CZH v University of Technology, Sydney - [2017] NSWCATAD 82 - NSWCATAD 2016 case summary — Zoe

NSWNSWCATAD

CZH v University of Technology, Sydney

[2017] NSWCATAD 82

NCAT Administrative and Equal Opportunity|2016-12-06

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2016-12-06

Catchwords

(2003) 217 CLR 92 Seltsam Pty Ltd v McGuinness [2000] NSWCA 29

Source

Original judgment source is linked above.

Catchwords

(2003) 217 CLR 92 Seltsam Pty Ltd v McGuinness [2000] NSWCA 29

Judgment (31 paragraphs)

[1]

The Application

CZH ("the Applicant") brought proceedings for leave pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act") arising out of the Acting President declining her complaint to the Anti-Discrimination Board ("ADB").
The Applicant's complaint was of disability discrimination under sections 49A, 49B, 49C,49L and 53 of the Act.
The Acting President of the ADB declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a). The issue in this case is whether it is fair and just for the Tribunal to give CZH permission (or "leave") for her complaint to go ahead: Anti-Discrimination Act, s 96. CZH bears the onus of persuading the Tribunal that leave should be granted.
The Tribunal conducted a hearing of the application for leave on 6 December 2016. CZH was represented by Ms Natalie Ross, solicitor, of Kingsford Legal Centre. The Respondent was represented by Ms Kellie Edwards of Counsel.
A timetable was set at the hearing for filing of further written submissions by the parties.
The Tribunal is satisfied that it is fair and just for CZH to be given leave to proceed with her complaint. The Tribunal has determined to grant leave for the disability discrimination in education complaint to proceed against the Respondent for the following reasons.

[2]

[3]

Summary of the Complaint

CZH made a complaint to the Acting President of the ADB on 11 April 2016 of disability discrimination in education against University of Technology Sydney ("UTS").
CZH's complaint was that she had commenced her course in midwifery at UTS in March 2009. In February 2015 CZH became unwell, suffering from depression. CZH has a long history of depression and it is usually well managed with medication. On 5 March 2015, CZH was admitted to the psychiatric unit at Sutherland hospital as an involuntary patient after a suicide attempt, following an episode of heavy drinking. She was assessed as a mentally ill person under the NSW Mental Health Act 2007 suffering from a depressive illness. She was discharged from the hospital on 14 March 2015. CZH has had no previous voluntary or involuntary admissions to a psychiatric unit and she does not drink heavily on a regular basis.
CZH had been due to return to clinical studies on 9 March 2015 at the Royal Hospital for Women in Paddington, to complete her clinical hours. CZH had advised both UTS (Ms Rosemarie Hogan) and the Royal Hospital for Women (Ms Annette Wright) of her inability to attend clinical placement shifts while she was in hospital. Following her discharge from hospital, CZH lodged a special consideration request with UTS on 31 March 2015, relating to her missed clinical placement days. This request took six weeks to process. CZH says this was due to an error on the part of UTS.
On 9 April 2015 Sutherland hospital notified the Nursing and Midwifery Council of New South Wales (NMC) of CZH's admission as an involuntary patient under the Mental Health Act 2007.
Towards the end of May, CZH received a letter from the NMC (dated 22 May 2015) informing her that she would be subject to an investigation as a result of the notification by Sutherland hospital. The NMC advised CZH that the investigation did not prevent her from undertaking clinical placements. Although there was no obligation on her to do so, CZH advised UTS of the NMC investigation.
UTS gave CZH a form for her medical practitioner to complete. The form was headed "Clinical skills relating to sustainable performance domains relating to mental health concerns - assessment of [CZH]". The form required the assessor to comment on CZH's skills and responses in dealing with patients who have a mental illness, and in her capacity to maintain professional boundaries, and also comment on more general skills required on placement. CZH's general practitioner of 20 years, Dr Felicity Minogue, advised UTS that she was unable to complete the assessment form as she had never observed CZH on clinical placement or working with patients. However, Dr Minogue did certify on 18 May 2015, that CZH was fit and well and able to safely resume clinical placements in midwifery. Dr Minogue also wrote on the assessment form that CZH's medication would not affect her ability to undertake clinical placements, that she was not a danger to herself or others. Dr Minogue confirmed that CZH was on medication and under the regular care of a psychiatrist, as well as Dr Minogue.
Despite the medical clearance from Dr Minogue dated 18 May 2015, on 29 May 2015, CZH received an email from Ms Kelly-Anne Eyre at UTS, informing her of the Faculty's decision that she was not permitted to undertake any clinical components of her course until the University received the outcome of the NMC investigation. Apart from being unable to do the final clinical placement for the course, this decision also meant that CZH was unable to complete another assessment task - a portfolio of 30 patient case studies that included attending 15 births.
CZH continued to attend classes and cooperated fully with the NMC investigation, including attending a psychiatrist nominated by the NMC. The NMC completed its investigation in early November 2015. CZH was advised by letter from the NMC, dated 4 November 2015, that conditions had been placed on her practice. The conditions were that she had to advise the NMC of who her clinical supervisors would be, and authorise the clinical supervisors to provide a written report to the NMC at three monthly intervals, and report any unsafe practices. CZH also had to maintain a therapeutic relationship with her treating health professionals, provide their contact details to the NMC, and authorise them to notify the NMC if she failed to attend appointments or the health professional had any concerns about CZH's fitness to practice.
On 4 December 2015 CZH met with the director of clinical placements and the course coordinator at UTS, to discuss the conditions on her practice, completion of the clinical component of the course and any reasonable adjustment she needed. However, by this stage of the year, it was too late to arrange and start a clinical placement. In 2016, CZH found it difficult to secure a placement because of the extra burden the conditions placed on the clinical supervisor at the hospital, but she secured a placement at Canterbury hospital.
CZH claimed that she had been subject to disability discrimination by UTS. She was treated less favourably than other midwifery students, on the ground of her mental illness, in that she was prevented from undertaking her final clinical placement and completing her portfolio. This was despite providing a certificate from her long-term general practitioner, that she was fit for clinical work and did not pose a risk to herself or others, and despite advice from the NMC that she was not restricted in any way during its investigation.
CZH claimed that she had suffered considerable loss as a result of the discrimination by UTS. She was unable to complete her course in 2015, and as a result, she was unable to apply for a graduate position in 2016. This has extended the already lengthy period that she has had a reduced income because of her study commitments.

[4]

Respondent's response to the Anti-Discrimination Board

In its response to the ADB of 17 June 2016, the Respondent noted that throughout the Complainant's enrolment at UTS, UTS had endeavoured to accommodate the Complainant, which included granting all her requests for special consideration, part-time study, leave of absence and extensions. UTS also provided her with financial assistance and an equity scholarship amounting to a total of $6700. Further, UTS funded a study trip to Bali for the Complainant in January 2016.
It is the usual practice of UTS to put a student's clinical placement on hold until the outcome of an NMC investigation is known, unless UTS can ensure that there is no risk to health and safety, irrespective of whether the student has a disability. It adopts this practice because of its paramount duty to ensure public safety and the safety of its students while in a hospital environment, particularly where they are involved in the acute assessment of women and their babies in the pre-and post-birth stages.
The NMC's decision to undertake such an investigation is a serious one and UTS is in no position to query its need or to pre-empt its outcome. Further, such investigations are confidential and independent and may consider a whole range of circumstances to which UTS is not privy, including such issues as health and conduct. Alcohol consumption, for example, appeared to be part of the NMC investigation and, as a consequence of the investigation, control measures in relation to alcohol were required by the NMC for future clinical placements. UTS has no control over the NMC's investigation process or how long its investigation may take.
UTS sought to accommodate the Complainant by allowing her to take on extra subjects to minimise disruption of her studies. In particular, UTS overlooked 'Midwifery practice 5: 'Working with Women', as a pre-requisite subject for midwifery practice 6: 'Transitions to Being a Midwife' and allowed the Complainant to finalise the theory components of midwifery practice while waiting for the outcome of the NMC investigation. When the investigation was completed, UTS was advised on 10 November 2015, by way of a letter from the NMC, that there were a number of conditions placed upon the Complainant.
Upon the completion of the investigation, UTS pursued clinical placements for the Complainant and was successful in placing her at Canterbury Hospital, which has provided excellent feedback on her progress.
The Respondent denied discriminating against the Complainant on the grounds of having a disability.

[9]

Comparator

In relation to a comparator under the Act, CZH submitted that an appropriate comparator could be another midwifery student, subject to NMC investigation, in circumstances that did not arise in a clinical situation.
The comparator may be subject to NMC investigation because there had been an incident in a clinical situation. Alternatively, it might have been a student who had not been involved in a clinical problem, as a reason basing an NMC investigation.
CZH submitted that this difficulty in establishing the appropriate comparator, of itself, makes it fair and just for leave to be given for the case to proceed. If there were no actual comparator, she would have to establish that disability was the reason that she was prevented from undertaking her clinical placement.
The form that had been provided to her for an assessment from her treating practitioner was probably used in a different context - that is in dealing with requests for reasonable adjustment. Here it was being used as a risk assessment tool. This would in itself be evidence that UTS staff had turned their mind to the issue of CZH's presumed or real disability. While the general practitioner did not complete the part of the form which involved an observation of CZH in a clinical setting, Dr Minogue had filled in part B and said that CZH was well and fit to return to clinical placement
The conversation between Ms Eyre of UTS and Ms Shanley of the NMC referred to in Ms Shanley's file note of 28 May 2015, suggested that CZH's psychiatric condition and alcohol use were the reasons for her suspension from clinical practice. The issues of drinking alcohol and acute depression were all raised in the second paragraph of page 15 of the Acting President's report.
The Applicant said she was not raising reasonable adjustment as part of her complaint. The form given to the Applicant for completion by her general practitioner raised issues of reasonable adjustment.
The Applicant denied that the process of the Health Practitioner Regulation National Law (NSW) was relevant to this matter. The notification had been made. The NMC had advised UTS that there was no restriction on the Applicant undertaking her clinical placement. The NMC did not impose conditions during its investigation.
The Applicant noted that the matters raised by the Respondent under the Health Practitioner Regulation National Law (NSW) were in relation to registered practitioners - not in relation to students.
The Applicant referred to the content of the email dated 28 May 2015 from Ms Annette Wright, nurse manager clinical practice and professional development at Royal Hospital for Women and the recipient of the email Ms Kelly Eyre, director of clinical practice at the Faculty of Health at UTS. The Applicant had not previously been aware of the email. The email refers to an email that Ms Wright says she received from Ms Eyre on 27 May 2015, advising of the mandatory notification about CZH to the NMC. The email states: "It would appear that her admission was more signification (sic) than I was aware."
Ms Wright tells Ms Eyre that she had consulted colleagues about the mandatory notification and that a decision had been made that "All clinical placement at the RHW current and in the near future for [CZH] be revoked."
The Applicant submitted that midwifery students at UTS undertook clinical placements at a number of different hospitals. Even after completion of the NMC enquiry in November 2015 and the placing of conditions on her practice, the Royal Hospital for Women was still unwilling to accept CZH on placement. CZH was actively assisted by UTS to obtain placement at another hospital. In the ordinary course of events, if a student were not accepted for placement at one hospital, as happened in relation to the RHW, UTS would assist that student to find a placement at another hospital.

[10]

Causation

In relation to causation, the Applicant referred to the matters of Hayne v YMCA NSW [2016] NSWCATAD 14 at [17] which refers to the matter of Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. In those matters dealing with causation in direct discrimination matters, the issue is whether the protected reason (here disability) is at least one of the 'real', 'genuine' or 'true' reasons for the treatment. As with the vast majority of complaints of discrimination, a causal link between the protected basis of discrimination and the alleged treatment would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuinness [2000] NSWCA 29; (2000) 49 NSWLR 262. The implications of these matters were that while the RHW refusal to allow CZH to undertake clinical placements during the NMC enquiry may have been one of the reasons that UTS did not permit the Applicant to undertake a clinical placement, another one of the 'real', 'genuine' or 'true' reasons for the Respondent's decision was her past disability of a severe acute depressive episode and presumed disability of alcoholism or alcohol dependence.
An inference can be drawn about this causal link between CZH's past and presumed disabilities and the Respondent's decision based on the facts of: 1. the form provided to CZH to assess her performance relating to a mental health concern; 2. the file note of the conversation between Ms Shanley and Ms Eyre of 28 May 2015 which raises issues of mental health and alcoholism; and 3. Ms Eyre's email to Ms Wright at RHW on 27 May 2015 which states "It would appear that her admission to hospital was more signification (sic) than I was aware of."
In the matter of Deerubbin Local Aboriginal Land Council v Hunter [2012] NSW ADTAP 5, the Appeal Panel noted that section 4A of the Act provides that disability only needs to be one of the reasons for the treatment, whether it is the dominant or a substantial reason for the treatment. There was more than sufficient evidence to support an inference that at least one of the reasons the Respondent had refused to allow CZH to undertake clinical placements during the NMC enquiry was its concerns about the severe acute depressive episode she had experienced and its concerns about her presumed alcoholism or alcohol dependence, even if that was not the dominant or substantial reason is provided by section 4A.
It was fair and just to allow the complaint to proceed because it was necessary to establish what the relevant disability was - that is, did it include alcohol use as well as a psychiatric disability and to identify the appropriate comparator as required under the Act - section 49 B(1)(a).

[12]

Respondent's submissions

The Respondent submitted the Tribunal was bound by what was before the Acting President. The Applicant could not now rely on different disabilities to those that were considered by the Acting President. This could only occur if section 103 allowed the Applicant to amend the complaint. The Acting President's report made it clear that the only disability relied upon was that of CZH's diagnosed depression. Alcoholism could not now be relied upon as a disability in relation to seeking leave.
In any event, the Respondent submitted that heavy drinking was not a disability.
The onus was on the Applicant to make out the basis of her complaint. The Applicant had failed to establish an appropriate comparator. It was not now fair and just for the Applicant to proceed with the complaint
Section 140 of the Health Practitioner Regulation National Law Act defined notifiable conduct as: 1. practising while intoxicated; 2. sexual misconduct; 3. impairment; or 4. significant departure from accepted standards.
The Respondent argued that if any of these matters had arisen with any student they would have been treated in the same way as a student with a disability or impairment would have been treated.
Further it appeared that the Applicant was importing a test from the Commonwealth Disability Discrimination Act 1992 which was not appropriate under the NSW ADA. The Respondent referred to the principles from the matter of Purvis (Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92). The Applicant should not be importing a test for reasonable accommodation or reasonable adjustment.
Further, the Applicant's submissions in relation to the Respondent's request that the Applicant complete the form were incorrect. The form was related to the health and safety of patients. Any student would have been treated in the same way, regardless of the circumstances.
The Applicant had not made out a case under the provisions of section 49B. The Applicant had not set out how the test had been met. Further the Applicant had not set out how the provision of the relevant form to the Applicant fell within section 49B. As a result, the Respondent was at a disadvantage in meeting this aspect of the complaint, because it had not been clarified how the submission of the form fell within section 49B
The Respondent submitted that the approach in considering leave applications was to take the Applicant's factual claim at its highest. The Respondent did not concede that the Respondent had imposed a detriment on the Applicant.
The Respondent noted that there was a mandatory notification provision under section 140 of the Health Practitioner Regulation National Law (NSW) imposed upon employers, education providers, and, in this instance, Sutherland hospital. It requires that a health and safety assessment be undertaken and that the NMC be notified.
What had occurred in this matter was provided for under division 4 of the Health Practitioner Regulation National Law (NSW). Notification must be undertaken expeditiously and the public should not be exposed to risk. The Respondent was not the body to investigate. It was the NMC. This matter was concerned with the safety of the public - not the Applicant's disability.

[17]

Drawing of Inferences

The Respondent referred to the matter of Dutt - see Dutt v Central Coast Area Health Service [2002] NSWADT 133. This concerned the drawing of a causal link between treatment and the protected ground (here disability). It was only when there was no direct evidence that an Applicant could rely on inference. The Respondent also referred to a series of authorities in relation to the drawing of inferences. Most significantly, an inference cannot be relied upon where more probable and innocent explanations are available on the evidence. The Respondent noted that the case law demonstrates that inferences cannot take the place of positive evidence to the contrary. The Applicant was unable to prove less favourable treatment by reference to other training students in same or similar circumstances. The Respondent's evidence was clear. The Applicant's disability was not a factor, it was concerned for the health and safety of patients by reference to its obligations under the Health Practitioner Regulation National Law (NSW).
The legislative framework takes power away from the Respondent for deciding whether and on what terms the Applicant is fit to have contact with patients as a trainee midwife. The NMC was the only body with power to make such decisions and its decisions were binding on the Respondent. The Respondent's decision to disallow the Applicant to continue her placement until after the NMC had made its determination was by reference to that framework and not the disability of the Applicant. The Respondent submitted that the Applicant's doctor was only able to determine that a continued placement would not harm the Applicant. She needed to provide evidence that she would not cause a risk to the health and safety of patients.
Section 140 of the Health Practitioner Regulation National Law (NSW) sets out many factors unrelated to disability that could result in the same treatment as that experienced by the Applicant, including intoxication, sexual misconduct in connection with practice and departing from accepted professional standards.
The Applicant had not raised issues of alcoholism as a presumed disability and should not be allowed now to introduce this. Regardless of this, the use of alcohol raised issues about the health and safety of patients. The Respondent's actions in taking the matter into account was consistent with its statutory obligations. This was justified by the subsequent imposition of conditions by the NMC for testing for alcohol abuse.

[29]

Acting President's Reasons for Declining the Complaint

The Acting President considered that the complaint was lacking in substance. She also noted that the Respondent's decision was based on its paramount duty to public safety and that the Respondent applies the policy to all students. The Acting President noted that the NMC did not require the Respondent to prohibit or restrict the Complainant attending clinical placements while it conducted its investigation. She also commented that the Respondent's argument that it has a paramount duty to public safety is not without merit. At the end of the investigation, the NMC did place conditions on the Complainant's registration for the protection of the public.
The Tribunal respectfully agrees that these considerations would be significant in an ultimate determination of whether the complaint should succeed.
The Tribunal returns to the principles set out in Ekermawi for determining whether leave should be granted in which Schmidt J: (1) emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; (2) found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the Acting President of the Anti-Discrimination Board may decline a complaint; (3) concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and (4) noted that where it is apparent that the complaint lacks substance, leave may be refused, if that is what justice dictates.
The Tribunal should proceed cautiously by reading the Complainant's case at its highest. In this respect, the parties do not differ significantly in relation to the factual circumstances alleged. The Complainant has put forward a case addressing the elements of a disability discrimination complaint. Ultimately it is for the Tribunal to determine whether these factual circumstances meet the requirements of the legislation.
The Tribunal must be satisfied that it is fair and just in all the circumstances for CZH's complaint to proceed. There is some complexity in relation to characterisation of CZH's present, past and presumed disabilities. It is also necessary to identify the appropriate comparator if the complaint is to be made out. These are issues however that should be determined by the Tribunal at hearing. In the circumstances, the Tribunal is satisfied that it is fair and just for CZH's complaint against the Respondent of disability discrimination in education to proceed.

CZH v University of Technology, Sydney

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