Dezfouli v Justice Health and Forensic Mental Health Network

Legal Principles

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, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint does not disclose a contravention of the Act, she may decline the complaint in whole or in part: s 92(1)(a)(ii). Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
3. 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.
4. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] ("Ekermawi"). 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 at [57]; Ekermawi 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 at [36], [37]; Jones 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 at [60].
5. The onus is on the Applicant to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3]. The applicant's evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether he could possibly succeed in his complaint of discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35].

Discrimination on the ground of disability in the provision of goods and services

1. Section 49M of the Act provides: "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) 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."
2. Section 49B(1) of the Act provides for what constitutes discrimination on the ground of disability: "49B 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."
3. Discrimination can be direct or indirect: s 49B(1)(a), (b) of the Act.
4. The applicant would need to establish that the Respondent provides services, and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either refusing to provide the services, or in the terms on which the services are provided. Terms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]. Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.

Statutory duty and authority

1. Where a respondent is performing a governmental function or statutory duty, 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, and the respondent may therefore not be providing "services": State of New South Wales v Whiteoak [2014] NSWCATAP 99 at [158]. In Robinson v Commissioner of Police, NSW Police Force [2013] FCA 770 it was held that "services" to a person covers activities which are helpful and beneficial to that person; therefore dealing with a person's bail application did not involve the provision of "services".
2. This Tribunal has previously considered whether the respondent was providing the Applicant with "services" whilst he was detained in a forensic hospital: see Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 at [27] to [34], and stated at [32]: In either case, it may be, that because Mr Dezfouli is detained in the facility against his will, he has no ability to decide whether to accept or reject what is done, and the activities are not "services" within the AD Act.
3. Section 54(1) of the Act provides an exception to the provisions of the Act where an act is done under statutory authority: 54 ACTS DONE UNDER STATUTORY AUTHORITY (1) Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of-- (a) any other Act, whether passed before or after this Act, (b) any regulation, ordinance, by-law, rule or other instrument made under any such other Act, (c) an order of the Tribunal, (d) an order of any court, not including an order or award of a court or tribunal having power to fix minimum wages and other terms and conditions of employment, or
4. The Respondent relied on this exception in these proceedings, on the basis that section 76D of the now-repealed MHFP Act required it to restrict the Applicant's letter writing and access to post. Section 76D of the MHFP Act provided: 76D SECURITY CONDITIONS FOR PATIENTS (1) A forensic patient who is detained in a mental health facility or other place (other than a correctional centre) or absent in accordance with this Part is to be subject to any security conditions that the Secretary considers necessary. (2) A forensic patient who is detained in a correctional centre or in any part of a correctional centre that is a mental health facility, or a correctional patient who is detained in a mental health facility or other place or absent in accordance with this Part, is to be subject to security conditions in accordance with relevant legislation and with a protocol agreed between the Secretary and the Commissioner of Corrective Services or the Secretary of the Department of Justice (as the case requires). (3) To avoid doubt, for the purposes of subsection (2): (a) any part of a correctional centre that is a mental health facility is taken to be a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 , and (b) a forensic patient or correctional patient who is detained in that facility is taken to be an inmate within the meaning of that Act and that Act and the regulations made under that Act, apply to any such patient, subject to any modifications and to the extent specified by the regulations.
5. The Tribunal notes the repeal of the MHFP Act with effect from 27 March 2021 by s 167(a) of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (MHCIFP Act). Section 117 of the MHCIFP Act is in similar terms to s 76D of the MHFP Act: 117 SECURITY CONDITIONS FOR PATIENTS (1) A forensic patient who is detained in a mental health facility or other place (other than a correctional centre or detention centre) or is absent in accordance with this Part is to be subject to any security conditions that the Secretary considers necessary. (2) A forensic patient who is detained in a correctional centre or detention centre or in a part of a correctional centre or detention centre that is a mental health facility, or a correctional patient who is detained in a mental health facility or other place or is absent in accordance with this Part, is to be subject to security conditions in accordance with relevant legislation and with any protocol agreed between the Secretary and the Commissioner of Corrective Services or the Secretary of the Department of Communities and Justice (as the case requires). (3) To avoid doubt, for the purposes of subsection (2)-- (a) a part of a correctional centre that is a mental health facility is taken to be a correctional centre within the meaning of the Crimes (Administration of Sentences) Act 1999 and a forensic patient or correctional patient who is detained in that facility is taken to be an inmate within the meaning of that Act and that Act and the regulations under that Act, apply to the patient, subject to any modifications and to the extent specified by the regulations, and (b) a part of a detention centre that is a mental health facility is taken to be a detention centre within the meaning of the Children (Detention Centres) Act 1987 and a forensic patient or correctional patient who is detained in that facility is taken to be an inmate within the meaning of that Act and that Act and the regulations under that Act, apply to the patient, subject to any modifications and to the extent specified by the regulations.
6. The power to inspect, open, read and withhold mail of forensic hospital patients is enabled by s 76D of the MHFP Act and "Policy 5.016 Patient Mail - Forensic Hospital" (the Policy), which was in force at the time of the Applicant's complaint to: …provide guidance for the Forensic Hospital staff on the processes to ensure that mail sent from or received by patients does not pose a threat to the safety or security of any individual or organisation.
7. The powers under s 76D of the MHFP Act and s 117 of the MHCIFP Act were delegated under s 21 of the Health Administration Act 1982 to a number of the Respondent's executives and officers, including the CEO of the Respondent and the Chief Psychiatrist.
8. The Policy contains the following relevant extracts: 2.1 … Where it has been identified that a patient poses a risk to the security of the FH [Forensic Hospital] or may cause harm to self or others due to the receiving or sending of mail, the Multidisciplinary Team (MDT) must assess this risk and implement the most effective control measures which are reasonably practicable in the circumstances and ensure that control strategies remain effective over time through periodic and routine reviews… … 2.2.9 MDT is responsible for: - Using clinical judgment to assess the likelihood that mail may contain prohibited or non approved items and advising the NUM if a risk is identified; … 3.1… the MDT should implement strategies to mitigate the identified risk. These strategies must be documented in the patients' health record and TPRIM. Strategies to mitigate this risk may include, but are not limited to: - with exception to privileged correspondence, reading all incoming and outgoing mail based on risk assessment of psychological harm to others; or - limiting the amount of mail the patient can receive or send; or - restricting the patient from receiving or sending mail from or to a certain person or organisations; or - withholding all mail; or - restricting the patient from receiving or sending mail for a period of time.

Consideration

1. The Applicant complained that he was subject to restrictions because of his disability which were not imposed on anyone else in the mental health unit, numbering some 130 patients, or within his ward, numbering 32 patients. The Tribunal therefore understands his complaint to be one of direct discrimination within the meaning of s 49B(1)(a) of the Act.
2. The Applicant stated at hearing that the restrictions complained of were that the Multi-Disciplinary Team (MDT) were sent all his outgoing mail and reviewed all his outgoing mail. He could submit two letters to the MDT each week but they would only send one letter each week. He complained that they opened and reviewed all his mail, even those letters he believed were "privileged".
3. The Applicant stated that his disability of schizophrenia and his ongoing mental health issues contributed to his need to write letters. He was targeted, singled out, and treated less favourably because of his mental health needs. He complained that the review of his letters by the MDT was contrary to the Policy, contrary to Article 12 of the Declaration of Human Rights, and there was no letter of delegation supporting the MDT reviewing his mail.
4. The Applicant's submitted to the effect that the restrictions placed on him by the Respondent were differential treatment in comparison to the other patients of the Forensic Mental Health Unit and his ward.
5. The Respondent acknowledged that the Applicant was subjected to differential treatment in comparison to other patients, but noted that this was not related to his disability, but rather, the individual risks posed by his letter writing. The Policy was imposed on all patients within the Mental Health Unit including the Applicant's ward, but the risk assessments were conducted individually, and therefore each individual was subject to different restrictions dependent on the risks identified.
6. The Respondent submitted that the Applicant was assessed as a high security risk in the context of the Policy because of his history of prolific letter writing which has been at times hostile, threatening, and abusive in nature, including an incident in 2019 involving white powder being sent to the NSW State Premier which elicited a counter-terrorism response. The risk assessment and consequent restrictions placed on him were reviewed regularly, every two weeks during his MDT meeting. At the time of the Applicant's complaint to Anti-Discrimination (NSW) his restrictions were that one letter would be reviewed by the MDT each fortnight to be sent. The Policy as made pursuant to s 76D of the MHFP Act and s 117 of the MHCIFP Act supported the imposition of letter writing and mail restrictions on the Applicant, and these excluded the Respondent's conduct from being unlawful disability discrimination under the Act.
7. The Applicant admitted his history of prolific letter writing including the 2019 incident which invoked a counter-terrorism response. His submission was to the effect that his letters and conduct were not threatening or abusive, but were justified by the treatment and conduct of which he complained in those letters, including allegations of corruption, brutality, torture, crimes against humanity, inhuman treatment, sexual harassment, assault and medical experimentation. He provided the Tribunal with examples of those letters. Included in those examples were letters dated to January 2019 addressed to the Prime Minister, NSW Premier, various Federal and State Ministers and journalists which concluded: …you eventually have to let go of me, I live for that moment, then I know what to do to you. And I had ENOUGH in the last TWENTY YEARS, and ENOUGH is ENOUGH. Now it is entirely up to you, either let me leave Australia forever NOW or you will pay for what you did to me and to my life in your Barbaric System. And …if I ever get out of indefinite detention out of this Guantanamo Bay of Australia alive, I am going to visit your wife and do to her what Justice Health has done to my Civil, Legal and Human Rights in the last SEVENTEEN YEARS, ie I will fuck your wife in your own bed every night.
8. To prove direct disability discrimination, if the complaint were to proceed, the Applicant would have to prove that: 1. the respondent is a person who provides goods or services; 2. the respondent refused to provide him with goods or services or provided him with goods or services on unfavourable terms; 3. by doing so, the respondent treated him 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.
9. The Applicant has not identified with particularity the "goods" or "services" the respondent is said to be providing to him. As discussed in relation to previous discrimination complaints made by the Applicant, his failure to identify the services with which he was provided makes it more difficult for him to discharge his onus, but is not determinative of his leave application: see, for example: Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 at [23] to [26], Dezfouli v Justice Health and Forensic Mental Health Network (No 9) [2018] NSWCATAD 170 at [14] to [17], Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245 at [25] to [27] and Dezfouli v Justice Health and Anor [2008] NSWADT 99 at [10], which referred to established authority for the requirement to identify the services with precision: "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."
10. Bearing in mind the comments made by McHugh J in Waters v Public Transport Corp (1991) 173 CLR 349 at 404-405 that "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", it would appear to the Tribunal that the "services" identified by the Applicant are the sending of mail from the Applicant to individuals and organisations outside of the Forensic Mental Health Unit managed by the Respondent. However there remains the question of whether the Respondent in performing its statutory functions and duties is providing "services" within the meaning of the Act, as discussed above at 16 to 17. The Applicant submitted that the Tribunal had previously found that the Respondent had provided him with "services" within the meaning of the Act, referring to the decision of Dezfouli v Department of Corrective Services & anor [2007] NSWADT 198. However as discussed in Dezfouli v Justice Health and anor [2008] NSWADT 99 and Dezfouli v State of New South Wales (Justice Health) and anor [2008] NSWADT 122 at [11], it is not possible at this stage to determine whether a Tribunal would be likely to find that those activities come within the definition of "services" in the Act.
11. The Respondent did not dispute that, to the extent that controlling the sending and receipt of mail to and from patients would be considered a "service" within the meaning of the Act (which was disputed), the Applicant was provided with that service on "unfavourable terms". The restrictions placed on the Applicant's mail would support a finding that the terms were unfavourable. Nor did the Respondent dispute that the Applicant was treated differently to any other individuals, stating in confirmation that the restrictions placed on the Applicant's mail were implemented on him specifically. To the extent that a comparator would need to be considered in those circumstances, a hypothetical comparator could be another patient in the Forensic Mental Health Unit with the same or similar risk assessment to the Applicant, who did not suffer from the Applicant's disability of schizophrenia with ongoing mental needs contributing to his copious letter writing.
12. Taking the Applicant's evidence at its highest, there is simply no basis for the Tribunal finding that the restrictions imposed on the Applicant were placed on him because of his disability, or a characteristic thereof. It is highly unlikely therefore that the Applicant would be able to demonstrate causation, if his complaint were to proceed. The reasons for imposing the restrictions on the Applicant are entirely supported by the Policy, risk and clinical assessment, and the Applicant's history of prolific letter writing, with some of those letters provided to the Tribunal containing obvious abuse and threats. There is no evidentiary basis upon which the Tribunal would find that the risk assessment conducted by the Respondent's MDT, or the restrictions consequently imposed, were or are unjustified.
13. The requirements of s 76D of the MHFP Act and s 117 of the MHCIFP Act require that the Policy be implemented, and that the Applicant's mail be reviewed. It also requires that the MDT, using clinical judgment to assess risk, implements strategies to mitigate the identified risk. The Policy allows for that risk and the strategies then decided upon by the MDT to be regularly reviewed. There is a notification and complaints resolution process in place as part of that Policy, and it is not within the Tribunal's jurisdiction to review whether the Applicant has been afforded procedural fairness or the Policy has been appropriately applied to the Applicant's mail.
14. Accordingly, I agree with Anti-Discrimination (NSW)'s grounds for declinature that the Applicant's complaint does not disclose a contravention of the Act or the regulations. Acknowledging that the Applicant believes he has been treated unfairly and unjustly by the Respondent for a number of years, the Applicant has not satisfied me that it would be fair and just for leave to be granted in relation to the complaint made 25 November 2020 regarding the restrictions placed on his letter writing.

Order 1. Leave is refused for the Applicant's complaint to proceed pursuant to 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

Amendments 16 December 2021 - Superfluous bracket removed in line 1 of [4] 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: 16 December 2021