Dezfouli v Justice Health and Forensic Mental Health Network

NCAT Administrative and Equal Opportunity|2014-11-04|Before: Health J

reasons for decision

Mr Dezfouli 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 had discriminated against him on the ground of his sex in breach of the Anti-Discrimination Act 1977 (NSW). Mr Dezfouli alleges that: 1. every 3 months female patients are allowed to order take away food to be delivered to them (such as Kentucky Fried Chicken, pizza or Chinese) to the value of up to $20 but male patients do not have that privilege; and 2. female patients are allowed to go outside the Forensic Hospital on escorted day leave but no male patient is allowed that privilege.
Mr Dezfouli has withdrawn that part of his complaint relating to the use of bicycles by female patients.
In previous complaints the Tribunal has appointed a guardian ad litem for Mr Dezfouli: Civil and Administrative Tribunal Act (NSW) 2013, s 45(4)(a). I decided not to do so for the purposes of the leave hearing because Mr Dezfouli has clearly articulated his complaint.
The President declined the complaint as "lacking in substance" and Mr Dezfouli has elected to have it referred to the Tribunal. Before his complaint can go ahead, the Tribunal must give its permission or 'leave'. The test when exercising its discretion is whether it is fair and just in all the circumstances to grant leave: Anti-Discrimination Act, s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143.
The Tribunal's discretion to grant or refuse leave is 'entirely unfettered' but must be exercised judicially: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors at [30]. 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.

Access to take-away food

It was not disputed that female patients are able to order take-away food once every three months while male patients are not. Mr Dezfouli says that while he and other patients have access to the kiosk on the hospital grounds, Kentucky Fried Chicken, pizza and Chinese food is not available at the kiosk.
According to the respondent, the privilege was given in order to assess women's pro-social behaviours. As the majority of females do not have unescorted access to the kiosk at the hospital, they do not have the opportunity to sit down and interact with others. Most male patients, including Mr Dezfouli, have unescorted access to the kiosk.
Mr Dezfouli does not accept the reason that the respondent gave for treating female patients differently from males. He asserted that the real reason was that the women's facilities are inadequate because acute, sub-acute, rehabilitation and long stay female patients are all housed in the same ward. According to Mr Dezfouli, the respondent is 'bribing' the women with a 'take-away' night once every three months to encourage them to behave themselves.

Legislative provisions

Section 33 of the Anti-Discrimination provides that: 1. It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: 1. by refusing to provide the person with those goods or services, or 2. in the terms on which he or she provides the person with those goods or services. 1. Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice.
I understand Mr Dezfouli to be alleging direct sex discrimination as defined in s 24(1). 1. A person ("the perpetrator" ) discriminates against another person ( the aggrieved person" ) on the ground of sex if the perpetrator: 1. on the ground of the aggrieved person's sex or the sex 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 of the opposite sex or who does not have such a relative or associate of that sex, or
Consequently, in order to prove that the respondent had discriminated against him on the ground of sex in breach of s 33 of the Anti-Discrimination Act , Mr Dezfouli would have to prove that: 1. the respondent has refused to provide him with a service or has provided a service on certain terms; 2. in refusing those services or providing them on certain terms, the respondent has treated Mr Dezfouli less favourably than it treated or would have treated a woman in the same or similar circumstances; and 3. at least one of the reasons for that treatment was that Mr Dezfouli's is a male.
The Appeal Panel has recently decided that the classification of inmates under the under the Crimes (Administration of Sentences) Regulation 2008 (NSW) does not constitute a "service" to those individuals by the State of NSW: State of New South Wales v Whiteoak [2014] NSWCATAP 99 (4 December 2014). The conclusion of President Wright at [217] was that: 1. providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and 2. when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense.
This conclusion supports Mr Dezfouli's case that the respondent is providing a service to supply the needs of patients by giving them access to food from a restaurant outside the hospital grounds. It is likely that a Tribunal hearing this matter would find that the respondent is providing patients with that service and that is has refused to provide it to Mr Dezfouli. It is also likely that a Tribunal would find that, in that respect, the respondent has treated Mr Dezfouli less favourably than it treats female patients. There may be an argument as to whether the circumstances of the male patients are the same or not materially different, from women's circumstances.
The final question is whether at least one of the reasons for the treatment is because Mr Dezfouli is male.
The respondent has submitted that the reason for the policy is to assess women's pro-social behaviours. That reasons is not so apparent that it would persuade a Tribunal hearing this case. Evidence would be needed to explain what, on the surface, appears to be a discriminatory policy. In the circumstances, I consider it fair and just for this aspect of Mr Dezfouli's complaint to go ahead so that evidence can be adduced as to the basis for what appears on the surface to be discrimination against male patients.

Access to escorted day leave

According to the respondent, escorted day leave for forensic patients is a new program introduced in 2014. Patients are entitled to that leave if the Mental Health Review Tribunal (MHRT) determines that it should be granted. Those decisions are generally made on the recommendation of the Forensic Hospital but a patient could apply for such leave.
Prior to 15 March 2014 when Mr Dezfouli lodged the complaint with the Anti-Discrimination Board, two female patients had been granted day leave by the MHRT. Since then the respondent says that two men have been approved for day leave. Mr Dezfouli only knows of one 70 year old man who has been approved. According to the Forensic Hospital, there is no impediment to male patients receiving therapeutic leave where appropriate and approved by the MHRT.
In relation to this part of the complaint, Mr Dezfouli is again alleging direct sex discrimination in the provision of services under s 33 of the Anti-Discrimination Act.
In order to substantiate the complaint he would have to prove that the respondent is providing him with a service and identify that service. Therapeutic external leave is leave granted under s 49 the Mental Health (Forensic Provisions) Act 1990 (NSW): 1. The Tribunal may make an order allowing a forensic patient to be absent from a mental health facility, correctional centre or other place for such period and subject to such terms and conditions, if any, as the Tribunal thinks fit. 2. An order may be made on the application of the patient or on the motion of the Tribunal. 3. The Tribunal must not make an order allowing a forensic patient to be absent from a mental health facility, correctional centre or other place unless it is satisfied, on the evidence available to it, that the safety of the patient or any member of the public will not be seriously endangered if the leave of absence is granted. 4. This section does not prevent leave of absence being granted to a forensic patient detained in a correctional centre under any other Act or law. 5. The section has effect despite the Crimes (Administration of Sentences) Act 1999 .
Under s 50, the Director General of the Department of Attorney General and Justice may allow a forensic patient to be absent from a mental health facility in circumstances constituting an "emergency" or other "special circumstances". That is not the kind of leave Mr Dezfouli seeks and, in any event, the Director General is not a party to these proceedings.
Decisions under s 49 of the Mental Health (Forensic Provisions) Act 1990 are made by the MHRT, not the respondent. Consequently, the failure to make such a decision does not constitute the refusal of a service by the respondent. That is the case regardless of whether the respondent may initiate an application for external leave to the MHRT. The MHRT is the decision maker. Contrary to Mr Dezfouli's submission, there is no ambiguity in the legislation.
In those circumstances, access to escorted day leave is not a service that the respondent provides to Mr Dezfouli. Given that the complaint is doomed to fail, it is not fair or just for it to proceed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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: 22 January 2015

Crimes (Administration of Sentences) Regulation 2008(NSW)

Mental Health (Forensic Provisions) Act 1990(NSW)

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