FBY v Secretary, NSW Ministry of Health

NCAT Administrative and Equal Opportunity|2021-08-06

REASONS FOR DECISION

In March 2014, the applicant medical practitioner, FBY was diagnosed with human immunodeficiency virus (HIV). At that time, the applicant was training to be a neurosurgeon and was working in a NSW public hospital. Guidelines then in place covering NSW public hospitals prohibited health workers with certain blood-borne viruses, including HIV, from performing "expose prone procedures" (EPPs), which included surgery.
In December 2015, the Secretary, NSW Ministry of Health (the Secretary) introduced guidelines permitting health workers with blood-borne viruses to perform EPPS in NSW public hospitals, providing they met certain conditions. In May 2018, after unsuccessfully applying for locum work in NSW private hospitals as a trainee neurosurgeon, the applicant was advised by the Secretary that those guidelines only applied to NSW public facilities and if he were to work in a NSW private facility, he would be in breach of guidelines which covered private health facilities.
In December 2019, the applicant made a complaint to the President of NSW Anti-Discrimination (the President) alleging that the Secretary had discriminated against him on the ground of disability (the Complaint). Section 49J of the Anti-Discrimination Act 1977 (NSW) makes it unlawful for a "qualifying body" to refuse or to fail to confer an authorisation or a qualification that is needed for, or facilitates the practice of a profession, or the engaging in an occupation, on a person on the ground of disability.
Following referral of the Complaint to the NSW Civil and Administrative Tribunal, the Secretary made an application for dismissal under s 102 of the Anti-Discrimination Act. The Secretary contends that the Complaint is misconceived and lacking in substance. The key issue raised by the dismissal application is whether it is not reasonably arguable that the Secretary is a "qualifying body" for the purpose of s 49J of the Anti-Discrimination Act.
For the reasons that follow, I have decided not to dismiss the Complaint.

Background

When the applicant was diagnosed with HIV, the Policy Directive: NSW Health HIV, Hepatitis B or Hepatitis C - Health Care Workers Infected (re-issued 25 January 2005) was in place. That policy prohibited health workers with HIV from performing EPPs. As a consequence, between March 2014, when he was diagnosed with HIV, and December 2015, the applicant was not permitted to undertake surgery in NSW public hospitals.
In December 2015, the Secretary introduced the Interim Guidelines for Health Care Workers with HIV Infection Performing Exposure Prone Procedures Working for NSW Health (the Interim Guidelines). Those guidelines permitted health workers with HIV to perform EPPs, provided they met certain conditions. The Interim Guidelines were expressed to apply to "health care workers ... working for NSW Health" and to health care workers performing EPPs in "NSW Health Facilities".
Between February 2016 and February 2018, the applicant continued his neurosurgery traineeship in a NSW public hospital. In February 2018, the applicant commenced applying for locum work at NSW private hospitals. In May 2018, the applicant was informed by a senior officer of NSW Health that the Interim Guidelines did not apply to private health facilities and that private hospitals were covered by the Communicable Diseases Network of Australia, Australian National Guidelines for the Management of Health Care Workers Known to be Infected with Blood-Borne Viruses (the 2012 CDNA Guidelines). Those guidelines prohibited healthcare workers with HIV performing EPPs.
On 18 December 2018, the Secretary adopted revised Guidelines (the 2018 CDNA Guidelines), which permitted health workers with HIV to perform EPPs subject to conditions which mirrored those in the Interim Guidelines. It appears that since December 2018, the 2018 CDNA Guidelines have been applied by private health facilities . The available material does not disclose how NSW private health facilities came to adopt the 2012 and 2018 CDNA Guidelines.

Tribunal's power to dismiss a complaint

Section 102 of the of the Anti-Discrimination Act provides that the Tribunal may, at any stage in proceedings, dismiss the whole or any part of a complaint on a ground on which the President may decline the whole or any part of a complaint under ss 92(1)(a)(i) and/or 92(1)(a)(ii): 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.
In these proceedings I will interpret the word "misconceived" to mean a "misunderstanding of legal principle" (Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [11]) and "lacking in substance" to mean "not reasonably arguable" (The Owners Corporation of Strata Plan 4521 v Zouk [2007] NSWCA 23 at [45]; Secretary, Department of Communities and Justice v Tebb at [11]).
The Secretary bears the onus of establishing that the power to dismiss the Complaint should be exercised: Murtough v NSW Bar Association [2011] NSWADT 243 at [24]; Eagle Arts and Vocational College v State of New South Wales [2018] NSWCATAD 147 at [14]. That power must be exercised with extreme caution: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]; Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16. In exercising that power, the facts on which the applicant relies must be taken at their highest: Kitoko v Sydney Local Health District [2018] NSWCATAP 38 at [41]; Tebb v State of NSW [2020] NSWCATAD 85 at [6].

Unlawful discrimination on the ground of disability

Section 49J of the Anti-Discrimination Act states: 49J Qualifying bodies (1) It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability- (a) by refusing or failing to confer, renew or extend the authorisation or qualification, or (b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or (c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held.

Regulation of private health facilities in NSW

In NSW, private health facilities are licenced and regulated by the Private Health Facilities Act 2007 (NSW) and the Private Health Facilities Regulation 2017 (NSW).
The Private Health Facilities Act defines "private health facility" to mean: … premises at which any person is admitted, provided with medical, surgical or other prescribed treatment and then discharged, or premises at which a person is provided with prescribed services or treatments, but it does not include- (a) an institution conducted by or on behalf of the State, or (b) a hospital or health service under the control of a public health organisation within the meaning of the Health Services Act 1997, or (c) a nursing home within the meaning of the Public Health Act 2010, or (d) premises of a class prescribed by the regulations for the purposes of this definition.
A private health facility must be licensed in accordance with Pt 2 of the Private Health Facilities Act. It is an offence for a person to conduct a private health facility without a licence: s 33.
An application for a licence is to be made to the Secretary by the person who intends to conduct the facility: s 6. The Secretary may issue a licence in accordance with Div 2 of Pt 2 of the Private Health Facilities Act. A licence may be issued subject to conditions which are specified in the licence: s 42.
Division 6 of Pt 2 of the Private Health Facilities Act gives the Secretary power to suspend or cancel a licence. The Secretary may: 1. suspend a licence, if the licensee is in breach of a licensing standard and the breach is likely to cause a serious and substantial risk to the health and safety of patients at the facility, or the licensee does not have a medical advisory committee appointed in accordance with this Act in respect of the facility: s 29(1); 2. cancel a licence, if, among other things, the licensee breaches a condition of the licence, or the facility is conducted in such a manner that cancellation is in the public interest: s 31.
A licensee of a private health facility (the licensee) must appoint a "medical advisory committee" for the facility to be responsible for, among other things, advising the licensee on the accreditation of practitioners to provide services at the facility, and matters concerning clinical practice and patient care and safety at the facility: ss 39(1), 39(2) of the Private Health Facilities Act. The licensee is responsible for the safety of patients at the facility and for clinical governance of the facility: s 39(7).
Section 5 of the Private Health Facilities Act provides that the regulations may prescribe "licensing standards": 5 Licensing standards The regulations may prescribe standards for or with respect to any matter relating to the safety, care or quality of life of patients at private health facilities, including without limitation the following matters- (a) clinical standards, including accreditation of practitioners to provide services at the facility, delineation of clinical privileges of practitioners and quality assurance, (b) staffing, including qualifications of staff members, number of staff and duties, …
Schedule 1 to the Private Health Facilities Regulation contains several licensing standards which apply to all private health facilities: cl 5. They include: 11 Staff qualifications and experience A private health facility must have- (a) a sufficient number of qualified and experienced staff on duty, at all times, to carry out the services provided by the facility, and … 13 Infection control (1) A private health facility must have a written infection control policy outlining the procedures to be followed to prevent or reduce the risk of a patient acquiring an infection while at the facility. (2) Without limiting subclause (1), an infection control policy must make provision for the on-going education of staff with respect to infection control. (3) A private health facility must ensure that the infection control policy is complied with. (4) All decontamination systems and processes for reusable medical devices and clinical equipment must comply with AS/NZS 4187:2003, Cleaning, disinfecting and sterilizing reusable medical and surgical instruments and equipment, and maintenance of associated environments in health care facilities or AS/NZS 4187:2014, Reprocessing of reusable medical devices in health service organizations.

Submissions

The Secretary contends that the Complaint is misconceived for the following reasons.
First, it cannot be said, as is asserted by the applicant, that the Secretary discriminated against him on the grounds of his HIV status by "implementing the [2012] CDNA Guidelines, and not the Interim Guidelines, in private health facilities" because the Secretary did not have power to implement, or to direct private health facilities to apply the Interim Guidelines (or any comparable policy). Responsibility for infection control and other matters relating to patient care and clinical governance lay with the relevant private health facility and not the Secretary (nor the Ministry). While the Private Health Facilities Regulation require private health facilities to have an infection control policy, apart from cl 13(4) of Sch 1, is not presently relevant, the Regulation does not prescribe the content of infection control policies that apply in private health facilities. That is a matter for the individual facility.
Second, even if it is accepted that the Secretary could impose infection control requirements on private health facilities, that could not be said to "confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of [the medical] profession". The Secretary contends that a further step is needed, that is, the authorisation of the person to perform EPPs. The power to authorise a medical practitioner to perform EPPs in a private health facility is held by the relevant facility not the Secretary.
Third, while the Secretary is empowered to "confer, renew or extend" an "authorisation" on private health facilities, that is, a licence to operate such a facility, the Secretary is not empowered to "confer, renew or extend" an "authorisation or qualification" on the applicant. In support, the Secretary cites Eagle Arts and Vocational College v State of NSW [2018] NSWCATAD 147. At [20]-[24], the Tribunal (DP Hennessey) rejected the argument that the NSW Educational Standards Authority (NESA) was a "qualifying body" for the purpose of s 49J of the Anti-Discrimination Act: 20. The "authorisation" or "qualification" was said by the College to be "the determination by NESA, not only as to the requirements for registration but also the determination whether or not a school has complied with such requirements". In my view this is an impermissibly broad interpretation of the terms "authorisation or qualification". The authorisation or qualification in the context of these proceedings is registration of a school as a non-government school. Registration is a non-government school's licence to operate. 21. NESA has functions in relation to the registration of schools, but it is not "empowered" to confer, renew, extend, withdraw or vary the terms of the registration of non-government schools. Only the Minister has that power. The powers NESA exercised under s 56 and 59 of the Education Act in relation to the College were the making of recommendations to the Minister. The exercise of those powers is not treatment conferring, renewing, extending, withdrawing or varying the terms of the registration of the College. For that reason, the complaint lacks substance to the extent that it alleges a contravention by NESA of s 12 or s 49J. 22. If that conclusion is not correct, and NESA is empowered to confer etc. registration of non-government schools, the third element that the College would have to establish is that registration is needed for or facilitates the practice of a profession or occupation. ... 24. In my view, even if NESA did have power to confer, renew, extend, withdraw or vary the terms of the College's registration, registration is not needed for, nor does it facilitate, the practice of a profession or the engaging in of an occupation. It is a licence for the College to operate. It does not confer any other authority or qualification on any person. I accept that a teacher employed by a non-government school will be unable to engage in the occupation of teaching at that particular school if the school's registration is cancelled. But NESA has a separate power to accredit teachers under the Teacher Accreditation Act 2004: Education Standards Authority Act 2013 (NSW), s 12(2)(c). The registration of the College is entirely separate from an individual's accreditation as a teacher. Registration has no impact on the ability of a teacher or other person to practice their profession or engage in their occupation.
The applicant urges the Tribunal not to exercise the power to dismiss the Complaint for the following reasons.
First, s 49J should not be read as being confined to tertiary institutions or accrediting bodies that issue qualifications but rather it should be read as including those entities that authorise actions either through policy or law. The use of the words "authorisation" and "qualification" indicates that s 49J should be read broadly to include many types of entities. NSW Health is an authority or body that is empowered to confer, renew or extend such authorisations and therefore potentially falls within the scope of s 49J.
Second, given that private health facilities are required to have a written infection control policy (cl 13(1) of Sch 1 to the Private Health Facilities Regulation) and the Secretary is responsible for licensing and accrediting such facilities, it is at least arguable that the Secretary possesses the power "to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession''.
Third, by failing to confer an authorisation on health practitioners with blood-borne viruses to undertake EPPs in private health facilities until the introduction of the 2018 CDNA Guidelines, the Secretary was in effect exercising, or failing to exercise its power as a qualifying body.
Fourth, the contention that the Secretary failed to confer an authorisation on the applicant to practise is consistent with the information he was given by a senior officer of the Communicable Diseases Branch of NSW Health. In an email sent 8 May 2018, in answer to an inquiry by the applicant the senior officer stated: Unfortunately the guidelines under which [the applicant] was performing EPPs at [a public hospital] apply only to health care workers working within a NSW health facility. If he were to do EPPs in a private health facility, he would be in breach of the CDNA guidelines and not covered by the Interim Guidelines.
The applicant contends that this evidence is sufficient to suggest that even if it were theoretically possible for private health facilities to set their own infection control guidelines (which is not conceded), as a matter of practice such facilities adopted a form of guidelines, here the 2012 CDNA Guidelines, which ensured conformity with NSW Health requirements at accreditation time, and for obtaining licenses.
Fifth, while at this stage of the proceedings he cannot point to any policy, direction, licensing or accreditation requirement, the effect of which was to require private health facilities to apply the 2012 CDNA Guidelines, he should be given the opportunity to issue summonses to explore whether the Secretary by some mechanism effectively required private health facilities to apply those guidelines. The contention that the Secretary required private health facilities to comply with those guidelines would explain why up until December 2018 all NSW private health facilities applied the 2012 CDNA Guidelines and, as indicated by the senior health officer's advice to the applicant (see [31] above), that fact was known to the Secretary.
The Secretary points out that despite these proceedings being adjourned to give the applicant the opportunity to issue summonses to obtain material to support his hypotheses that she required/directed private health facilities to apply the 2012 CDNA Guidelines, he has not provided any material. The applicant submits that the failure to obtain that material was the result of a dispute in relation to the summons.

Consideration

It falls to the Secretary to establish that the Complaint is misconceived or not reasonably arguable.
To come within s 49J of the Anti-Discrimination Act it must be established that the Secretary: 1. is empowered to confer, renew or extend an authorisation or a qualification, which is needed for, or facilitates, the practice of health care/medicine or the engaging in the occupation of a health care worker/ medical practitioner in a private health facility; and 2. refused or failed to confer that authorisation or qualification on the applicant on the ground of his disability, namely HIV.
Because the Act is remedial and beneficial in character, s 49J must be given a liberal rather than a constrained interpretation: Khoury v Government Insurance Office of NSW [1984] HCA 55; (1984) 165 CLR 622 at 638; Dionisatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 at [12]; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359.
As the Secretary points out a distinction must be drawn between the power to license private health facilities and the power to confer, renew or extend an authorisation or a qualification on people working without those facilities.
For current purposes I will assume but not decide that between 2014 and December 2018, all NSW private health facilities applied the 2012 CDNA Guidelines. However, that does not establish that the Secretary expressly or implicitly required private health facilities to comply with those guidelines. Even if established, it does not follow that the Secretary was empowered to confer an authorisation or qualification on health workers working in, or applying to work in, private health facilities.
The fact that the Regulation required private health facilities to develop and implement an infection control policy and be responsible for clinical governance and patient care, does not exclude the possibility that through the licensing or accreditation processes, the Secretary expressly or implicitly required facilities to comply with the 2012 CDNA Guidelines, in part or whole.
The Secretary makes a powerful argument that even if it is established that she required private health facilities to apply the 2012 CDNA Guidelines, it does not follow that she had power to confer an authorisation or qualification on health workers, that is needed for such workers to practice their relevant profession or to engage in their occupation at private health facilities. However, the issue cannot be as neatly disposed of as the Secretary suggests by pointing to the absence of an express power given to her to confer, renew or extend an authorisation or qualification on health workers engaged by private health facilities. The answer to that question will turn on the nature of the requirement, if any, imposed by the Secretary on private health facilities with respect to the 2012 CDNA Guidelines and the proper construction of s 49J of the Anti-Discrimination Act.
It is regrettable that the material the applicant sought to obtain under summons, which he contends is critical to an understanding of the reason NSW private health facilities en masse applied the 2012 CDNA Guidelines until December 2018, and the role played by the Secretary, was not available for the dismissal hearing. Apparently there was a dispute over the costs sought to answer that summons. I am mindful that if the proceedings continue, it is possible that dispute will not be resolved, or that any material produced will not assist the applicant.
Despite these concerns I have decided that it would be premature to exercise that power until the applicant is given a further opportunity to obtain the material he contends is critical to a proper understanding of the role played by the Secretary, in relation to her purported failure to confer an authorisation or qualification on health workers with HIV working at private health facilities. In reaching that decision I have taken into account as the authorities have consistently emphasised, that the power to dismiss a complaint under s 102 of the Anti-Discrimination Act must be exercised with extreme caution. I have decided not to exercise the discretion to dismiss the Complaint.

Orders 1. The application made by the respondent to dismiss the Complaint 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: 29 October 2021

Private Health Facilities Regulation 2017(NSW)

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Judgment (9 paragraphs)

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