The applicant says that the respondent has provided accommodation to her in the form of placement in its nursing home. The applicant says that she wishes to make reasonable alterations to that accommodation by way of the attachment of a bed pole to her bed. The applicant further says that this alteration is for the purpose of meeting her special needs and that all of the other subsections of section 55 are fulfilled.
The applicant submits that, as with the other sections of the Act which I have referred, these definitions must be considered broadly having regard to the objectives of the Act to eliminate discrimination to the greatest extent possible. I accept that this is so.
The word accommodation is defined in the Act. It is an inclusive decision - that is, it includes seven different types of accommodation without restricting the meaning of the word to those concepts outlined in the definition.
The types of accommodation included are varied, from a camping site to a boarding house to a house or flat.
The applicant says that using a broad approach, a nursing home is to be properly described as accommodation within the terms of section 55 of the Act. I agree.
The word disability in section 55 is also defined and the applicant contends that in assessing that section her disability is secondary progressive multiple sclerosis which impairs her mobility and strength.
Reasonable alterations to that accommodation are not defined. The applicant says that the word alteration should be given its ordinary meaning and that when read together with the word "accommodation", an alteration would include temporary changes or modifications to moveable items incidental to the provision of the accommodation and forming part of the physical environment in which the accommodation is provided.
The applicant contends that the word alteration would also include modifications or changes to accommodation that require minimal efforts to reverse.
The applicant says that the provision of a bed pole thus comes within the definition of alteration to the accommodation and that the provision of a bed pole is reasonable in all the circumstances.
She further relies upon the examples given in the notes to section 56 of the Act as supporting an interpretation of the Act which would allow the provision of a bed pole.
Those examples are as follows.
The first is fixing a ramp to the external façade of the building.
The second is installing a mechanical device in the front door of the building to enable the person to open the door automatically.
The second example the applicant says is not very far removed from what she wants to do which is to affix a bed pole to her bed.
The respondent says that the requests made by the applicant are not requests to make alteration to accommodation. Although the respondent accepts that it has provided Mrs Petrou with accommodation, in the sense that that term is used in section 55, it argues that her requests to reinstall a fixed bed pole or install a folding bed pole are not requests to make alteration to that accommodation.
It submits that the word alteration means a change in the character or composition, typically in a comparatively small but significant way, of the accommodation itself - that is the physical accommodation in which Mrs Petrou is living. The respondents suggests that the wording of section 55 makes it plain that the vice that is being addressed is that of refusal to alter to make alterations of a structural nature, or to fixtures.
The respondent says that it is a strain of the language of section 55 to suggest that this section is designed to deal with the provision of chattels within the accommodation. The respondent says that the alterations must be alterations of significance to the physical form of the accommodation or features of the accommodation itself. The respondent suggests that what the applicant is trying to do is to force the section to do something which was not intended. The respondent suggests that this is a strained interpretation of the words of section 55, and refers to the often quoted words of Brennan J in Waters as follows:
[2]
The provision of needed services and the protection against adverse and unjust discrimination are distinct and related means of securing the welfare and dignity of the disabled. This litigation seems to me to be largely misdirected for it invokes the Act and alleges unlawful discrimination when the remedy which is sought is the enhancement of the services available to the disabled. Antidiscrimination legislation cannot carry a traffic it was not designed to bear. The beneficial operation of such legislation is prejudiced by invoking its assistance to achieve remedies which can be achieved only by straining the legislative language. Anti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal means by which the disadvantages of the disabled In any event the respondent says that Mrs Petrou's request for the alteration is not reasonable.
[3]
There does not appear to be any authority on the difference between the use of the word reasonable in section 55 and its use in section 9. The respondent says that my approach to the question of reasonableness under this section should be the same as the approach to reasonableness under section 9.
In my view the practical reality is that in determining whether Mrs Petrou has requested a reasonable alteration, all of the matters which I have previously discussed when considering reasonableness under section 9 must come into play. This includes the evidence about the risk of the bed pole to Mrs Petrou, the matters discussed in connection with the risk to the facility itself from the prospect of residents being put in danger by the use of bed poles, and consideration of alterative options.
My attitude to this claim also is thus based upon the findings I've made as to these issues.
I am far from convinced that it is appropriate to describe a bed pole is being an alteration to accommodation. However the basic difficulty with this claim is the question of whether or not the proposed alteration, if indeed provision of a bed pole can be described in this way, is reasonable.
The applicant has submitted to me that because the word "reasonable" when used in section 55 has no definition compared to the exhaustive definition of this word in section 9, a broader view should be taken of the concept of what is reasonable when considering the applicants claim under section 55. It was also pointed out that when dealing with this section, I need to be persuaded that Ms Petro has requested reasonable alterations, rather than to be persuaded that the actions of the respondent are not reasonable. These are logically different propositions.
The applicant says that the word reasonable in section 55 must be determined in the light of all the circumstances of the case, and that this supports the use of a broad construction of the word reasonable and suggests that for example section 55 would allow an occupier to move a large planter box, bed or other item of furniture to allow improved wheelchair access, or to move a bar fridge to the bed side for evening access to medications that required refrigeration.
I agree that there are no limits placed upon the definition of the word reasonable as it appears in section 55. However on the facts of this case I see no reason to take a different view when looking at the issue of reasonableness issue within the prism of section 55 as compared to the issues raised in relation to section 9.
Given the respondents legal liability to the applicant and to its other residents, and its responsibilities in safely managing the applicant's accommodation, I'm not able to find that the request of the applicant for provision of the bed pole is reasonable.
The applicant also frames its claim in the terms of section 44 of the Equal Opportunity Act 2010. That section provides that a person must not discriminate by refusing to provide services, in the terms on which the services are provided, or by subjecting a person to a detriment in connection with the provision of a service.
The respondent agrees that the respondent provides a service to the applicant within a definition of services under section 44 of the Act so I do not need to deal with that definition in any detail.
The applicant particularly relies upon a requirement put on the respondent by section 41 and 54(1) (a) of the Aged Care Act 1997, which is Commonwealth legislation. The applicant says that the schedule to that Act setting out the care and services to be provided to residents who need them, is broad enough to include the supply of bed poles and that by failing to supply this item, the respondent was in breach of that Act.
The applicant also says that the respondent is in breach of section 44(1) (b) by preventing Mrs Petrou from installing and using a bed pole. The applicant says that this legislation provides the minimum terms of a residential care service required by the respondent to Mrs Petrou as they constitute bedding materials or goods to assist care recipients to move themselves. The applicant submits that the respondent provides accommodation to the applicant and has subjected her to a detriment in connection with the provision of that accommodation and those services and that she therefore seeks relief under section 44 of the Act.
This claim revolves around the same issues as I have earlier discussed. The real issue is whether Mrs Petrou has suffered a detriment in the provision of a service, and whether the respondent is obligated under the sections relied upon to provide a bed pole to Mrs Petrou given the circumstances which have been outlined in the evidence and the findings I have made.
It will be apparent from the reasoning above that I do not find that the bed pole policy does constitute such a detriment. Although I have found that removal of the bed pole has caused some disadvantage to Mrs Petro, when those disadvantages are set against the fact that by removing a bed pole she is not exposed to the rich risk of injury or death, I do not consider it appropriate for the removal of the bed pole to be described as a detriment.
[6]
In case I am wrong in my analysis of the four grounds on which discrimination has been claimed by Mrs Petrou, I note that each one of those grounds attracts two separate defences under the Act.
Firstly, if discrimination is found proven, section 75 of the Act authorises that discrimination if it is necessary to comply with authorised by any act.
The respondent says that if discrimination is otherwise found, that discrimination came within the exception in section 75 of the Act as being authorised by the Occupational Health and Safety Act 2004 and the accreditation standards, or was an act reasonably necessary to comply with that legislation.
It further alleges that if discrimination is found, it was authorised by section 59.1(1) (f) of the Aged Care Act 1997 (Cth) read with section 6(2) (b) of the User Rights Principles 2014 (Cth) and therefore came within the exception in section 75 of the Act.
The second defence raised by the respondent is that the requirement that Mrs Petrou cease using the bed pole was reasonably necessary to protect her health and safety, together with the health and safety of the respondents staff, her family and the public generally. This defence arises under section 86 of the Equal Opportunity Act 2010.
The burden of proving each of these defences lies upon the respondent.
Section 75 of the Equal Opportunity Act 2010 provides that a person may discriminate if that discrimination is necessary to comply with or is authorised by any Act.
The respondent claims that in the event that Mrs Petrou makes out her claim under section 9 of the Act that indirect discrimination was necessary to comply with various Acts of Parliament.
Section 65 says that it is not necessary for the provision relied upon to specifically refer to authorising discrimination as long as it authorises or necessitates the relevant conduct that would otherwise constitute discrimination.
The respondent puts her case under section 75 in this way. The respondent says that it has an obligation under section 21 and 23 of the Occupational Health and Safety Act 2004 and part 4 of the Accreditation Standards which are authorised by the relevant sections of the Aged Care Act 1997 which is the Commonwealth statute and section 6(2) (b) of the User Rights Principles 2014, which is also a Commonwealth document.
In the particulars filed by the respondent in relation to section 75 the respondent says this:
[9]
The User Rights Principles permit an approved provider to terminate a person's care if it no longer provides accommodation and care suitable for the care recipient. Having regard to the care recipient's long terms needs as assessed, and the approved provider does not agree to provide care of the kind that the carer recipient presently needs.
[10]
These particulars are directed at the Aged Care Act 1997 and the User Rights Principles.
There is no requirement that the approved provider act reasonably in its decision not to provide suitable care.
Thus, an approved provider may ask the care recipient to leave the residential care service if Section 6(2) (b) of the User Rights Principles is satisfied. The approved provider is not obliged to alter the accommodation or care to meet assessed needs. By necessary implication, therefore, the relevant provisions authorised the alleged contraventions of section 55 of the Act.
The respondent says that its conduct imposing the bed pole policy on Mrs Petrou was necessary in order for it to comply with its obligations under the accreditation standards of the Aged Care Act 1997.
Thus the respondent says that if discrimination did occur, it was authorised by law or alternatively was reasonably necessary to comply with law - that is the obligations on the respondent to attend to providing a safe working environment for its staff and not to expose any person at risk.
I accept the respondent's arguments and find that section 75 does apply in this case.
[11]
The respondent also relies on a defence under section 86 of the Act.
Section 86 reads as follows:
[12]
(1) A person may discriminate against another person on the basis of disability or physical features if the discrimination is reasonably necessary
[13]
(a) to protect the health or safety of any person (including the person discriminated against) or of the public generally.
[14]
The respondent says that its action in imposing the bed pole policy was to protect the health and safety of Mrs Petrou. Mrs Petrou's family and the respondent's staff.
The respondent pointed to the evidence which I have heard about the impact of traumatic death and serious injury on staff and family members, quite apart from the impact of a deadly fall on Mrs Petrou herself.
In particular there was evidence from the psychiatrist Dr Epstein that such trauma would be worse on family members if it had happened in a situation where the family members had assisted their mother to obtain the device which had later seriously injured her or contributed to her death.
Ms Berry gave evidence about the effect on staff on such situations.
The applicant argues that neither of these defences apply in this case.
There may well be several equally reasonable options. If this is the case, and the respondent has chosen one of those reasonable options, then this case must fail.
What I must look to is what is sought to be achieved by the requirement or condition. The requirement or condition is not reasonable if that requirement can be just as easily achieved in an alternative way, accommodating the concerns of both the applicant and the respondent in doing so.
The argument of the respondent is that here the alternatives put forward by the applicant do not accommodate the actual risk which is addressed by the requirement.
The risk, although admittedly small, is very grave. It is the risk of strangulation between the bed pole and the bed or of other injury by reason of the failure of the bed pole to stay in position.
Keeping clearly in mind that it is for the respondent to show that their requirement is reasonably necessary to protect the health and safety of any person, and that the applicant bears no duty of the proof in this regard, I nonetheless accept that section 86 does apply in this case as a defence to the applicant's claims.
[15]
The applicant at the very commencement of these proceedings indicated that she would be seeking me to draw a Jones v Dunkel inference in relation to the respondent not calling any of its employees who have the daily care of Mrs Petrou. These employees were nurses or carers at the Clayton facility and in particular three named carers who care for the applicant most regularly. The evidence was that they all remained employed by the respondent and yet they were not called and no evidence was given as to any difficulty that may have been encountered in securing their attendance.
The principle relied upon in making this submission is that because those witnesses were intimately involved in the care of the applicant, they may have been expected to be able to give evidence about relevant matters in this proceeding. The applicant suggested that the inferences that I should draw from them not being called were as follows:
Firstly, that any evidence that they could give would not support the respondent's position in relation to the applicant's abilities and limitations arising out of her disability, including any aspersions passed on the truthfulness of her instructions about her disability.
Secondly that I should draw an inference that the evidence would not support a conclusion that Mrs Petrou would not be inconvenienced or put at risk of injury by the installation of a bed pole,
Thirdly that the evidence would not support the respondent's position in relation to the lack of benefit to be obtained by the applicant from being able to use a bed pole.
Fourthly I should draw the inference that the evidence of those carers would not support the respondent's position that the applicant is capable of moving herself in bed sufficiently while sleeping at night to give rise to a risk that she would fall of the bed while sleeping and be trapped by a bed pole.
I do accept that the inference should be drawn from the non-calling of these witnesses that those witnesses will not support the evidence given by Ms Pretorius that the applicant was not able to move in bed, and not able to independently wheel herself around her room.
However that is the extent to which I am prepared to draw any inferences from the failure of those witnesses to give evidence. I record that I do not expect that those witnesses would have been qualified to give evidence about the question of whether Mrs Petrou would be put at risk of injury by the installation of a bed pole, or as to whether or not there is a risk that she would fall off the bed while sleeping and be trapped by the bed pole.
In relation to the latter issue, it is instructive to note that particularly in relation to the McKee and Westcott inquests, the Coroner noted that staff had tragically not realised that the patient had the capacity to move or roll over in bed - and yet the patient had in fact somehow been able to achieve this movement, with deadly results.
[16]
I have found the claims under sections 9, 53(f), 55 and 44 of the Act not proven.
I also find that the respondent has the benefit of the defences under section 75 of the Act; that is that discrimination is necessary to comply with its obligations under the Occupational Health & Safety Act 2004 and the Aged Care Act 1997. It has also made out its defence under section 86 of the Act because the bed pole policy is reasonable necessary for the protection of the health and safety of Ms Petrou and that of other residents in the care of the respondent.
It follows that each application will be dismissed.
Petrou v Bupa Aged Care Australia Pty Ltd (Human Rights) [2017] VCAT 1706 (18 October 2017)
One of the significant matters which the applicant has argued is that the policy is unreasonable because the policy does not distinguish between the individual circumstances of residents or the basis on which they may rely on or seek to use a bed pole. It also does not distinguish between types of bed poles. The applicant submitted that the evidence showed that the Deutscher bed poles does not suffer from the dangers of the KA524 bed pole.
The applicant also pointed to the fact that there was no outright ban on bed poles by government, and that at least two other aged care providers continue to allow the use of bed poles. The applicant argued that it was not reasonable of the respondent to impose a ban without allowing for exceptions, or for an individual assessment of each resident to ascertain whether such a ban was justified on the medical evidence.
The applicant thus says that the policy is not reasonable because it was produced in response to danger from a completely different type of bed pole. The applicant says that the extreme risk of injury or death applies to a completely different device than the bed pole which is the subject of this proceeding. By not providing for any individual assessment of residents but instead requiring all residents to comply with the policy and by not distinguishing between different styles of bed pole, the applicant says that the respondent's ban is clearly unreasonable.
The applicant said this is particularly so when one remembers that when the applicant did use a bed pole its use was regularly reviewed by physiotherapist and was recommended by one.
Overall the applicant's submission was that there are alternative less restrictive measures available known to the respondent which could manage the negligible risks associated with this applicant's use of a bed pole.
Ms Berry gave evidence that the use of a blanket ban was required because it was unhelpful in administering each facility if homes approach the delivery of care in different ways. She said that this would be unlikely to reflect best practice and would likely compromise the health and safety of residents. She said that she determined, as did the risk management committee of the respondent, to apply the ban having regard to the duty of care which she understood that the respondent owed to its residents, and taking into account various government requirements.
It was put that a blanket ban was particularly unreasonable in the case of Ms Petrou as she was not an aged person but a disabled person. A blanket ban may have been reasonable if applied only to the aged, but not if it was applied, as in this case, to a younger person.
It was suggested that an individualised assessment of clinical justification and risk was required for each person who wished to use a bed pole. Allied to this was a suggestion that the policy was unreasonable because it was applied to the applicant without taking into regard reviews by physiotherapists and the recommendations about the use of the bed pole, primarily by Joelene Ng and Claire Souter. It was said that those assessments demonstrated that Ms Petrou needed a bed pole and that the risk to her arising out of use of that bed pole was low.
In response to that argument, the respondent referred to several cases in which blanket policies had been held to be reasonable.
The respondent reminds me that the test is not whether there may have been a better choice available or indeed even whether the requirement was the only appropriate response to the situation at hand just because a different requirement could have been adopted does not make the requirement under consideration unreasonable just for that reason. It is a matter of looking carefully at all of the circumstances and not just to the circumstances of the applicant. It must be assessed with the interests of all persons that the requirement will affect.
The issue of reasonableness also does not require a Judge to have an expert appreciation on the practical requirements of each workplace at which the requirement under consideration is to be imposed.
There are many relevant passages to which I was directed in two tribunal decisions, and two corresponding appellate, all relating to the same application by a Hansard worker in state parliament by the name of Mrs Schou. (State of Victoria v Schou[2001] VSC 321; (2001) 3 VR 655, and State of Victoria v Schou (No 2) [2004] VSCA 71; (2004) 8 VR 120).
In that case the complainant was a sub editor of Hansard in the State Parliament. Sub editors were required to work at Parliament House. She sought to be able to work from home so she could care for her sick child. Her employer refused this request.
She argued that she had been indirectly discriminated against in contravention of section 9 of the Act. The requirement in question was a requirement that sub editors personally attend Parliament House to do their work, and not be permitted to work from home.
Schou argued that this requirement was not reasonable because there was an alternative available. A modem line and fax machine could have been installed between her home and Parliament House. These two devices would have enabled her to work as a sub editor via the modem when Parliament was sitting.
This Tribunal had found that the requirement was not reasonable, relying upon the fact that the employer had not made any serious attempt to install the modem, and specifically finding that the modem proposal would, if implemented have itself constituted a practical alternative to the requirement for the complainant to work at Parliament House.
The two decisions of Schou are very interesting because they demonstrate clearly a completely different approach to the requirement of reasonableness as between the Tribunal member at the first instance and the Judge in the Supreme Court on appeal and then the Vice President at the hearing of the application when it was referred back to the Tribunal, and the Court of Appeal which determined an appeal against the decision of the Vice President.
Both the Member who initially heard the case and the Vice President of this Tribunal held that because the modem proposal was a reasonable alternative for the worker in her own circumstances, then this reflected on the reasonableness of the requirement itself, as that term was used in the Act.
In dealing with this issue sitting in the first appeal, Justice Harper said this at paragraph 41: