Dezfouli v Health Care Complaints Commission

Determination of whether leave should be granted

1. In a notice of hearing dated 22 June 2018, the parties were advised that the matter had been listed for a case conference on 1 August 2018. At that conference, at the request of both parties, I heard the issue of whether leave should be granted on that day. At my invitation, they provided written submissions after the conference.

Background to the ADB complaint

1. In February 2017, Mr Dezfouli received treatment at the Forensic Hospital for in-grown toenails from a visiting podiatrist. Apparently, the podiatrist told Mr Dezfouli that he required regular podiatry treatment. For reasons unclear, the podiatrist did not return to the Forensic Hospital for a clinic scheduled in April 2017. Mr Dezfouli made a complaint to the Commission, the effect of which was that Justice Health had failed to provide him with necessary medical treatment (JH complaint).
2. In a letter in response to the JH complaint, the Commission notified Mr Dezfouli that it had referred his complaint for "local resolution" (the original decision). According to Mr Dezfouli, as directed by the Commission, he approached a Nurse Unit Manager at the Forensic Hospital, who said his request for treatment could not be accommodated and that he must wait until the podiatrist's next visit to the Hospital.
3. On 2 October 2017, Mr Dezfouli wrote to the Commission and requested that it review its decision to refer the JH complaint for internal resolution.
4. Mr Dezfouli was eventually seen by a podiatrist in late November 2017. On his account, the podiatrist told him he needed monthly treatment to manage the pain caused by his toenails. Apparently, JH has advised Mr Dezfouli that monthly visits will not be arranged.
5. On 13 December 2017, an officer of the Commission advised Mr Dezfouli that no further action would be taken in respect of the JH complaint. Mr Dezfouli states that the officer said that the JH complaint would not be investigated because he "complained too much".
6. In a letter to the Board in response to the ADB complaint dated 9 February 2018, Health Care Complaints Commissioner, Ms Sue Dawson, (the Commissioner) wrote that the reason the Commission had decided to take no further action following receipt of Mr Dezfouli's review request was because Mr Dezfouli had failed to provide any new information which might have caused the Commission to alter the original decision. Ms Dawson wrote that the Commission does not have power to instruct Justice Health to provide an inmate with a particular service. She wrote that the only way to facilitate access to services within Justice Health is to make the request known to the relevant Nurse Unit Manager for "direct attention".
7. In a letter (which pre-dated the JH complaint), dated 27 January 2017 in response to an earlier complaint made by Mr Dezfouli, the Commission advised Mr Dezfouli that his complaint had been referred for "local resolution". The Commission wrote : Due to the number of complaints received from you, the Commission will now review your future correspondence. The Commission may only assess the matter if new and primarily clinical issues are raised. Otherwise the correspondence will be placed on file and no further action taken.

Statutory framework and principles governing the grant of leave

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is lacking in substance and/or that no part of the conduct complained of could amount to a contravention of the Act, he or she may decline the complaint, in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii) of the Act. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Statutory framework: discrimination in services on the ground of disability

1. Section 49M of the Act makes it unlawful for a person to discriminate against another person on the grounds of disability: 49M PROVISION OF GOODS AND SERVICES (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services.
2. Disability is broadly defined by the Act and includes "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour" that a person has or is thought to have: s 49A and paragraph (e) of the definition of disability in s 4 of the Act.
3. Section 49B of the Act explains what constitutes discrimination on the ground of disability : (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.
4. If an act is done for two or more reasons and one of the reasons consists of unlawful discrimination under the Act (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: s 4A of the Act.

The elements necessary to establish the ADB complaint

1. In determining whether leave should be given for the ADB complaint to proceed, it is useful to consider the elements necessary to establish that complaint. They are: 1. That the Commission refused to provide Mr Dezfouli with a service or discriminated against him in the terms on which it provided him with that service. 2. That the Commission treated Mr Dezfouli less favourably than it treated, or would have treated, a person without his disability, or the disability he is thought to have, or has had in the past, in the same circumstances, or in circumstances which were not materially different (less favourable treatment). 3. That one of the reasons for any less favourable treatment was Mr Dezfouli's disability, a characteristic that generally appertains to, or is generally imputed to, persons with Mr Dezfouli's disability (causation).
2. I have assumed for the purpose of determining whether leave should be granted that the ADB complaint cannot be cast as one of "indirect discrimination": s 49B(1)(b) of the Act.

What was the service claimed to have been refused or provided on discriminatory terms?

1. The determination of whether the Commission refused to provide Mr Dezfouli with a service or provided him with a service on discriminatory terms requires the relevant service to be identified with reasonable precision: Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 at 404; Commissioner of Police v Mohamed [2009] NSWCA 432 at [34].
2. The Commission submits that because Mr Dezfouli has not clearly identified the services he alleges that he was refused or provided on discriminatory terms, I should refuse to exercise the power to grant leave for the ADB complaint to proceed. In the initiating letter of complaint to the Board and the material provided in support, Mr Dezfouli traversed his long and at times difficult history with the Commission. He expressed the matters about which he complains at a high level of generality. In addition, he failed to identify the provisions of the Act which he alleges that the Commission contravened. While this makes difficult the task of determining whether the power to grant leave for the Complaint to be exercised, it would be inappropriate, as the Commission urges, to refuse to grant leave on that basis alone. Due allowance must be made for the fact Mr Dezfouli is self-represented and, being a forensic patient, has limited access to resources and assistance. In addition, the refusal of leave on the basis advanced by the Commission sits uncomfortably with the statutory requirement that I act according to the substantial merits of the case without regard to technicalities or legal forms: s 38(4) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
3. Accordingly, before deciding to grant or refuse leave, I will first consider all of the material provided by the parties together with the statutory scheme governing complaints made to the Commission, and then determine whether the matters about which Mr Dezfouli complains can be said to relate to a "service" within the meaning of s 49M of the Act.

Statutory scheme governing complaints about health organisations

1. Any person can make a complaint to the Commission about a "health service provider": s 7 of the Health Care Complaints Act 1993 (NSW) (the HCC Act). A "health service provider" is defined to mean a person who provides a health service (being a health practitioner or a health organisation): s 4 of the HCC Act. A "health organisation" is defined to mean a body that provides a health service (not being a health practitioner): s 4 of the HCC Act. There appears to be no argument that JH is a health organisation.
2. Upon receipt of a complaint made under the HCC Act, the Commission must conduct an initial assessment of the complaint: s 19 of the HCC Act. Section 20(1) of the HCC Act states that the assessment of a complaint is for the purpose of deciding whether:

• the complaint should be investigated
• the complaint should be conciliated or dealt with under Division 9
• the complaint should be referred to the Health Secretary in accordance with section 25 or 25A
• the complaint should be referred to another person or body in accordance with section 25B or 26
• the Commission should decline to entertain the complaint.

1. With respect to the complaint received from Mr Dezfouli about podiatry services, the Commission decided to exercise its power to deal with it under Division 9 of the HCC Act. Contained in Division 9, s 58C of the HCC Act states: The Commission, when dealing with a complaint under this Division, is to take appropriate measures to assist in the resolution of the complaint, including (but not limited to) any of the following measures: (a) providing information to the parties to the complaint, (b) undertaking discussions concerning the complaint with the parties to the complaint, (c) facilitating the direct resolution of the complaint between the parties to the complaint.
2. The Commission decided to exercise its power under s 58C(c) of the HCC Act, "to facilitate the direct resolution of the complaint between the parties to the complaint". In correspondence with the President and Mr Dezfouli, the Commission refers to this action as a "local resolution process". I adopt that terminology in these reasons.

Substance of the JH complaint

1. Having examined the material provided by Mr Dezfouli together with the statutory scheme in which the Commission operates, the matters about which Mr Dezfouli complains that may be relevant to an alleged contravention of the Act appear to be: 1. By referring the JH complaint to a local resolution process, the Commission refused to provide him with a service, namely the investigation of that complaint. 2. By refusing to assess a complaint made by him, unless it raised "new and primarily clinical issues", the Commission refused to provide him with a service, namely, the assessment and determination of a complaint, or provided him with that service on discriminatory terms.

Is the investigation of a complaint a "service" within the meaning of s 49M of the Act?

1. The word "service" is an ordinary English word. Its ordinary meanings include "the action of serving, helping or benefiting; conduct tending to the welfare or advantage of another": Macquarie Dictionary; "an act of helpful activity": Oxford English Dictionary. The authorities have consistently emphasised that the term "service" should not be given a narrow construction unless that is clearly required by definition or context: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 22-23. There is no impediment to the exercise of a statutory power being characterised as a "service" for the purposes of anti-discrimination legislation. In both Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 and IW v City of Perth the power to provide the "service" in question was statutory.
2. In my view, the activities of assessing and dealing with a complaint are capable of being characterised as a "service" within the meaning of s 49M of the Act. Similarly, an investigation conducted under Part 2, Division 5 of the HCC Act is capable of being characterised as a service. Each activity can be helpful and beneficial to the complainant.

Did the Commission refuse to investigate the JH complaint?

1. Mr Dezfouli appears to claim that the Commission failed to investigate his complaint about JH.
2. On 10 June 2017, Mr Dezfouli complained to the Commission about Justice Health's alleged failure to provide him with adequate podiatry services. The available material does not disclose whether that complaint was made in writing or via the Commission's telephone inquiry service. Apparently, Mr Dezfouli wrote to the Commission on 19 July and 8 August 2017 providing further material in support of the JH complaint. Neither party provided the Tribunal with copies of that correspondence. The substance of that complaint was that Justice Health failed to provide Mr Dezfouli with adequate podiatry services.
3. On receipt of the JH complaint, the Commission was required to assess it with reference to the five courses of action listed in s 20 of the HCC Act. These include the option selected by the Commission, namely, dealing with the complaint under Division 9 of the HCC Act and referring it for local resolution. While it was not incumbent on the Commission to exercise its power to investigate the JH complaint, it was nonetheless one of the options available to the Commission.
4. Division 5 of the HCC Act gives the Commission broad powers in relation to the investigation of a complaint. The manner of investigating a complaint is not prescribed.
5. The only evidence about the steps taken by the Commission before referring the JH complaint for local resolution is the letter from the Commissioner to the Board dated 9 February 2018, in which the Commissioner wrote: [T]he only mechanism for the Commission to facilitate access to services within Justice Health is to make the request known to the Nursing Unit Manager for direct attention. Accordingly, Justice Health and the Commission both examined the complaint and it was agreed that the matter would be most appropriately addressed through local resolution.
6. For current purposes, I will assume but not decide that the steps taken by the Commission before referring the JH complaint for local resolution cannot be characterised as an investigation for the purpose of Division 9 of the HCC Act. In addition, I will proceed on the assumption that the Commission's failure to provide that service to Mr Dezfouli can be characterised as a refusal to provide that service.

Less favourable treatment and causation

1. If leave is given for the ADB complaint to proceed, Mr Dezfouli must establish that in refusing to investigate the JH complaint, the Commission subjected him to less favourable treatment and one of the reasons for that treatment was his disability. The first element requires a comparison to be made between the treatment the Commission afforded Mr Dezfouli and the manner in which the Commission treats or would treat a person without his disability, in circumstances that are not materially different to those of Mr Dezfouli. In the absence of evidence of an actual comparator - a forensic patient in the same or not materially different circumstances to Mr Dezfouli - before undertaking this comparative exercise, it is first necessary to ask: what was the reason or reasons for the Commission's failure to conduct an investigation? It is only when the answer to that question is known that it is possible to evaluate whether Mr Dezfouli was afforded less favourable treatment (See, Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63]-[65]; McEvoy v Acorn Stairlifts Pty Ltd [2017] NSWCATAD 273 at [68]).
2. Mr Dezfouli has not articulated the basis for his belief that his disability, namely a mental illness, the nature of which he has not disclosed in these proceedings, was the reason the Commission failed to investigate the JH complaint. Indeed the submissions made by Mr Dezfouli in these proceedings, suggest that he believes the reason for his less favourable is because he "complained too much". There is no material to suggest that one of the reasons the Commission failed to conduct an investigation was Mr Dezfouli's disability. Nor could that inference reasonably be drawn on the available material.
3. If leave is given for the complaint to proceed Mr Dezfouli would have an opportunity to obtain further material to support his hypothesis and to test the claim made by the Commission that its decision to not investigate his complaint was unrelated to his disability, but rather consistent with its standard practice to refer such complaints for internal resolution which, it claims, is the "only mechanism for the Commission to facilitate access to services within Justice Health". (See letter from the Commissioner to the Board, 9 February 2018).
4. To make a complaint to the Board, a complainant is not required to demonstrate a prima facie case: s 89B(2) of the Act. That a complainant has not produced any evidence to substantiate their complaint at the time of lodging it with the Board does not establish that if leave were given to the complaint to proceed, it would be found by the Tribunal to "lack substance", there being no factual basis to support the allegation of a contravention of the Act. Through the process of gathering evidence in preparation for the hearing, a complainant may be able to obtain material to support that allegation.
5. Mr Dezfouli, however, indicated that if the ADB complaint were to proceed to hearing, he will not be able to produce or obtain any further material to support his allegations. In those circumstances, in my view no useful purpose would be served in permitting the complaint to proceed.

By refusing to assess a complaint, unless it raises "new and primarily clinical issues", did the Commission refuse to provide Mr Dezfouli with a service or provide him a service on discriminatory terms?

1. As the history set out above reveals, some months prior to receiving the JH complaint, the Commission advised Mr Dezfouli that it would not assess any new complaint received from him unless it raised "new and primarily clinical issues".
2. Arguably, the failure to assess a complaint on that basis could constitute a refusal to provide a service, namely the assessment of a complaint made under the HCC Act. In addition, it could be said to relate to the terms on which assessment services were provided to Mr Dezfouli.
3. However, the available evidence does not support a finding that the Commission characterised the JH complaint as not raising "new and primarily clinical issues", or refused to assess it on that basis. Rather, the evidence reveals that the Commission assessed and determined that complaint, albeit not to the satisfaction of Mr Dezfouli.
4. It follows that it cannot be said that in relation that the Commission refused to assess the JH complaint or provided him with an assessment service on discriminatory grounds.

Conclusion

1. For these reasons I have decided it is not fair and just to permit the ADB complaint to proceed.

Order 1. Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 October 2018