Victorian Civil and Administrative Tribunal|2007-08-16

The application under s109 of the Equal Opportunity Act 1995 is dismissed.
Mr Hilton's costs of and incidental to that application are reserved. Application may be made for those costs on reasonable notice to Bayside Health and the Tribunal.

I have dismissed the application to strike out the complaint. The complaint will now proceed to conciliation in the Victorian Equal Opportunity and Human Rights Commission (the Commission).

I have before me the complaint and written and oral submissions from the parties.
Mr Hilton and his partner have lived as a couple in a domestic, same sex relationship. In late March 2006, Mr Hilton's partner (the patient) was admitted to the Hospital for a bone marrow transplant. He was in intensive care from early April 2006 to 24 April 2006. He died on 24 April 2006.
For the purposes of this application, the parties accept that the Hospital did the following things in relation to Mr Hilton during the period of the patient's hospitalisation -

It permitted his participation in consultation with hospital staff as part of the patient's care and treatment. 2. It permitted his additional involvement in the patient's care.

It provided a contact plan to ensure appropriate support was available to the patient. The plan gave contact details for various people which could be used by hospital staff. These included Mr Hilton and the patient's mother.

The Hospital facilitated Mr Hilton's daily visits to the patient. 2. The Hospital provided information to Mr Hilton both in response to his enquiries and otherwise. 3. The Hospital provided support to Mr Hilton through its professional workers, including social workers and psychologists. It also provided support of this kind to the patient's mother. 4. The Hospital facilitated discussions between Mr Hilton, the patient's mother and hospital staff. 5. The Hospital supplied Mr Hilton ad hoc accommodation as part of the patient's support plan.
The complaint focuses on what it says were the Hospital's failures to provide Mr Hilton with information and communication, and to involve him in decision-making concerning the patient's treatment and care. The complaint alleges that the patient had made a written nomination of Mr Hilton (and his parents) as his next-of-kin, but that the Hospital denied or ignored that nomination and treated him as a person with no right to be involved in the patient's care or treatment. In dealing with this strike-out application, I take the complainant's case at its highest.

It was submitted for the Hospital that what it did is incapable of constituting the provision of services to Mr Hilton, within the meaning of the EO Act. The Hospital provided treatment and care to the patient, and the things I have listed in paragraph 10 (a) to (h) above were aimed at and incidental to the provision of this treatment and care. They were provided to the patient and not to Mr Hilton. Only the patient, and not Mr Hilton, could complain about their inadequacy.
A contrary submission was made on behalf of Mr Hilton. According to that submission, the things that I have listed in paragraphs (a) to (h) were services provided to Mr Hilton within the meaning of the EO Act, irrespective of whether they might also be services to the patient.

In my view, the claims in the complaint are not incapable of constituting the provision of services to Mr Hilton by the Hospital within the meaning of the EO Act. I explain why.
The starting point must be how the EO Act defines 'services'. Section 4(1) defines 'services' in this way. In reproducing the definition, I have omitted the exclusion at the end of it.

services includes, without limiting the generality of the word -

(a) access to and use of any place that members of the public are permitted to enter;

(b) banking services, the provision of loans or finance, financial accommodation, credit guarantees and insurance;

(d) services connected with transportation or travel;

(e) services of any profession, trade or business, including those of an employment agent;

(f) services provided by a government department, public authority, State owned enterprise or municipal council -

(1) A person must not discriminate against another person -

(a) by refusing to provide goods or services to the other person;

(b) in the terms on which goods or services are provided to the other person;

(c) by subjecting the other person to any other detriment in connection with the provision of goods or services to him or her.

It is clear from s42 that it prohibits discrimination by a service provider against a service recipient, or against a person who seeks the provision of a service but is refused it. The definition of 'services' in s4 is inclusive and not exhaustive. Even from the inclusions, one can see that the definition is extremely broad. It covers a diverse range of things provided by a diverse range of individuals and bodies. Putting the inclusions to one side, 'services' has its ordinary dictionary meaning and covers any act of helpful activity[2]. But not every benefit which one person derives from the act of another constitutes a 'service'. Some benefits may be derived from the exercise, for example, of a judicial or quasi-judicial discretion, or from something done by a body acting as a legislator.
Services can be tangible or intangible, voluntary or provided for payment. They can be provided to more than one person[3]. The fact that they may be regulated by statute does not deprive them of the character of services.
Are the things I have listed in paragraphs (a) to (h) services provided by the Hospital to Mr Hilton within the meaning of the EO Act? The facilitation of daily visits (which I have listed under paragraph (d)) is clearly a service provided to him by the Hospital. It is expressly included in the definition of 'services' under paragraph (a) of that definition in s4(1) of the EO Act.
Support provided by the Hospital's social workers and psychologists to Mr Hilton (which I have listed in paragraph (f)) and ad hoc accommodation provided by it to him (which I have listed in paragraph (h)) are also services within the dictionary meaning of that term. They are provided directly to Mr Hilton to assist him. It is true that accommodation is also dealt with specifically in ss49 and 50 of the EO Act. But this does not mean that accommodation cannot also be a service within the meaning of that Act. The situation is similar to that which existed concerning education under the predecessor to the current EO Act - the Equal Opportunity Act 1984. That Act contained specific provisions concerning education, but it had also been held that education constituted a service within the meaning of that Act[4].
The other services in my list can be broadly described as the provision of information by the Hospital to Mr Hilton, communication by the Hospital with Mr Hilton, and involvement of Mr Hilton by the Hospital in decision-making concerning the patient's treatment and care. This issue is more complex. Mr Hilton claims that the patient nominated him as one of his next-of-kin. Mr Hilton is not in the position of a mere stranger or passing acquaintance of the patient. As the patient's domestic partner (within the meaning of the EO Act), and one of his nominated next-of-kin, and in the absence of some other substitute decision-maker recognised by law (such as an appointed guardian or an agent with an Enduring Power of Attorney (Medical Treatment) under the Medical Treatment Act 1988), Mr Hilton might, as a person responsible under the Guardianship and Administration Act 1986, have power to make decisions about the patient's medical treatment where the patient was too ill to be capable of making those decisions[5]. In these circumstances, information provided to Mr Hilton by the Hospital and communication between Mr Hilton and the Hospital is not simply incidental to the primary care and treatment of the patient, but is done to facilitate actual or prospective decision-making by Mr Hilton concerning the patient. In these circumstances, it is my view that the information and communication, and the involvement in decision-making, are provided directly to Mr Hilton as an actual or potential decision-maker, although they will inform decisions that will relate to the patient.
I do not consider that this is to give a strained or unnatural meaning to 'services' in the Act. Although the Act and the definition of 'services' is limited in scope in various ways, the definition is still very broad.
For these reasons, the complaint cannot be said to be so clearly hopeless that it is misconceived. It should not be struck out.

I make some final comments. First, my decision is confined to the very specific circumstances of this case. I do not mean that every hospital provides services to every family member of every patient, however remote the relationship of the family member to the patient might be. Nor do I mean that a hospital must seek to provide information and to communicate with every member of a patient's family, irrespective of whether that family member wishes to be involved in the patient's care or treatment.
Second, this strike-out application relates only to the question of whether or not the Hospital provided services to the Complainant within the meaning of the EO Act. I do not here consider any other aspect of the complaint.
The complaint can now proceed to conciliation in the Commission.

[1] See Rabel v State Electricity Commission [1998] 1 VR 102; Norman v Australian Red Cross Society [1998] 14 VAR 243

[2] IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1

[3] Falun Dafa Association of Victoria Inc v Melbourne City Council [2003] VCAT 1955

[4] Sinnappan v State of Victoria [1995] VicRp 27; [1995] 1 VR 421

Bayside Health v Hilton (Anti Discrimination) [2007] VCAT 1483 (16 August 2007)

Bayside Health v Hilton

At a glance

Court

Decision date

Source

Judgment (27 paragraphs)

Parties

Cases Cited (2)

Bayside Health v Hilton (Anti Discrimination) [2007] VCAT 1483 (16 August 2007)