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[2014] NSWCATAD 5
NCAT Administrative and Equal Opportunity
2014-01-17
Health J
Original judgment source is linked above.
Introduction 1Mr Dezfouli is an Iranian man who is a patient at the Forensic Hospital. He complained to the President of the Anti-Discrimination Board that Justice Health and Forensic Mental Health Network Inc, a statutory health corporation established under the Health Services Act 1997, has discriminated against him on the ground of his psychiatric disability by refusing to facilitate him donating one of his kidneys to a stranger. Mr Dezfouli says that Justice Health has refused his request because he is a forensic patient. 2The President declined the complaint as "lacking in substance" and Mr Dezfouli has elected to have his complaint referred to the Tribunal. Before his complaint can go ahead the Tribunal must give its permission or "leave": Anti-Discrimination Act 1977 (AD Act), s 96. I have decided to refuse leave for Mr Dezfouli's complaint to go ahead because facilitating a kidney donation is not a service that Justice Health provides and contrary to Mr Dezfouli's claim Australian citizens do not have a 'right' to donate an organ. 3The test to be applied in determining whether a compliant should go ahead is whether it is fair and just in all the circumstances to do so: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In that case the Court held at [30] that the Tribunal's discretion to grant or refuse leave is "entirely unfettered" but must be exercised judicially. The Court went on at [38] to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates. 4The President of the Anti-Discrimination Board referred this application to the Tribunal on 21 October 2013 but it was not heard until 17 January 2014. On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). 5In previous complaints the Tribunal has appointed a guardian ad litem for Mr Dezfouli: Civil and Administrative Tribunal Act, s 45(4)(a). I decided not to do so in this case because Mr Dezfouli has clearly articulated his complaint and there is no doubt that it lacks substance.
Background 6In 2004 Mr Dezfouli was found not guilty by reason of mental illness of two charges - manslaughter and "maliciously damage property by fire". He has been a forensic patient since 12 February 2002. He lodged a complaint of disability discrimination under the AD Act with the President of the ADB on 16 July 2013. His complaint was that Justice Health would not facilitate the process of him donating a kidney. Justice Health responded on 28 August 2013 saying in part, that: I have been advised by Mr Dezfouli's treating team that on one occasion, Mr Dezfouli approached them asking whether he could donate a kidney. Mr Dezfouli was informed that he would have to have compatibility testing to find out if he were a suitable donor for any proposed recipient. Mr Dezfouli appeared disappointed when advised this, he never raised the subject again with his treating team and he gave no indication that he wished to proceed. There is no compelling reason why Mr Dezfouli wishes to donate a kidney (eg no dying relative that he wishes to save where a strong case could be made on compassionate grounds.) The FH is a high secure mental health facility. Due to the circumstances of the environment, the FH would find it difficult to facilitate any patients request for similar procedures for the following reasons: There would be considerable travel required in and out of the FH, for assessments (not just physical and blood tests, tissue typing but also psychological testing to determine motivation for wanting to donate and capacity to deal with the process). The procedure itself would require admission to a hospital in the community for a period of several days (at the very least) during which patients would require several nursing staff from the FH to be with them at all times for security reasons. To allow any patient in the FH to proceed with donating an organ altruistically and anonymously would place considerable constraints on the capacity and resources of the FH and its staffing. It could realistically prevent other patients from accessing necessary medical treatment. 7Mr Dezfouli denies that he was told that he would have to have compatibility testing to find out if he were a suitable donor for any proposed recipient. He says that he was told that he could not donate a kidney because he was a forensic patient. He has interpreted this to mean that the reason for the refusal is that he has a psychiatric disability. 8The President of the Anti-Discrimination Board declined the complaint on the following grounds: Mr Dezfouli's complaint lacks substance as there is no information, other than his assertion, to indicate that JH&FMHN has refused to provide him a service or provided a service on less favourable terms on the ground of disability. It is not clear that facilitating a request to donate a kidney would amount to a service as defined in s 4 of the Anti-Discrimination Act 1977 (NSW). Even were it established that this could amount to a service, Mr Dezfouli's complaint lacks substance as no actual or hypothetical comparator was provided and no information provided by either party would indicate that JH&FMHN would make a more favourable decision for another patient within its care that did not have Mr Dezfouli's actual/presumed disability. 9In determining whether it is fair and just for this complaint to go ahead, it is necessary to consider the merits of the complaint.
Elements that must be proved 10In order to substantiate his complaint, Mr Dezfouli would have to prove that Justice Health has refused to provide him with the "service" of facilitating the donation of one of his kidneys and that that refusal was "on the ground" of his disability. Section 49M states that: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services. 11Services are defined in s 4: "services" includes: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 12Discrimination is defined in s 49B: (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. 13I understand that Mr Dezfouli is alleging "direct" discrimination as defined in s 49B(1). To prove that he has been unlawfully discriminated against, Mr Dezfouli would have to establish that: (1)he has a disability as defined in the AD Act; (2)he was refused a service or provided with a service on unfavourable terms; (3)in refusing that service or providing it on unfavourable terms, the respondent treated him less favourably than it treated or would have treated a person who did not have that disability in the same or similar circumstances: (differential treatment); and (4)at least one of the reasons for that treatment was Mr Dezfouli's disability: (causation). 14We accept that Mr Dezfouli would be able to prove that he has, or Justice Health thinks he has, a psychiatric disability.
Provision of a service? 15The service that Justice Health has refused must be identified with precision: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 per Brennan CJ and McHugh J. Mr Dezfouli says that the service is transporting him to hospital and providing an escort so that he can donate a kidney. 16Chapter 4 of the Mental Health Act 2007 sets outs the principles that should guide the care and treatment of people with a mental illness who are detained at the forensic hospital and elsewhere. Section 68 states that: It is the intention of Parliament that the following principles are, as far as practicable, to be given effect to with respect to the care and treatment of people with a mental illness or mental disorder: (a) people with a mental illness or mental disorder should receive the best possible care and treatment in the least restrictive environment enabling the care and treatment to be effectively given, (b) people with a mental illness or mental disorder should be provided with timely and high quality treatment and care in accordance with professionally accepted standards, (c) the provision of care and treatment should be designed to assist people with a mental illness or mental disorder, wherever possible, to live, work and participate in the community, (d) the prescription of medicine to a person with a mental illness or mental disorder should meet the health needs of the person and should be given only for therapeutic or diagnostic needs and not as a punishment or for the convenience of others, (e) people with a mental illness or mental disorder should be provided with appropriate information about treatment, treatment alternatives and the effects of treatment, (f) any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect is to be kept to the minimum necessary in the circumstances, (g) the age-related, gender-related, religious, cultural, language and other special needs of people with a mental illness or mental disorder should be recognised, (h) every effort that is reasonably practicable should be made to involve persons with a mental illness or mental disorder in the development of treatment plans and plans for ongoing (i) people with a mental illness or mental disorder should be informed of their legal rights and other entitlements under this Act and all reasonable efforts should be made to ensure the information is given in the language, mode of communication or terms that they are most likely to understand, (j) the role of carers for people with a mental illness or mental disorder and their rights to be kept informed should be given effect. 17The Mental Health Act relates to the "care and treatment" of a person. In general, care and treatment should only be given for therapeutic or diagnostic reasons: s 68(d). If Mr Dezfouli had a physical illness and needed to be hospitalised, there is no doubt that Justice Health would be expected to transport him to hospital and provide an escort. But there is no obligation on Justice Health to transport Mr Dezfouli to hospital or provide an escort so that he can voluntarily donate a kidney to a stranger. I acknowledge that the Mental Health Act requires that any restriction on the liberty of patients and other people with a mental illness or mental disorder and any interference with their rights, dignity and self-respect are to be kept to the minimum: s 68(f). But, contrary to Mr Dezfouli's claim, it is not the right or privilege of any citizen in Australia to donate an organ to a stranger. 18Mr Dezfouli said he had spoken to a prison officer who told him that it is possible for prisoners in the general prison population to donate an organ. He says the same privilege should be given to patients in the Forensic Hospital. Apart from this very general hearsay evidence, no evidence was provided in relation to live kidney donations to strangers. In particular there was no evidence as to whether that practice is permitted in Australia or, if it is permitted, how people are selected and which hospitals perform the procedure. Justice Health cannot be liable for refusing to facilitate Mr Dezfouli doing something which is so ill-defined. 19If this matter were to proceed to hearing, it is highly likely that the Tribunal would not be satisfied that facilitating the process of Mr Dezfouli donating a kidney to a stranger is a service that the Forensic Hospital provides to its patients. In those circumstances it has not refused to provide a service. In my view, the complaint is wholly lacking in merit on that basis. It is unnecessary for me to consider whether the Forensic Hospital's refusal to facilitate the process was "on the ground" of Mr Dezfouli's disability.
Order Leave for the complaint to proceed is refused. 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: 28 January 2014
Dezfouli
Justice Health and Forensic Mental Health Network