML's refusal to pay for Mr Purtle:

The impact on me was devastating as a person with mental health disability. I had been seeing my Mental Health Social Worker for many years and he was by far the most appropriate to help me address my injury. It was obvious that he had the qualifications necessary, but instead of making appropriate enquiries, the Case Officer repeatedly refused to pay him. It was only through the AAT that I won my case that agreed that Mental Health Social Workers should indeed be paid under the SRC Act. [72]

141. The applicant's GP recommended that the applicant should be provided with operational support to assist in her recovery, particularly to help her resume to drive a car, use lifts, and use a computer for emailing. The applicant explained the impact on her of EML's refusal to pay for operational support:

EML also verbally refused my...Mental Health Support worker which the Discrimination Act acknowledges as necessary. I was very reliant on my Mental Health Support worker as my injury included inability to use computers, lifts, drive a car, or food shopping, and my Support worker stood with me for months to help build my abilities again to do these basic things. Not only my personal life depended on the support, but importantly my ability to recover my employment skills were highly dependent as well.[73]

142. The applicant submitted that the Discrimination Act acknowledges that a mental health support worker is "necessary". This appears to be based on section 4 of the Discrimination Act, which explains the objects of the Act. Section 4(d)(iii) identifies one of the objects as "to promote and facilitate the progressive realisation of equality, as far as reasonably practicable, by recognising that...the achievement of substantive equality may require the making of reasonable adjustments, reasonable accommodation and the taking of special measures". The applicant submitted this meant EML staff should have taken reasonable steps to make necessary operational support available. Failure to do so amounted to doing an act, as defined in section 4A(1) of the Act.

143. The applicant claimed that EML's decision to refuse to pay for treatment by the applicant's mental health social worker, and to pay for operational support recommended by the applicant's GP, was because of her schizophrenia.

I was not provided with the correct support I needed because I was dismissed as being "a schizophrenic" who just needed her medication... I believe that had I been a person who needed a walking stick or a bigger monitor, my need would have been addressed. But because my need was for a support worker due to my mental health, it was not even considered.[74]

145. The applicant submitted that EML refused to pay for operational support because EML claimed wrongly that it was not 'medical treatment' within the meaning of section 4 of the SRC Act, which defines 'medical treatment' as:

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(b) therapeutic treatment obtained at the direction of a legally qualified medical practitioner; or

(c) dental treatment by, or under the supervision of, a legally qualified dentist; or

(d) therapeutic treatment by, or under the supervision of, a physiotherapist, osteopath, masseur or chiropractor registered under the law of a State or Territory providing for the registration of physiotherapists, osteopaths, masseurs or chiropractors, as the case may be; or

(e) an examination, test or analysis carried out on, or in relation to, an employee at the request or direction of a legally qualified medical practitioner or dentist and the provision of a report in respect of such an examination, test or analysis; or

(f) the supply, replacement or repair of an artificial limb or other artificial substitute or of a medical, surgical or other similar aid or appliance; or

(g) treatment and maintenance as a patient at a hospital; or

(h) nursing care, and the provision of medicines, medical and surgical supplies and curative apparatus, whether in a hospital or otherwise; or

(i) any other form of treatment that is prescribed for the purposes of this definition.

146. The applicant submitted that two limbs of the definition applied to her circumstances:

(a) medical or surgical treatment by, or under the supervision of, a legally qualified medical practitioner; or

(i) any other form of treatment that is prescribed for the purposes of this definition.[75]

Any reasonable person would see that this section was drawing as broad a view of medical treatment as possible. My GP's inclusion of operational support as necessary treatment in her GP Certificates of Capacity for Work would seem to definitely meet (a), and if there were any doubt, then section (i) would seem to cover it.[76]

148. The applicant explained why she believed EML's refusal to pay for operational support was unlawful discrimination:

I believe the "reasonable person" test should have been applied when I asked for my support workers to be covered, and should be applied now. I was a person with psychological injury needing support workers to help me both at work (computers) and in getting to work (car, lift). My doctor has repeatedly documented this need and my rehab officer met on several occasions with my support worker. To deny me this support was a direct discrimination against my mental illness as I believe they just thought I needed to take medication (see next section). This is NOT what any of my health practitioners thought - not my psychiatrist, nor my mental health social worker, nor my GP. It was simply prejudice on the part of EML staff who had never met me... Being 'off medication' in my case had nothing to do with my injury, nor the types of supports I required.

To assume that I, as a person with a disability, fits a cliché idea of my disability is discriminating against my protected attribute...

I was simply presumed to have this attribute (needing to go back on my medication); I did not actually have it. And even though I proved time and again that I had performed very well in my work without medication - even receiving awards for it - and I had travelled to China with my disabled son without medication - the opinion thrown back at me was that I needed medication. Disregarding reality like that was blatant discrimination.[77]

149. Although the applicant claimed that she was subject to indirect discrimination,[78] I am unable to see how a claim of indirect discrimination can fit the facts on which she relies. The applicant's characterisation of the claim is not determinative.[79] In essence the facts on which she relies are that she was treated unfavourably because of her protected attribute. This is an allegation of direct discrimination.

150. Discrimination Claim Two relates to a decision by EML to require the applicant to undergo an IME with a neuropsychologist and psychiatrist nominated by EML, and EML's rejection of the applicant's reasons for not wanting to be examined by EML's nominees on the basis that it did not constitute a 'reasonable excuse' for not attending the IME.

151. The applicant claimed that EML breached section 20(1)(b) and/or (c) of the Discrimination Act by directly discriminating against her in the terms or condition on which EML provided services to her, or in the way in which EML provided services to her.

152. The applicant emphasised that she was not required to attend an IME before her claim was approved, however:

...once my claim was approved, the new case officer required me to attend what they call an Independent Medical Examination. I have never believed there were any grounds for this. I was recovering and attempting work and my claim had only just been granted. I believe it was discriminatory to require me to go to an IME under the circumstances. There was nothing new in my condition and no compliance issues to address. The only thing that went against me was the very brief opinion by one of their medical assessors that I just needed medication...[80]

153. The power to require a person making a workers' compensation claim to attend an IME lies in section 57 of the SRC Act. The applicant submitted that the decision to require her to attend an IME under section 57(1) and the decision to suspend her compensation payments under section 57(2) for failing to attend an IME "without reasonable excuse" were discretionary decisions. The applicant's complaint focussed on the reasons why the discretion was exercised unfavourably in her case:

In my case, there was no objective reason for it; I fully believe it was discrimination because of my disability. Similarly, in point 2, it is the case manager's discretion about what constitutes "reasonable excuse". I was desperately pleading not to be sent to someone with a bad reputation, and they dismissed my concerns out of hand. I heard later that they actually can allow the person to choose their own examiner. This was never offered to me, even though I pleaded for it, and even though my refusal meant cutting off my payments.[81]

154. The applicant surmised that she was required to attend the IME with the neuropsychologist "because I had a pre-existing mental health disability and EML was fishing for a negative assessment."[82] She surmised that she was required to attend the subsequent IME with the psychiatrist for the same reason. She observed, "I was only into my third month of my claim and there was no cause whatever to trigger any medical assessment, let alone a second one".[83] EML's actions amounted to "not accepting the lawful decision that had been made to accept my claim" and "reeks of discrimination because of my schizophrenia".[84]

155. The applicant submitted that she was treated unfavourably by EML's discretionary decision to stop compensation payments to her until she attended the IME with the psychiatrist, leaving her no choice but to comply. She claimed that this was direct discrimination on the grounds of her disability.

156. EML provided a detailed written outline of submissions dated 9 September 2021 (Respondent's Submissions). Broadly speaking, EML outlined three reasons why it said the applicant's claims must fail:

(a) First, each of the alleged unlawful acts was done under the authority of the SRC Act and therefore could not be unlawful for the purposes of the Discrimination Act.

(b) Second, EML could not have unlawfully discriminated against the applicant because it did not provide services to the applicant.

(c) Third, in any event EML did not discriminate against the applicant.

157. As to acts done allegedly under the authority of the SRC Act, EML submitted:

(a) The alleged discrimination involves challenges to the exercise of statutory discretions under the SRC Act, specifically:

[T]he Applicant asserts that a decision made under s 16 of the SRC Act declining to compensate the Applicant for various treatment costs was discriminatory as the statutory discretion was exercised inconsistent with the provisions of the Discrimination Act, including that it would be reasonable adjustment to allow compensation for a support person;

[T]he Applicant alleges that decisions under s 57 of the SRC Act were discriminatory as they required the Applicant to undergo medical examinations where the Discrimination Act required the Respondent to make reasonable adjustments by either not exercising the power or exercising the power in a different way; and

[T]he Applicant alleges that the decision to suspend the Applicant's compensation payments as a consequence of the Application [sic] refusing to undergo a medical examination was discriminatory and, by reason of the terms of the Discrimination Act, the power should not have been exercised or the Respondent should have been satisfied that the Applicant had a 'reasonable excuse'.[85]

(b) As such, the allegations give rise to operational inconsistency between the Discrimination Act and the SRC Act, as the Discrimination Act would deny or vary a power conferred by Commonwealth law.

(c) The Discrimination Act should be construed, as far as possible, so as not to apply to decisions made under the SRC Act to avoid such inconsistency.

(d) Alternatively, section 30(1)(a) of the Discrimination Act provides that the Act does not make unlawful anything done necessarily for the purposes of complying with a requirement of a Territory law. However, this depends on whether the SRC Act, a Commonwealth Act in force in the Territory, is a Territory law within the meaning of the section, which in turn requires consideration of the provisions of the Legislation Act 2001.[86]

158. As to the provision of services, EML submitted:

(a) EML did not provide any services to the applicant.

(b) Whether services are provided is a question of fact and a matter of characterisation: Rainsford v Victoria [2005] FCAFC 163 at [54].

(c) To constitute 'services', the relevant act must involve a helpful or beneficial activity - i.e. the activity itself must be helpful or beneficial, and not merely confer a benefit in the sense of being one of several potential outcomes: IW v City of Perth [1997] HCA 30; 191 CLR 1, 11 (Brennan CJ, McHugh J), 41-42 (Gummow J) (IW); State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [141], [156] (Whiteoak).

(d) It is necessary to precisely identify the person to whom a service is provided, which may change depending on the nature of the statutory function being exercised; Bickle v State of Victoria [2020] FCA 168 at [18], [19]; Robinson v Commissioner of Police [2012] FCA 770 at [166].

(e) To provide a 'service' to someone, it is necessary that the person can decide whether to accept or reject what is done or the outcome: Whiteoak at [158], [160].

(f) The exercise of broad discretionary powers in a quasi-judicial role, in a process involving the public interest, will not be the provision of a service, even where it confers a benefit on an individual: IW at 15, 18 (Brennan CJ, McHugh J).

(g) The existence of a statutory duty to exercise a power is a factor weighing against the exercise of the power falling within the definition of services: Secretary of the Department of Justice and Industrial [2003] TASSC 27, [54].

(h) There cannot be a finding of discrimination in relation to the provision of services unless the services have been identified with sufficient precision to relate to the facts of the case and the issues that arise for determination. The applicant's characterisation of services provided to her as the "administration/management of her workers compensation payments and the facilitation of her medical treatments" is so broad as to be meaningless.

(i) Any services EML provides are provided to the Territory in the discharge of its contractual obligations to the Territory, and are helpful or beneficial to the Territory only, rather than the applicant or any other member of her class.

(j) Outcomes are imposed, rather than made available to, persons in the class of the applicant.

(k) EML did no more than manage workers' compensation claims on behalf of the Territory and undertake activities inherent to the claims management function, including determining whether liability for treatment services should be accepted and whether IMEs were required.

(l) While it may be accepted that, in some cases, the performance of a statutory duty may amount to providing a 'service' to a particular individual, that is not the case here because EML was exercising the Territory's statutory powers under the SRC Act, which resulted in outcomes that were imposed on the applicant.

159. As to the absence of discrimination, EML submitted:

(a) The provision of a support person does not constitute 'medical treatment' for the purposes of the SRC Act. Consequently the refusal to pay for a support person did not constitute unfavourable treatment.

(b) Any unfavourable treatment that occurred because of the refusal to pay for Mr Purtle was a result of EML seeking to apply sections 4 and 16 of the SRC Act to determine whether Mr Purtle provided 'medical treatment' for the purposes of the SRC Act, which related to the fulfilment of EML's contractual obligations to the Territory and not the applicant's schizophrenia.

(c) Further the steps that EML took to assess liability for Mr Purtle's costs against sections 4 and 16 of the SRC Act were reasonable in the circumstances and could not constitute indirect discrimination.

(d) The applicant was required to attend the IME with Dr Reid and later, a second IME, because it was necessary to identify the appropriate treatment for her compensable condition. While this necessarily involved an assessment of any overlapping symptoms or treatment of the applicant's underlying condition of schizophrenia, the latter was not a real, genuine, and not insubstantial reason for the requirement that she attend the IME.

(e) The fact that attendance at the IME was distressing to the applicant did not give rise to unfavourable treatment because:

(i) attendance at the IME was a necessary condition of the applicant obtaining compensation;

(ii) on submitting a claim for compensation, objectively, the applicant could not reasonably expect to not have to submit to an IME to obtain compensation;

(iii) there was no evidence that this was not a condition imposed on other employees with workplace injuries who had made a claim for compensation or that the effect of being required to attend an IME was not similarly distressing to them;

(iv) viewed in the statutory context, the requirement to attend an IME by a medical practitioner nominated by EML was the making of the claim and the assessment of liability, not the applicant's protected attribute; and

(v) in that context, it was reasonable to require the applicant to attend the IME with Dr Reid and later, Dr Kar.

(f) EML had no choice but to suspend the applicant's compensation payments when she failed to attend the second IME. The suspension of payments was not unfavourable treatment because:z

(i) it was the applicant's own actions that gave rise to the suspension;

(ii) the applicant did not have a reasonable expectation that her payments would not be suspended if she refused to attend or obstructed an IME;

(iii) there was no evidence that this was not a consequence for every other employee with a claim for compensation who refused to attend an IME in similar circumstances;

(iv) viewed in the statutory context, the suspension of the applicant's compensation payments was because of EML's obligations under section 57(2) of the SRC Act and not because of the applicant's schizophrenia;

(v) in that context, it was reasonable for EML to suspend payments.

160. Discrimination Claim One concerns two separate determinations made by EML under section 16 of the SRC Act, which provides for payment of compensation for the cost of "medical treatment obtained in relation to the injury (being treatment that it was reasonable for the employee to obtain in the circumstances)".

(a) whether EML is a provider of 'services' to workers who have suffered a compensable workplace injury by managing and/or administering payment of their entitlement to reasonable medical expenses and by facilitating appropriate medical treatment on behalf of the Territory;

(b) whether EML treated the applicant unfavourably by refusing to pay for the cost of operational support recommended by the applicant's general practitioner and services provided by the applicant's mental health social worker, Mr Purtle;

(c) if so, whether the unfavourable treatment was because the applicant had schizophrenia, in the sense that the applicant's schizophrenia was a reason, even if not the dominant or substantial reason, for EML's decision to refuse to pay for those costs; and

(d) whether the facts as found constitute a refusal to provide those services to the applicant in breach of section 20(a) of the Discrimination Act.

162. Discrimination Claim Two relates to a decision by EML to exercise its statutory power under section 57(1) of the SRC Act to require the applicant to attend an IME by a medical practitioner nominated by EML on 10 December 2019 and a second IME with a different medical practitioner on 12 February 2020 and, following the applicant's refusal to attend the second IME, to impose the sanction provided by section 57(2) to suspend payment of the applicant's workers' compensation benefits.

(a) Whether EML is a provider of 'services' to workers who have suffered a compensable workplace injury by managing and/or administering payment of their entitlement to reasonable medical expenses and by facilitating appropriate medical treatment on behalf of the Territory.

(b) Whether EML treated the applicant unfavourably by requiring her to attend an IME with a neuropsychologist, Dr Reid.

(c) Whether EML treated the applicant unfavourably by requiring her to attend a second IME two months later with a psychiatrist, initially nominated as Dr Samuell, later replaced by Dr Kar.

(d) Whether EML treated the applicant unfavourably by suspending her worker's compensations payments until she agreed to attend the IME with Dr Kar.

(e) If so, whether the unfavourable treatment was because the applicant has schizophrenia in the sense that the applicant's schizophrenia was a reason, even if not the dominant or substantial reason, for EML's decision to require her to attend the IME.

(f) Whether the facts as found constitute discrimination in the terms or conditions on which, or the way in which, EML provided those services to the applicant in breach of section 20(b) and/or 20(c) of the Discrimination Act.

164. If I find that EML engaged in apparently unlawful discrimination, it will be necessary to consider whether, as EML contends:

(a) section 30(1)(a) of the Discrimination Act provides a defence;

(b) alternatively, whether the alleged unlawful acts were done under the authority of the SRC Act and therefore could not be unlawful for the purposes of the Discrimination Act; or

(c) if not, whether this gives rise to operational inconsistency between the Discrimination Act and the SRC Act, such that the provisions of the SRC Act should prevail.

165. Discrimination Claim One invites attention to EML's role where liability has been accepted under section 14 of the SRC Act in respect of an injury. Where an injured employee's claim has been accepted, the employee has a statutory right to compensation under section 16 of the Act for reasonable medical treatment relating to the injury. In exercising its statutory duties under section 16 (as distinct from section 14 which, as I discuss later, involves different considerations) EML is required to determine whether medical treatment is reasonable for the injured employee to obtain in relation to the injury, and to determine the amount that is appropriate to pay for such treatment. Pursuant to section 16(4), compensation may be paid by reimbursing the employee for the cost of the medical treatment or by paying the service provider directly.

166. The occasion for EML to exercise its statutory duty to determine whether medical treatment is reasonable for an employee to obtain in relation to their injury, arises only where EML has determined that it is liable to pay compensation for the injury under section 14 of the SRC Act. A determination of liability under section 14 is an administrative decision that is not made 'once-and-for-all' when the claim is first determined. As noted earlier in these reasons, an information sheet EML provided to claimants advised that a determination under section 16 means that compensation for medical treatment will be paid up to a certain date, after which further medical evidence may be required that "provides clear connection between your employment and the compensable condition".[87] The matter at issue is whether, considering the latest medical evidence, the claimant continues to suffer an 'injury' (within the meaning of the SRC Act) and, if so, whether the 'injury' continues to result in incapacity for work or impairment, which is the test for liability under section 14 of the Act.

167. Even where liability is accepted under section 14, an issue may arise under section 16 whether medical treatment is 'in relation to' the injury and whether the treatment is 'reasonable'. EML is liable to pay compensation for medical treatment only if it is both 'in relation to' the injury and 'reasonable'. The investigative and deliberative process involved in a determination in respect of these issues is quasi-judicial in nature. It is inappropriate to describe this as providing a service to an injured employee.

168. However, where liability to pay for medical treatment is not in issue, a determination under section 16 as to the appropriate amount to pay for such treatment and whether costs should be reimbursed or paid directly to the service provider is appropriately described as an operational decision, which is intended to benefit the injured employee by facilitating the employee's medical treatment and relieving them of the associated financial burden. I am satisfied that in making such determinations EML provides services by facilitating and paying for appropriate medical treatment in relation to an employee's workplace injury.

169. The issue here is whether EML discriminated against the applicant on the grounds of disability by refusing to provide her with those services at a time when EML had accepted liability for her claim and to pay for medical treatment - specifically, by refusing to pay for operational support recommended by the applicant's GP and for treatment provided by Mr Purtle, a mental health social worker, both of which the applicant claims fall within the definition of 'medical treatment' in section 4 of the SRC Act.

170. The evidence satisfies me that EML determined that the cost of operational support workers recommended by the applicant's GP was not covered under section 16 of the SRC Act because it did not come within the definition of 'medical treatment' in section 4 of the Act. The applicant has assumed that EML's decision to refuse payment was an unfavourable discretionary decision under section 16 of the SRC Act. This is incorrect. Section 16 of the SRC Act does not authorise EML to pay compensation for assistance or treatment that is not 'medical treatment'. Whether a particular form of assistance or treatment is 'medical treatment' within the meaning of the Act, is partly a question of statutory interpretation and partly a question of fact. Whether 'medical treatment' is reasonable for the employee to obtain in relation to the injury is a question of fact, requiring an evaluative judgment to be made considering all the known circumstances. Only a determination as to the amount that is appropriate to pay for such 'medical treatment' involves the exercise of discretion.

171. The applicant contends that EML's interpretation of the meaning of 'medical treatment' is wrong and therefore that her treatment was unfavourable. However, it is not this Tribunal's role to decide whether the cost of operational support recommended by the applicant's GP is 'medical treatment' within the meaning of section 4 of the SRC Act. It was open to the applicant to request a reconsideration of EML's determination and, if she was dissatisfied with the reconsideration decision, to appeal the decision to the AAT, which was the appropriate forum to determine that dispute. Thus, I am not satisfied that EML's refusal to pay for operational support was unfavourable treatment.

172. Even if EML's interpretation was shown to be wrong, it would not help the applicant's case. In that event she may be able to establish that the refusal amounted to unfavourable treatment, but she must also establish that EML's refusal to pay for operational support was 'because of' her disability - specifically, as she puts it, because EML treated her as a schizophrenic who just needed to take her medication. The evidence satisfies me that this was not a reason for EML's refusal. There is no evidence that EML considered the applicant did not need, or would not benefit from, operational support. Rather, EML refused to pay for operational support because it considered that operational support did not meet the definition of 'medical treatment', notwithstanding that such support was recommended by the applicant's GP, and therefore was not compensable under section 16. Neither the fact that the applicant's injury was identified as an aggravation of her existing condition, diagnosed as schizophrenia, nor the fact that the applicant's treating medical practitioners had recommended a treatment regime that included anti-psychotic medication, was a reason for EML's decision to refuse payment for operational support.

173. The same conclusion applies to EML's decision to refuse to pay for the cost of Mr Purtle, the mental health social worker. EML accepted that psychological treatment was appropriate and was compensable if provided by a registered psychologist. The evidence establishes that there were two reasons why EML refused to pay Mr Purtle's invoices. The first (and main) reason was because EML considered he was not a registered allied health practitioner (relevantly, a registered psychologist) which, as EML saw it, meant his treatment plan and invoices did not meet the definition of 'medical treatment' under the SRC Act. The second reason was that EML considered Mr Purtle's treatment plan was unsatisfactory in that it did not measure or demonstrate the effectiveness of his proposed treatment of the applicant. It is not part of this Tribunal's role to decide whether the criticism was justified.

174. The fact that the Territory later settled the applicant's appeal to the AAT by agreeing to pay for those costs is not evidence that EML's position was wrong. There can be many reasons for agreeing to settle a claim, including that it is commercially expedient. Nor is it evidence of discrimination on the grounds of disability. The settlement agreement was made without admissions. Even if it is assumed in the applicant's favour that EML was clearly wrong to refuse payment of Mr Purtle's invoices because of which the applicant was treated unfavourably - a finding that is not available on the evidence - the decision was made because of the earlier stated reasons and not the applicant's disability.

175. As causation is not established, Discrimination Claim One must fail.

176. The issue is whether EML discriminated against the applicant on the grounds of her disability in the terms on which EML provided services to the applicant, or in the way in which EML provided services to her - specifically, by requiring her to attend the IMEs with medical practitioners of its choice and by cutting off her compensation payments until she reversed her decision not to attend the second IME with the psychiatrist.

177. Discrimination Claim Two invites attention to EML's role where liability under section 14 and and section 16 of the SRC Act remains in dispute, as was the case here, notwithstanding a decision had been made earlier to accept liability for the applicant's claim.

178. The reconsideration decision made on 22 October 2019 to accept liability to pay compensation to the applicant in respect of her injury under section 14 of the SRC Act, was an administrative decision. The decision necessarily depended on the factual circumstances known to the EML Reconsideration Officer when the decision was made. The decision did not determine for all time the question whether the applicant's employment contributed, to a significant degree, to the applicant's injury. Nor did the decision determine the criteria against which EML should assess the progress of the applicant's recovery from injury, nor how long the applicant would remain entitled to compensation for medical treatment related to her injury. It was open for EML to continue its enquiries and obtain new medical evidence relevant to those issues and to make a fresh determination of liability under section 14 of the SRC Act considering such evidence.

179. In performing its statutory duties and functions under section 14 of the SRC Act, EML must enquire into and determine whether it is liable to pay compensation on behalf of the Territory for an injury to an employee which results in death, incapacity for work, or impairment. Among other things, EML must determine whether the employee's employment contributed to a significant degree to the injury. As I have said earlier, this is not a 'once-and-for-all' determination. As the injured employee undergoes treatment and as updated medical information becomes available, EML must further determine whether the employee continues to suffer an 'injury' (within the meaning of the SRC Act) and whether the 'injury' continues to result in incapacity for work or impairment. The evident statutory purpose served by section 57 of the SRC Act is to facilitate EML's ability to investigate and make determinations in relation to these matters.

180. A determination of liability under section 14 of the SRC Act involves an investigative and deliberative process that is quasi-judicial in nature. In doing so, EML provides services to the Territory - relevantly, by considering and making determinations in relation to workers' compensation claims against the Territory. Although from a claimant's point of view the process may result in a benefit to the claimant (if liability is accepted), the process itself does not confer a benefit beyond a claimant's statutory right to have their claim considered and determined in accordance with the statute. EML does not provide a service of accepting claims for compensation. Some claimants may have their claims accepted. Others may have their claim rejected. In my opinion, it would be incorrect to describe this as EML providing a service to one (successful) class of claimants, and refusing to provide a service to the other (unsuccessful) class of claimants.

181. I am satisfied that in performing its statutory duties and functions under section 14 of the SRC Act, EML does not provide 'services' to an injured employee.

182. I am also satisfied, as I have said earlier, that in performing its statutory duty under section 16 of the SRC Act to determine whether medical treatment is both 'in relation to' an injury and 'reasonable', EML does not provide services to an injured employee.

183. The evidence establishes that, from EML's perspective, whether the applicant's employment contributed to a significant degree to the applicant's accepted condition, or whether she suffered a relapse of her underlying psychiatric condition because she stopped taking anti-psychotic medication, remained a live issue. The reconsideration decision by which EML accepted liability for the applicant's injury did not resolve the concerns of the Case Manager and Team Manager. A limited desktop review of the medical evidence by Dr Murphy in early September 2019 provided support for their opinion. As I have explained earlier, the redetermination decision by which EML accepted liability for the applicant's injury was not a 'once-and-for-all' determination of the issue of liability. Having doubts about the correctness of an administrative decision does constitute discrimination.

184. I am satisfied that EML required the applicant to attend the IMEs because it held doubts whether the applicant's accepted condition was caused to a significant degree by her employment rather than by her stopping her medication, precipitating a relapse of her underlying condition of schizophrenia, and therefore whether the applicant had suffered an 'injury' for which EML was liable to pay compensation. EML was entitled to seek independent medical advice about this and to consider its current liability under section 14 of the SRC Act to pay compensation in light of that advice.

185. A further reason was because EML was concerned there was an apparent overlap between the applicant's accepted condition of 'generalised anxiety' and her underlying condition of schizophrenia, making it difficult to determine whether current medical treatment she was receiving related to her accepted condition, for which EML was liable to pay compensation, or to her underlying condition of schizophrenia, which was not compensable. Again, EML was entitled to seek independent medical advice about this and to consider its current liability under section 16 of the SRC Act to pay for the applicant's medical treatment in light of that advice.

186. The terms in which Dr Reid, Dr Samuell and Dr Karr were asked to undertake an assessment of the applicant satisfy me that EML's purpose in requiring the applicant to attend the IMEs was to enable EML to obtain independent medical advice on which it could base a current assessment of its liability to pay compensation to the applicant under sections 14 and 16 of the SRC Act, in circumstances where liability remained in dispute from EML's perspective.

188. First, the decision to exercise, and subsequently to enforce, EML's rights under section 57 was not unfavourable treatment of the applicant, notwithstanding that it caused her distress. An independent medical assessment was necessary to enable EML to determine whether it had a current liability to pay compensation to the applicant. Although the applicant said she was "only into the third month of my claim" and believed "there was no cause whatever to trigger any medical assessment, let alone a second one",[88] I am satisfied that EML had legitimate reasons for requiring the applicant to be independently assessed. The terms of section 57 make it clear that an assessment should be by a medical practitioner chosen by EML. The reasons for this are obvious. The applicant had no grounds to expect that she could choose, or that she should be consulted, about whom she should see.

189. Second, as the earlier analysis of why the applicant was required to attend the IMEs shows, it was not 'because of' her schizophrenia. The necessary element of causation is absent.

190. Third, the applicant's attendance at the IMEs was an integral part of the investigative and deliberative process involved in determining liability under sections 14 and 16, which I have described earlier as quasi-judicial in nature. In undertaking that process, EML was not providing services to the applicant. It was providing services to the Territory alone.

191. Discrimination Claim Two fails for these reasons.

192. In light of my earlier conclusions, it is unnecessary to consider the other issues EML raised by way of defence.

193. The appropriate order is that the application is dismissed.

[1] [2021] ACAT 22 at [26]- [33] per SM Hyman

[2] Applicant's document titled 'ACAT DT 53/2020 [applicant's name] vs EML' dated 6 January 2021, filed in the ACAT on 5 August 2021 (Applicant's Submissions), page 2

[3] Cooley v Australian National University [2007] ACTDT 2 [44]; See also Prezzi, Patricia Anne v the Discrimination Commissioner [1996] ACTAAT 132 at [22] (affirmed by the Federal Court in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]- [57])

[4] Kidman v Casino Canberra Ltd [2020] ACAT 50 at [22]

[5] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22] citing Complainant 201823 v Insurance Australia Group Ltd Trading as NRMA [2019] ACAT 64 at [6]- [7]. See also, Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22]

[6] Australian Capital Territory v Wang [2019] ACAT 65 at [185]

[7] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [22] and [24]

[8] [2001] FCA 379

[9] [2018] UKSC 65

[10] [2018] UKSC 65 at [12]

[11] [2018] UKSC 65 at [27]

[12] [2003] HCA 62

[13] [2003] HCA 62 at [234] - [236]

[14] [2003] HCA 62 at [13] (Gleeson CJ)

[15] [1997] HCA 30

[16] [2003] HCA 62 at [166] (McHugh and Kirby JJ)

[17] cited in [2003] HCA 62 at [142] (McHugh and Kirby JJ)

[18] [2009] NSWADTAP 20

[19] [2009] NSWADTAP 20 at [28]

[20] [2009] NSWADTAP 20 at [36]

[21] [2014] NSWCATAP 67

[22] [2014] NSWCATAP 67 at [128] - [131]

[23] [2020] NSWCATAP 179

[24] [2020] NSWCATAP 179 at [66]

[25] [2014] ACAT 41

[26] [2014] ACAT 41 at [90]

[27] see e.g. Ezekiel-Hart v Reis [2017] ACAT 3 at [26] (SM Beacroft); Keightly v ACT Ambulance Service [2019] ACAT 61 at [76] (SM Brennan); Complainant 201908 v Commissioner for Fair Trading [2020] ACAT 24 at 91 (SM Robinson); Abraham v Thomas [2020] ACAT 41 at [107] SM Mulligan); Kidman v Casino Canberra Ltd [2020] ACAT 50 at [49]- [50] (SM Lennard); Complainant 201931 v Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 9 at [114] (SM Hyman); Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 14 at [114] (PM Robinson); Phillips v Australian Capital Territory (As represented by Chief Minister, Treasury and Economic Development Directorate) [2021] ACAT 22 at [94] (SM Hyman)

[28] LexisNexis Butterworths, 5th ed., 2013 at pp 318-319 (omitting citations)

[29] ibid - see the cases cited in footnotes 87 at page 319

[30] [1997] HCA 30; 191 CLR 1 at [12]

[32] see sections 60(1), 63 of the SRC Act

[33] Schedule 1 - Statement of Requirements, clause 1.1(a) (Annexure HJ-1, page 102)

[34] Schedule 1 - Statement of Requirements, clause 2.1 (Annexure HJ-1, page 102)

[36] Witness statement of Heidi James dated 31 August 2021, paragraph 60

[55] Applicant's submissions dated 6 January 2021 (filed on 5 August 2021), paragraph 3

[56] Witness statement of Heidi James dated 31 August 2021, paragraph 96

[72] Applicant's document titled 'ACAT DT 53/2020 [applicant's name] EML Timeline' (Applicant's Timeline'), 3rd un-numbered page

[73] Applicant's Timeline, 3rd un-numbered page

[79] Andreopoulos v University of Canberra [2020] ACAT 95 at [16]

[81] Applicant's Submissions, pages 7-8

[82] Applicant's Timeline, 4th un-numbered page

[83] Applicant's Timeline, 5th un-numbered page

[84] Applicant's Submissions (filed 5 August 2021), page 6

[86] Legislation Act 2001, sections 5, 6, 7, 144 and Dictionary, Part 1