Dezfouli v State of NSW, Justice Health and Forensic Mental Health Network

NCAT Administrative and Equal Opportunity|2024-02-14|Before: Health J

REASONS FOR DECISION

Mr Dezfouli is an Iranian man who is a patient at the Forensic Hospital. He complained to the President of the Anti-Discrimination NSW that he had been victimised and discriminated against on the grounds of a disability (psychiatric) in the provision of goods and services. He alleged that he was transferred to another ward when he made a complaint and that the conditions on the ward are less favourable than conditions on other wards.
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 proceed, 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 1977 (AD Act), s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. I have decided not to grant leave for Mr Dezfouli's complaint to proceed.
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 supra 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.

Background

In 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. Mr Dezfouli lives with a chronic paranoid psychotic illness.

Complaints to Anti-Discrimination NSW

Mr Dezfouli lodged a complaint of unlawful discrimination and victimisation under the AD Act with the President of Anti-Discrimination NSW on 11 December 2023.
Mr Dezfouli contends that he was in the rehabilitation ward at Dee Why for ten years. On 14 March 2022, his then treating consultant offered to have sex with him. When he refused to do so, Mr Dezfouli was transferred, 2 days later, on 16 March 2022, to the high dependency unit of the sub-acute ward (Clovelly ward). Since that time Mr Defzouli has not been getting along with the treating team staff. On 22 November 2023, Mr Dezfouli wrote a letter to the A/Clinical Director Dr Christina Matthews to have a new doctor allocated for his treatment.
On 29 November 2023, the treating team transferred Mr Dezfouli to the high dependency unit in the acute ward (Bronte ward) and placed him with acutely mentally ill patients which, he alleges happens to patients if they complain. Mr Dezfouli contends that the transfers demonstrate he has been treated less favourably than other patients who do not have a disability and discriminated in the area of goods and services. He also contends that this treatment amounts to victimisation.
The President of the Anti-Discrimination NSW declined the complaint of victimisation on the following grounds: "... I am satisfied the complaint is lacking in substance for the following reason: the complaint raised about the doctor does not refer to any discrimination but the that the doctor is inverted comma incompetent, inexperienced, unethical, unprofessional and sadistic"
The President of the Anti-Discrimination NSW declined the complaint of discrimination on the following grounds: "... the complainant is complaining about aspects of his conditions in the forensic hospital asserting without any supporting evidence that it is discrimination on the grounds of his disability. The conditions the complainant is complaining about could arguably not be considered a service within the meaning of the act. The complainants regular and constant complaining about every aspect of his conditions is arguably vexatious and a misconceived use of the act."
In determining whether it is fair and just for this complaint to proceed, it is necessary to consider the merits of the complaint at their highest.

RELEVANT LEGISLATION

Section 92 of the AD Act provides: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint - (a) the President is satisfied that - (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of - (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96.
Section 93A provides: 93A Referral of complaints to Tribunal at requirement of complainant (1) If the President has given a complainant a notice under section 87B (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal. (2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal.
Section 96 provides: 96 Leave of Tribunal required for inquiry into certain matters (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. …

The elements of victimisation

Section 50 of the AD Act states that: (1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
To prove victimisation, Mr Dezfouli must establish that: (1) he did one of the things referred to in sub-paras (a) to (d) of s 50; (2) he suffered some consequential detriment; and (3) that detriment occurred on one of the grounds set out in sub-paras (a) to (d).

Relevant criteria s 50(1)(a)-(d) of the AD Act?

Mr Dezfouli contends that he made a complaint about Dr Xia to the A/Clinical Director Dr Matthews on the basis "I could not get along with my incompetent unethical, unprofessional, unethical and sadistic treating doctor Shelly Xia" on or around 22 November 2023.
And set out above for Mr Dezfouli to be successful in a claim for victimisation he must establish one of the one or more of matters set out in s 50(1)(a)-(e) of the AD Act. The summary of the complaint in paragraph [16] above does not in my view satisfy any of the criteria in that section. In the absence of Mr Dezfouli being able to satisfy one or more of those matters in s 50(1) (a)-(e), his complaint of victimisation would fail.
It is not necessary to consider the complaint of victimisation any further given my finding.
It is not fair or just for the complaint to proceed.

DISABILITY DISCRIMINATION- GOODS AND SERVICES

S49M(1) of the AD Act 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 AD Act 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.'
Mr Dezfouli's complaint is one of direct discrimination. 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.

Was the respondent providing goods and services?

Mr Dezfouli has not clearly identified the "goods" or "services" which he says the respondent provided to him. Magistrate Hennessy, as she then was, noted 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 ("Waters") 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 oral submissions whether Mr Dezfouli being detained in the forensic unit was providing "goods" or "services" in the context of the AD Act. 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. I agree for the following reasons.
In Dezfouli v Justice Health and Forensic Mental Health Network [2021] NSWCATAD 362, the Tribunal considered this issue, which I also adopt: 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 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". 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. 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 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. 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. 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. 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. 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.
In, Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83 at [27] to [34] the Tribunal considered whether the respondent was 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, which in my view is apposite (see - 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 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].
Mr Dezfouli has not identified with any particularity the "goods" or "services" the respondent is said to be providing to him. As discussed in relation to previous discrimination complaints made by him, 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."
Bearing in mind the comments made by McHugh J in Waters 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 him being accommodated in different wards 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 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.
Accordingly, I agree with Anti-Discrimination (NSW)'s grounds for declinature that Mr Dezfouli's complaint does not disclose a contravention of the Act or the regulations. I am not satisfied that Mr Dezfouli will establish the respondent was providing services. Even if services were being provided, there is no evidence establishing that the respondent refused to provide the Mr Dezfouli with services or provided him with services on unfavourable terms; nor 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).
Mr Dezfouli has not satisfied me that it would be fair and just for leave to be granted.
Leave to proceed is refused.

orders

The following order is made: 1. Leave to proceed with the complaint of unlawful discrimination and victimisation 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: 19 June 2024

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