Dezfouli v Justice Health and Forensic Mental Health Network

NCAT Administrative and Equal Opportunity|2020-05-29|Before: Health J

Background

Mr Sayeed Dezfouli is a patient in Long Bay Forensic Hospital and has been detained at that facility since early 2002. In 2004, Mr Dezfouli was found by a Jury to be 'not guilty' of murder, and 'not guilty' of maliciously damaging property intending by that damage to endanger the life of another. The same Jury in 2004 found Mr Dezfouli also to be 'not guilty by reason of mental illness' of manslaughter and 'not guilty by reason of mental illness' of maliciously damaging property by fire.
The circumstances leading to the Jury's findings related to Mr Dezfouli allegedly starting a fire causing the death of a woman with whom he had previously worked in a government organisation.
The Long Bay Forensic Hospital where Mr Dezfouli is housed, is a facility where inmates with mental health diagnoses are held on remand, after sentencing, or following being found not fit to stand trial.
On 12 November 2018, Mr Dezfouli lodged claims with the President of the Anti-Discrimination Board (respectively the President and the Board), including two complaints of victimisation for the period 12 November 2017 to 12 November 2018 and for the period 13 November 2018 to 1 February 2019. A further complaint of discrimination on the basis of disability in the area of goods and services for the period 1 January 2019 to 1 February 2019 was also added to his complaint.
The President of the Board on 21 August 2019 referred to the Tribunal under s93C(c) of the Anti-Discrimination Act 1977 (ADA) for determination.
Justice Health and Forensic Mental Health Network (Justice Health), the respondent, is a statutory health corporation, being a specialty network governed health corporation constituted by s41 Health Services Act 1997 (NSW).
On 25 September 2019, in accordance with this Tribunal's order, a 'Statement of Claim' dated 13 October 2019 was received by the Tribunal Registry on 18 November 2019.

Complaint Summary

In the material referred to the Tribunal by the President of the Board the following complaint summary was provided: 'On 12 November 2018 the President of the Anti-Discrimination Board NSW received a complaint from Mr Sayeed Dezfouli ('the complainant'). The complainant alleges that Justice Health and Forensic Mental Health Network ('the respondent') discriminated against him on the basis of disability in the area of goods and services. A copy of the original complaint is enclosed (Tab 1) as well as additional information provided by the complainant on 10 January 2019, 14 January 2019 and 1 February 2019 (Tabs 2, 3, and 4 respectively). On 18 February 2019 the complainant was accepted for investigation under 89B of the Anti-Discrimination Act 1977 (NSW) ('the Act'). On the basis of the additional information provided by the claimant on 10 January 2019, 14 January 2019 and 1 February 2019 the original complaint was amended pursuant to s91(c) and accepted for investigation as follows: • A complaint of victimisation for the period 12 November 2017 to 12 November 2018 (C2018/0701). Events which allegedly occurred predating 11 November 2017 were declined. Furthermore on the basis of the additional information provided by the complainant, two additional complaints were accepted for investigation: • a complaint of disability discrimination in the area of goods and services for the period 1 January 2019 to 1 February 2019 (C2019/0085); and • a complaint of victimisation covering alleged events in the period 13 November 2018 to 1 February 2019 (C2019/0086). In summary the complainant alleges that: • In the last 3 years he lodged about 12 complaints with Anti-Discrimination NSW (ADNSW) and subsequent NCAT proceedings were by teleconference and on speaker. Two nurses were in the room overhearing the proceedings and discussed it with other nurses at handover. • This has 'made them turn against' him and in the last 12 months at the time of enforcing medications they 'have become more hostile'. • If he a [sic] little late for a meal the staff shut the door and don't let him eat, but they open the door for other patients. Similarly, if he forgets to ask for his cardiac medication the nurses don't give it to him, but they do give it to other patients. • During January 2019 he was treated differently to other patients in his ability to access the kiosk on a weekly basis. On 17 April 2019 ADNSW wrote to Mr Gary Frost, Chief Executive, Justice Health and Forensic Mental Health Network, asking him to respond to the complainant's allegations (Tab 5). On 13 June 2019 ADNSW received a response from the respondent (Tab 6). In response the respondent submits that: • 'Staff are aware of Mr Dezfouli's complaints as the matters complained of him … are discussed with staff in order to properly investigate such allegations'. • The complainant is detained in accordance with mental health legislation and his medication is administered involuntarily, where he is physically restrained (if he declines to take it voluntarily). • The procedure on hospital meals applies equally to all patients. • 'Patients are not expected to request their medication and staff do not withhold medication unless medically indicated'. On 13 June 2019 ADNSW provided the complainant with a copy of the respondent's response and asked for his comments in reply. On 25 June 2019 the complainant verbally informed ADNSW that, while he would like to be able to do so, he is unable to provide written comments on the respondent's response because he does not have permission to send external emails. This was confirmed by the respondent who advised ADNSW that this is a bail condition imposed on the complainant in January 2019.'

Statement of Claim

In accordance with the Tribunal's orders Mr Dezfouli filed a Statement of Claim which recites the complaints lodged with the Board. He contends that two nurses were in a room with him whilst he was on a teleconference at an NCAT hearing: the nurses overheard his twelve complaints lodged with the Board (complaints made previous to this NCAT hearing). The teleconference used a speakerphone allowing the nurses to hear the complaints. Mr Dezfouli alleges that since that hearing he has been targeted and the recipient of ill-treatment, victimisation and discrimination as he has been treated less favourably than other patients.
The orders Mr Dezfouli seeks are: 1. A Royal Commission into the conduct of Justice Health. 2. Justice Health stop targeting him, physically and mentally torturing him, sexually harassing and assaulting him; discriminating and victimising him. 3. Justice Health apologise to him for 'doing that so far'. 4. Justice Health pay the sum of $50,000 to Mr Dezfouli to build a new library for patients at the forensic hospital.

Evidence

The applicant's evidence consists of:
the application referred to the Tribunal from the Board, including the President's report;
the Statement of Claim dated 13 October 2019;
a letter from Mr Dezfouli to Prime Minister Scott Morrison, Premier Gladys Berejiklian and others dated 12 November 2018;
written response to the respondent's statement and submissions 15 December 2019.
The respondent's evidence consists of submissions filed 5 December 2019.

Legislation

S49M(1) of the ADA provides relevantly as follows: '(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the grounds of disability: (a) … (b) in the terms on which he or she provides a person with those goods or services.'
S49B of the ADA sets out what constitutes discrimination on the grounds 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 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 able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and which the aggrieved person does not or is not able to comply.'

Issues for Determination

To succeed in his application Mr Dezfouli must prove the following: 1. the respondent is a person who provides goods or services; 2. the respondent refused to provide the Mr Dezfouli with goods or services or provided him with goods or services on unfavourable terms; 3. in its actions, the respondent treated Mr Dezfouli less favourably than it treated or would have treated a person without his disability in the same or similar circumstances (differential treatment); 4. one of the reasons for that treatment was his disability.

Evidence

Mr Dezfouli relies upon his Statement of Claim and complaint to the Board dated 27 October 2018 in respect of the following matters: victimisation for the period 12 November 2017 to 12 November 2018.
As a result of two nurses having been in the room whilst Mr Dezfouli was on a teleconference using a speakerphone, he alleges that the nurses overhead everything he was saying in terms of his complaints to NCAT and as a result of this he has been targeted and continued to be ill-treated, victimised and discriminated against. He says that he is treated less favourably than other patients. Mr Dezfouli said that nurses have been increasingly aware that he has lodged complaints with the Anti-Discrimination Board and, amongst other things, they have become more hostile in administering his medication.
The respondent was asked to respond to these allegations. In a letter of 12 June 2019 from Gary Forest, Chief Executive of JH to the Board he responded: 1. Nurses have become increasingly aware that the complainant has lodged complaints with the Anti-Discrimination Board. Staff are aware of Mr Dezfouli's complaints as the matters complained of by him in relation to allegations of discrimination are discussed with staff in order to properly investigate such allegations and arrive at an informed decision as to the veracity of such allegations. 1. In administering the complainant's medications, nurses have become 'more hostile'. Mr Dezfouli is detained in accordance with mental health legislation with minimal insight into his illness. Consequently, his medication is administered involuntarily if he declines to take it voluntarily. In order to involuntarily administer Mr Dezfouli with his prescribed injectable medication, he is physically restrained by nursing staff who are trained in accredited violence and prevention management (VPM) techniques. This procedure is always undertaken as a team in accordance with recognised, standard practices. All episodes of restraints are recorded in clinical notes. 1. The complainant is treated less favourably than other patients who are late to meals and who forget to ask for their cardiac medication. Patients are consistently called, on multiple occasions, prior to all meal service. The forensic hospital procedure on patient meals requires all patients and staff to be present in the dining area during mealtimes to provide for the safety and security of the unit. External doors and interlocking ward doors are locked until all cutleries have been accounted for and counted in. Patients are not permitted to walk freely throughout patient meal areas. This procedure applies to all patients within the forensic hospital. Patients are not expected to request their medication and staff do not withhold any medication unless indicated.

Allegations of Victimisation and Discrimination of the basis of Disability in the areas of Goods and Services between the period 1 January 2019 to 1 February 2019

Mr Dezfouli complains that he was treated less favourably in relation to visits to a kiosk in January 2019. In that regard Mr Dezfouli referred to other patients being able to access the kiosk in circumstances where they had not carried out the required participation and therapeutic groups.
The respondent provided the following answer to a question raised by the Board to it with respect to this allegation: 'All patients in the Dee Why unit are required to attend community meetings and a minimum of 7 therapeutic groups per week, to gain access to the kiosk. Access to the kiosk is given to all patients that have progressed to a certain level in their treatment and who are participating in the unit's programme. Mr Dezfouli has refused to participate in the unit's programme. However, the treating team has approved him limited kiosk access, despite no participation in the therapeutic programme, at the time of the complaint.'

Consideration

Mr Dezfouli has not clearly identified the "goods" or "services" which he says the respondent provided to him. As Magistrate Hennessy, noted in relation to a previous discrimination complaint made by Mr Dezfouli (Dezfouli v Justice Health and Anor [2008] NSWADT 99 at [10]): It is essential when alleging discrimination in the provision of services that the services that are being provided are precisely defined: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.
This point was earlier made in Waters v Public Transport Corp [1991] HCA 49; (1991) 173 CLR 349 at 404-405 by McHugh J, who said "the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues which arise for determination."
The respondent has raised in its written submissions whether the provision of a phone service, or a phone service with complete privacy, or, a phone lacking a loudspeaker is relevant. The respondent says that there is some doubt as to whether the respondent was providing Mr Dezfouli with 'services' whilst he was detained in a forensic hospital and refers to Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 at [27] to [34]. It says that the respondent is performing a government function or statutory duty and, depending upon the way in which the relevant 'services' are identified, the persons affected may have no ability to decide whether to accept or reject what is done or the outcome (State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]).
The term 'services' is defined in s4(1) of the ADA to include: '(a) services relating to banking, insurance, 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 professional trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of 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.'
In IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at [23] and State of New South Wales v Whiteoak the term 'services' has its ordinary meaning. As referred to in Dezfouli v Justice Health and Forensic Mental Health Network (No 9) (2018) NSWCATAD 170 [19] adopted this reasoning and found: 'The only one of the specified examples which appears to be potentially applicable is 'services provided by a … public authority'' (Paragraph (e)).
The Tribunal found that there must be some doubt as to whether Justice Health was providing Mr Dezfouli with 'services' whilst he was detailed in a forensic hospital.
The putative services could be providing a telephone service or nursing services or access to the items in the kiosk (goods). Mr Dezfouli's failure to identify the services and/or goods with which he was provided makes it more difficult for him to discharge his onus of persuading the Tribunal that the respondent is providing goods or services.
The then President of the Tribunal, Justice Wright, found the following in State of New South Wales v Whiteoak: 'If a government function or statutory duty is being performed and the persons affected have no ability to decide whether to accept or reject what is done or the outcome, it is unlikely that the services are being provided.' at [158]. 'When a government function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided"…' at [160]. This is because the ordinary meaning of 'services' does not include 'a fundamental integer of a system over which those affected have no or almost no control' at [211].
In adopting the reasoning set out in Whiteoak, we are not satisfied that the respondent was providing Mr Dezfouli with a service nor providing goods. However, Mr Dezfouli's complaint is not primarily directed at the refusal to provide services (a telephone), or goods at a kiosk, but rather the inability to have been able to make telephone calls in complete privacy. The latter in our view is not the provision of services. At this stage of our analysis Mr Dezfouli's claim fails in terms of him not discharge his onus of persuading the Tribunal that that the respondent is providing goods or services. If, however, we are not correct on this point, we provide the following findings.
Mr Dezfouli contends in his application that he was provided services on less favourable terms than other patients within the forensic hospital, that is, that there was differential treatment.

Differential Treatment

Mr Dezfouli submits that patients in the Dee Why Ward were treated differently from him, in so far as being able to access the kiosk and medication.
To be successful in this respect Mr Dezfouli must prove that he was treated less favourably than a person or persons without his disability were treated or would have been treated in the same circumstances, or in circumstances that were not materially different. Gummow, Hayne and Heydon observed of s5(1) of the Disability Discrimination Act 1992 (Cth) in Purvis v State of New South Wales [2003] HCA 62 (at 223): 'In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, section 5(1) requires that the circumstances attending to the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled.'
Mr Dezfouli must identify that it was the respondent's policy that he could only make telephone calls, or access the kiosk and medication, with certain restrictions and that that treatment was less favourable than the way the respondent would have treated other persons without Mr Dezfouli's disability.
It is not disputed that Mr Dezfouli has been diagnosed with a mental illness being Chronic Paranoid Schizophrenia and/or Delusional Disorder, and that this is his disability.
To succeed in his claim, Mr Dezfouli could rely on a hypothetical comparator.
The Tribunal in Dezfouli v Justice Health and Forensic Mental Health Network (2014) NSWCATAD 188 undertook an examination in similar circumstances to which we are tasked. Relevantly, the Tribunal said, which reasoning we adopt: 'The other residents of the forensic hospital cannot be appropriate comparators, because they all share a disability as a result of a mental illness. Even if Mr Dezfouli's disability was characterised in the narrowest way, as the disability which results from his particular diagnosis or diagnoses, we cannot be satisfied that the other patients were appropriate comparators, as there is no evidence to establish whether they suffered from the same mental illness, or a different mental illness.'
On page 50 of the papers Mr Dezfouli alleges two incidents where patients A and B are permitted to access the kiosk without complying with the "stamp sheet". Mr Dezfouli tenders this evidence in the form a copy of a complaint he has written to the A/NUM. In his opening line to this letter, Mr Dezfouli confirms that he does not comply with 'the stamp sheet'. He complains of discrimination because he alleges A and B also do not comply are granted this privilege.
The respondent has detailed at paragraph 20 (above) its response and refers to the kiosk access policy and to Mr Dezfouli's non-compliance. However, it offers no detail against the incidents alleged concerning A and B. Mr Dezfouli's complaint is not that he is restricted from the kiosk, but that others who engage in similar non-compliance to himself are granted access, hence his claim of victimisation. A summary of stamp sheets and kiosk access for each person, or an affidavit from the A/NUM about the administration of this policy upon Mr Dezfouli, compared to the others, would have been useful.
However, in applying the reasoning of the Tribunal as set out in Dezfouli v Justice Health and Forensic Mental Health Network (2014) NSWCATAD 188 (above), Mr Dezfouli has not presented any evidence to indicate that such a person, if that person were a patient like the applicant, would not also be subject to the restrictions. We are not satisfied that Mr Dezfouli was treated or would have been treated differently from persons without his disability in the same circumstances, or in circumstances not materially different.
We have considered the respondent's evidence as set out in paragraph 18 above as it relates to the allegations of victimisation and other forms of discrimination. We have considered the 'Forensic Hospital Procedure - Telephone Calls - Patients' and restrictions imposed on Mr Dezfouli by having two staff members present when he is participating in telephone calls.
It is worth noting that the respondents reply fails to identify Mr Dezfoulis' complaint as it relates to there being two nurses present during his NCAT teleconference hearing, which nurses may be witnesses in the hearing itself. The nurses are not present at the hearing in the circumstances as (permissible) members of the public, but rather are attending int heir professional roles relative to Mr Dezfouli. Whilst this matter is not fatal to the respondent's position, it may be a matter that is further considered at any future arrangements made for hearings of this type.
Similarly there is no evidence before us that Mr Dezfouli is treated any differently than others in terms of access to meals and access to medication, or the administration of, medication.
In summary, Mr Dezfouli has not demonstrated that he is treated any differently than others based upon his psychiatric disability.

Causation

Mr Dezfouli claims that the reason for the victimisation and differential treated he alleges in this application, is related to his previous complaints to NCAT and other bodies, which are based on his psychiatric disability. There is no evidence to support this claim.
The suggestion that the cause of any differential treatment is because of his psychiatric disability is not supported by the evidence.

Relief Sought

For completeness, the Tribunal does not have jurisdiction to: call for a Royal Commission into the conduct of Justice Health; order that Justice Health stop targeting him in the matters alleged; require that they apologise to him for 'doing that so far'; or compensate him to the sum of $50,000 to build a law library for the patients. However, we accept that we have jurisdiction pursuant to make orders in accordance with s 108 of the ADA.

Conclusion

The Tribunal is not satisfied that Mr Dezfouli has demonstrated that the various arrangements put in place by the respondent have, on the grounds of Mr Dezfouli's disability, treated him less favourably than a person without his disability was, or would have been, treated in the same circumstances, or in circumstances not materially different.
The complaint is dismissed.

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: 29 May 2020

At a glance

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Judgment (14 paragraphs)

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Legislation Cited (3)

Cases Cited (7)