Shanahan v Western Sydney Local Health District

Hearing of the application for interim orders

1. Dr Shanahan attended the hearing on 25 September 2018 with his care worker. WSLHD was represented by its solicitor, and two officers of WSLHD. In response to the application for interim orders the respondent WSLHD had provided to Dr Shanahan and to the Tribunal on 24 September 2018 an affidavit (and annexures) sworn by Mr Matthew Pearson on 24 September 2018. At the hearing Dr Shanahan stated that he had not had time to properly consider the affidavit or the annexures. He declined an adjournment. Directions were made at the conclusion of the hearing for Dr Shanahan to make written submissions in response to the affidavit and annexures and to the written submissions handed up by WSLHD's representative at the hearing, by 2 October 2018, with WSLHD to advise by 5 October 2018 if it wished to make any submissions in response to Dr Shanahan's submissions.
2. Dr Shanahan provided submissions on 2 October 2018. On 4 October 2018 WSLHD requested an opportunity to make further submissions and provide a further short affidavit of Mr Pearson in response to three matters raised by Dr Shanahan in his written submissions. Leave was granted for the respondent to do so by 9 October 2018, with Dr Shanahan to provide any further submissions in reply by 11 October 2018. Further submissions and a second affidavit by Mr Pearson dated 8 October 2018 were provided on 9 October 2018. Dr Shanahan provided further submissions on 11 October 2018.

Dr Shanahan's case

1. The documents provided by Dr Shanahan with his application to the Tribunal include a copy of his complaint to the ADB dated 4 June 2018; an Incident Log on WSLHD letterhead for the period 13 February 2016 to 22 August 2018 recording 100 incidents; minutes of a meeting between Dr Shanahan, his care worker, and WSLHD staff on 13 August 2018 to discuss Dr Shanahan's request for the door to the treatment room to remain closed while he is in the room; correspondence between Dr Shanahan and officers of the ADB including letters dated 19 July 2018 and 8 September 2018 addressing responses by WSLHD to his complaint; and a copy of a WSLHD Management Plan dated 1 June 2018.
2. At the hearing Dr Shanahan provided a copy of a report by Naomi Iliffe, Psychologist, dated 20 August 2018, which notes the assessment by Dr Susan Holliday, Psychiatrist, for the purposes of Dr Shanahan's NDIS assessment, and her diagnosis of his mental health conditions. Ms Iliffe states that Dr Shanahan "presents with some sensory sensitivities".
3. Dr Shanahan gave sworn oral evidence at the hearing. He confirmed that he receives haemodialysis three days a week, on Monday, Wednesday and Friday. He is there from 8.30am to 2.00pm, and the treatment takes about 5 and a half hours. The door to the treatment room is open for staff to come in when he is hooked up, if something goes wrong during treatment, when morning tea and lunch are delivered, and at the end of the treatment. The door is opened approximately four or five times, for a total of 40 minutes. The door has a glass panel for staff to observe. He needs to have the door closed for his sanity. He disputes that the doors are totally soundproof.
4. Dr Shanahan's written submissions in response to the affidavit of Mr Matthew Pearson sworn on 24 September 2018, and to the respondent's written submissions provided to Dr Shanahan at the hearing, were in summary as follows: 1. He never perpetrates aggressive, violent or abusive behaviour towards hospital staff, and denies being a risk to any person; 2. The WSLHD assessment is based on an Incident Log the details of which consists of complaints and allegations about him which have never been investigated, and in respect of which he has never been asked to respond; 3. He has been denied natural justice as his accusers have not been identified, and the substance of the allegations has not been put to him; 4. The door to the treatment room readily opens outwards allowing staff to exit easily if need be and there is always a line of sight into the room; 5. The intruding noise pollution from the ward is extremely stressful and stressing to him so even the time frame of 40-50 minutes with the door open can seem like an eternity of mental torture to him; 6. The door used to be shut while staff were attending to him so the proposed orders are necessary to return him to a position that existed previously; 7. If the orders are not made he would suffer irreparable inconvenience or injury as the significant noise-induced stress would be ongoing indefinitely, and conversely if the orders are made the respondent would incur no injury or inconvenience because he poses no risk to safety; 8. While he is being hooked up to or taken off the dialysis machine a second nurse as well as his carer are always present as witnesses, and he has granted permission for the respondent to make audio recordings of whatever he verbalises during these aspects of his treatment; 9. The behaviour asserted by the respondent is alleged and has not been established as factual; 10. At no time has there been consultation or discussion with him about his alleged behaviours.
5. In his written submissions Dr Shanahan makes detailed comment on each of the annexures to Mr Pearson's affidavit, being the Incident Log, the Management Plan, the Incident Detail records for September 2018, and the safe work practice document of June 2016 for staff dealing with Dr Shanahan.
6. In his further submissions dated 11 October 2018 Dr Shanahan responds to Mr Pearson's affidavit of 5 October 2018, stating: 1. There was a dedicated process where the door to the treatment room was routinely closed while he received treatment from a staff member, as confirmed in a letter from the Chief Executive of WSLHD to the ADB of 11 July 2018 in which it is stated "For a period of time, staff were closing the door at Dr Shanahan's request as he was connected and disconnected from dialysis"; 2. Closing the door is required to minimise noise-induced stress to him and to render optimal his health care; 3. There is a clear line of sight into the room with the door fully shut given the size of the door's glass pane and the room's window; 4. While sound is attenuated, conversations in the treatment room and the dialysis machine alarms can be heard with the door closed.
7. His response to the respondent's further submissions is that: 1. Granting the orders would reinstate the status quo of prior circumstances; 2. There is always a second staff member and his carer in the room; 3. The status of the treatment room door cannot thwart any incident, but its closure would alleviate as much as practicable him becoming upset by intruding noise pollution; 4. The behaviour on which the respondent relies is alleged and has not been established as factual, and he is unaware of any evidence supporting the Incident Log's enumerated allegations; 5. He poses no risk, real or potential, and he never experiences any interpersonal difficulties in other life circumstances; 6. The adverse effect of noise pollution on him exacerbates the risk of him becoming upset in the presence of hospital staff.

The Respondent's case

1. The respondent opposes the proposed orders, on the grounds that: 1. they do not fall within the scope and jurisdiction of s 105 of the AD Act, and 2. in the alternative, on the balance of convenience, the making of the orders would impose an arrangement on the respondent that compromises its ability to provide a safe working environment for staff.
2. On the first ground, the respondent submits that the proposed orders do not fall within the scope of s 105 because: 1. They do not reflect the "status quo" and on the contrary reflect the final position sought by Dr Shanahan in his complaint; 2. The proposed orders are not necessary to preserve the rights of Dr Shanahan, who continues to receive treatment. If the orders are not made, no irreparable damage would flow to Dr Shanahan and he would continue to receive treatment. If the orders are made, the respondent would be compelled to adopt measures contrary to the risk management plan and safe working practices developed to address risks arising from Dr Shanahan's behaviour; 3. The proposed orders are not necessary to return Dr Shanahan to any position that existed before the alleged contraventions, as the respondent has not at any time implemented a process whereby Dr Shanahan receives haemodialysis treatment in the manner set out in the proposed orders; and 4. The proposed orders are at odds with the risk management plan and safe work practices implemented by the respondent to address risks arising from Dr Shanahan's behaviour.
3. The respondent submits that the principles applicable to interlocutory injunctions are relevant as providing useful guidance when considering interim orders under s105. In that regard: 1. it accepts that there is a serious question to be determined in respect of the substantive complaint and there is considerable disagreement as to the facts of the complaint; and 2. if the orders are not made Dr Shanahan would continue to receive haemodialysis treatment in the manner he currently does, so this would not result in a material or irreparable inconvenience or injury, whereas if the orders are made the respondent would be required to implement a practice at odds with the risk management plan and safe work practices in place.
4. In its further written submissions dated 9 October 2018 the respondent submits that: 1. despite the door to Dr Shanahan's treatment room being kept closed on occasion that does not represent the "status quo" for the purposes of s105 of the AD Act; 2. the respondent's focus is to implement risk management measures that mitigate the impact of Dr Shanahan's behaviour on staff and others; 3. the respondent relies on the Incident Log as evidence of the nature and number of reports that have been raised regarding Dr Shanahan's behaviour and his treatment.
5. The respondent relies on the evidence of Mr Matthew Pearson, Violence Prevention Program Manager, Risk Management Unit at WSLHD. Mr Pearson provided two affidavits, and gave oral evidence.
6. Mr Pearson's affidavit of 24 September 2018 annexes a copy of the Incident Log; the Management Plan dated 1 June 2018; details of incidents recorded on 10 September 2018, 12 September 2018; and a photograph. The copy of the Incident Log annexed to the affidavit covers the period to 6 July 2018, recording 97 incidents. On 4 October 2018 the respondent provided a complete version of the Incident Log, which covers the same period as the copy provided by Dr Shanahan with his application, that is, 13 February 2016 to 22 August 2018 (100 incidents).
7. In his affidavit of 24 September 2018 Mr Pearson states that his position involves administering a program aimed at preventing violence (including verbal and physical abuse) in WSLHD facilities, and his role involves reviewing incidents of aggressive and violent behaviour and developing and implementing strategies to prevent and reduce the impact of behaviour from patients and visitors. He records that Mr Shanahan has been receiving haemodialysis treatment at WH since 2016. Since 2016 there have been complaints from patients and staff regarding the behaviour of Dr Shanahan and since 2017 he has convened regular meetings to review reported incidents and discuss appropriate management strategies. Reports of incidents involving Dr Shanahan's behaviour are recorded in the Incident Log. Dr Shanahan's inappropriate behaviour has varied thematically and in terms of severity at various times since the commencement of the Incident Log, and an escalation of Dr Shanahan's behaviours has been reported since 10 September 2018, including behaviours of screaming, yelling and swearing resulting in patient complaints and a staff member withdrawing from their engagement with WH. WSLHD has implemented control measures to mitigate the impact of Dr Shanahan's behaviour. Mr Pearson provides details of the risk management measures implemented over the last 12 to 18 months, including most recently the Management Plan dated 1 June 2018 which consolidates the various control measures in place. That plan includes keeping the door to the treatment room open while staff are in the room providing treatment, to allow a line of sight into the treatment room and ease of egress for staff.
8. Dr Shanahan is treated in one of four single patient rooms on ward A6b which are predominantly used for patients with varying levels of infectious risks. The door does not need to be closed for infection control risks. The current arrangement under the Management Plan is for the door to be open while Dr Shanahan is placed onto dialysis, and once this is completed the door is closed until completion of treatment unless Dr Shanahan buzzes for assistance or the dialysis machine alarms or staff need to check on Dr Shanahan. The door to Dr Shanahan's treatment room is closed for the majority of his treatment time and is only in the open position while staff are inside the treatment room.
9. Mr Pearson states that due to the volume and nature of reported incidents involving Dr Shanahan the hospital does not require staff to close the door to the treatment room while they are administering treatment to Dr Shanahan. Dr Shanahan's documented behaviours represent ongoing risks to staff, patients and visitors and WSLHD response and management. The hospital is concerned that if the treatment room door is closed at all times while staff and Dr Shanahan are inside, or kept slightly ajar, it is possible that staff may refuse to provide care to Dr Shanahan; that absent consultation, risk assessments and implementation of further control measures, WSLHD would not be in a position to compel unwilling staff to provide Dr Shanahan with treatment with the door closed or slightly ajar; that WSLHD would need to determine whether alternative risk management controls could be implemented in order for WSLHD to comply with its duties under the Work Health and Safety Act 2011; and that if a further incident involving Dr Shanahan were to occur that could result in detrimental impacts on staff or others affected by Dr Shanahan's behaviour.
10. In cross-examination Mr Pearson stated there had been attempts to discuss informally with Dr Shanahan the incidents recorded in the Incident Log. He agreed that the Incident Log records descriptions of incidents by hospital staff. Because the treatment rooms are used for patients with infection risks, the doors are heavy and sealed when closed, and soundproof. If left ajar there would be issues for access and egress, and also sound.
11. In his second affidavit sworn on 5 October 2018 Mr Pearson states that: 1. WH has never implemented a dedicated process where the door to the treatment room is routinely closed while Dr Shanahan receives treatment from a staff member; 2. It is not ordinary practice for staff members to close the door behind them, except in the case of airborne precautions for infection control purposes which are not applicable to Dr Shanahan's care; 3. The practice of leaving the door to Dr Shanahan's treatment room open while he is treated by staff does not depart from usual practice adopted at WSLHD for single patient treatment rooms, except in the case of airborne precautions for infection control purposes which are not applicable to Dr Shanahan's care; 4. The line of sight into the treatment room is obstructed by having the door closed, and it is more difficult to hear inside the treatment room when the door is closed because the treatment room is relatively well insulated and has its own ventilation system for infection control purposes; 5. Some single patient treatment rooms used for infection control purposes have signs requiring the door to be closed at all times; and 6. The sign has been removed from the door of the treatment room used by Dr Shanahan as it is not necessary for infection control purposes and its instruction is not consistent with the Management Plan.

Consideration

1. In Dhillon v Rail Corporation of NSW [2009] NSWADTAP 63 the Appeal Panel said: 18 In our view, when determining whether or not to make an interim order, the Tribunal should examine the connection between the form of interim relief, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action. This thinking was encapsulated by N Rees, K Lindsay and S Rice, in Australian Anti-Discrimination Law, Text, Cases and Materials, the Federation Press, 2008, at p 690, where the two overlapping purposes of s 105 (and similar provisions throughout Australia) were identified as: . . .first, to ensure that the processes established by law to deal with complaints of unlawful discrimination are not rendered ineffective as a result of conduct by one of the parties which may make it difficult or impossible for a court or tribunal to grant an appropriate remedy if a complaint is substantiated and, secondly, to protect or preserve those rights of a party which, in the absence of an interim restraining order, may be irreparably damaged as a result of the inevitable delay in processing a complaint.
2. The Appeal Panel considered the meaning of "rights of the parties" in s 105(1)(b), noting that the "right" referred to will often be the "right" which the applicant seeks to vindicate at the hearing; and if that right may be destroyed, or substantially impaired, between the application and the final determination of the proceedings, an interim order may be justified: at [19]. As to the meaning of "status quo", the Appeal Panel concluded that that may be the state of affairs that existed at some time other than at the time the application for interim relief was made: at [23]. The Appeal Panel concluded: 25 Conclusion. Assuming the Appellant's interpretation of this passage is correct, it raises the issue of the relationship between s 105(1)(a), (b) and (c). Although each of those matters is expressed in the alternative, the Tribunal does not have power 'at large' to make interlocutory orders to preserve any state of affair or every legal, equitable or statutory right a party to a complaint of discrimination may have. The power is limited by the language and purpose of s 105 to making orders affecting or relating to the statutory rights of the parties under the AD Act. The application must be for one of the purposes identified at [18] above and there must be 'an appropriate connection between the form of interim relief that is sought, the danger or damage that is sought to be averted by the interim relief, and the final relief which is claimed in the action': Smith v University of Ballarat (2006) 229 ALR 343; [2006] FCA 148 at [24].
3. As noted in Dhillon at [12], while the power of the Tribunal to grant interim relief is not subject to any limitation which is not strictly required by the language and purpose of the AD Act, the principles applicable to interlocutory injunctions provide useful guidance. Those principles are first, whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; and secondly whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted: Australian Broadcasting Commission v O'Neill (2006) 227 CLR 57; [2006] HCA 46
4. The High Court has emphasised that there is no inflexible rule as to the extent to which the legal merits of a case must be examined before determining whether to make an interim order: Australian Broadcasting Commission v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at [18]. It depends on the nature of the dispute.
5. In his complaint to the ADB Dr Shanahan records his distress caused by noise, on account of his diagnosed conditions, and the violation of his privacy by having the door open, which he describes as discriminatory and negligent with tangible medical effects, as his blood pressure rises after treatment rather than falling, due to the stress and aggravation. He details specific instances of nursing staff behaviour to him; unwelcome visits by administrative or non-medical hospital staff who have acted towards him in a bullying, threatening and intimidatory manner; and refusal of kitchen staff to serve him morning tea and lunch in his room. He responds in detail to statements in, and requirements of, a number of provisions in the Management Plan.
6. In the response to the ADB dated 11 July 2018 WSLHD denies that Dr Shanahan has been subjected to discrimination on the grounds of disability, bullying or harassment; and maintains that the measures in the Management Plan are reasonable and necessary.
7. Dr Shanahan asserts that the requirement that the treatment room door be open while staff are in the room discriminates against him on the ground of his disability, namely his mental health conditions. Section 49M(1) of the AD Act states that it is unlawful for a person providing goods or services to discriminate against a person on the ground of disability by refusing to provide those goods or services, or in the terms on which those goods or services are provided. Discrimination may be direct, as defined in s 49B(1)(a) of the AD Act, or indirect, as defined in s 49B(1)(b). The latter circumstance is where the person with a disability is required to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case. In the circumstances of Dr Shanahan's complaint, and given the response to it by WSLHD, the reasonableness of the requirement to have the door open is likely to be a relevant factor in determining whether Dr Shanahan can establish that WSLHD has discriminated against him on the ground of his disability.
8. WSLHD is aware of Dr Shanahan's mental health conditions, although it appears that formal confirmation is relatively recent. In a letter to the ADB dated 11 July 2018 Mr O'Connor, Chief Executive WSLHD, states that Dr Shanahan has stated to staff that he suffers from mental health conditions; the particular diagnoses were not disclosed until 8 September 2017 when Dr Shanahan advised of the formal diagnosis by Dr Holliday and his ongoing treatment from a private psychologist. The minutes of the meeting on 13 August 2018 to discuss the request for the treatment room door to be closed at all times record that Dr Shanahan stated that he could provide written information about his mental health diagnoses. Based on the description of that information the Tribunal understands that the statement by Ms Iliffe dated 20 August 2018, provided by Dr Shanahan at the hearing, is the information to which Dr Shanahan was referring. Based on that exchange, and acknowledging the limited evidence available, the Tribunal finds that WSLHD has been aware of Dr Shanahan's mental health conditions but not formally on notice of what they were until September 2017, confirmed in August 2018.
9. There is considerable disagreement as to the facts, in particular the matters recorded in the Incident Log which are vigorously disputed by Dr Shanahan, and whether the WSLHD response, including in the form of the Management Plan, is appropriate to the degree, if any, of risk posed to staff and others by Dr Shanahan.
10. It is not necessary for the Tribunal to address in detail Dr Shanahan's response to the matters recorded in the Incident Log, or to reach a conclusion as to the alleged conduct, or the respondent's responses to it. The Tribunal should not attempt to resolve conflicts of evidence at this stage: Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 at 622. The Tribunal accepts that the Incident Log records complaints made to WSLHD by staff and patients regarding the behaviour of Dr Shanahan, including verbal abuse and aggression, yelling, and refusal to comply with hospital procedures including wearing an ID armband and identifying himself before administration of oral analgesia. Dr Shanahan disputes that the incidents occurred and is aggrieved by what he contends is a failure to allow him to respond to those complaints. The Tribunal accepts that Dr Shanahan disputes that he is a risk to staff or others and contends that he should have had an opportunity to respond to the matters recorded in the Incident Log. The Tribunal accepts that the approach adopted by the respondent, as expressed in Mr Pearson's evidence, has been to respond to the complaints by implementing risk management measures, which have changed over time, that allow Dr Shanahan to continue to receive treatment.
11. On the limited evidence available there is no reason to dispute the respondent's acceptance that there is a serious question to be determined in respect of Dr Shanahan's complaint. The respondent accepts that there is likely to be some complexity in responding to the legal elements of Dr Shanahan's complaint.
12. As to the balance of convenience, Dr Shanahan's case is that if the orders are not made, as a consequence of the door being open the noise pollution exacerbates his existing mental conditions such that damage to him would become irreparable, and that if the orders are made, there would be no real or potential injury to the respondent. The respondent disagrees, submitting that if the orders are made it would be required to implement a practice that is at odds with the risk management plan and safe work practices in place, and WSLHD staff who provide care and treatment to Dr Shanahan would be most impacted. The Tribunal accepts based on the report of Naomi Iliffe that Dr Shanahan has diagnosed mental health conditions, and that he has sensory sensitivities, and accepts Dr Shanahan's evidence that the noise he experiences in periods when the treatment room door is open is extremely distressing to him. The Tribunal also accepts, based on Mr Pearson's evidence, that the risk management strategies and practices documented in the Management Plan reflect a considered response to WSLHD's concerns, based on the number and pattern of incidents recorded in the Incident Log, for health and safety of staff and others, and that as a consequence to make the orders sought may have detrimental impacts on the hospital and its staff.
13. There is a dispute between the parties as to whether having the door closed reflects the "status quo" for the purposes of s 105(1)(a) of the AD Act. Dr Shanahan states that for a period of time he dialyzed in a room with the door shut at all times. The respondent does not dispute that there have been times when Dr Shanahan received treatment from staff with the door closed. That is supported, as submitted by Dr Shanahan, by the statement in the letter of 11 July 2018 (provided to the Tribunal with Dr Shanahan's application) by the Chief Executive of WSLHD to the ADB that for a period of time staff were closing the door at Dr Shanahan's request as he was connected and disconnected from dialysis. That statement continues, "However, reports from staff indicated that when the door was closed Dr Shanahan's behaviour escalated". The documents provided with Dr Shanahan's application, which include the Safe Work Practice document created 23 April 2018 which includes a direction that the door to Dr Shanahan's room is to remain open while staff treat him, support Mr Pearson's evidence that a range of risk management measures have been implemented, and those measures have changed over time. The Tribunal accepts, based on the evidence of Mr Pearson, that the decision to have the treatment room door open at all times while staff are in the room is based on WSLHD's response to health and safety concerns reflected in the reports recorded since February 2016 in the Incident Log. In that context, the Tribunal is not persuaded that the present measures including that the door to the treatment room remain open while staff are in the room represent a change from a former practice that could be described as the status quo.
14. The Tribunal is not satisfied that even if Dr Shanahan's desire to avoid the distress caused by noise during the periods when the door is open during treatment can be characterised as a right, that given the limited number of times and duration that the door is required to be open it is a right that would be destroyed or substantially impaired by the time taken to have his complaint to the ADB considered and determined. Even if that conclusion is wrong, as stated in Dhillon at [25] the Tribunal does not have power under s 105 to make interlocutory orders to preserve any state of affair or every legal, equitable or statutory right that a party may have.
15. The proposed order sought by Dr Shanahan is part of, but not the totality of the remedies he is seeking in his complaint to the ADB. Dr Shanahan is not precluded from seeking on an interim basis an order which reflects the final order he is seeking in his complaint: McEwan v 365 Site Services Pty Ltd [2016] NSWCATAD 310.
16. Having regard to the purposes of s 105 as stated in Dhillon at [18], the Tribunal is not satisfied that the processes which Dr Shanahan has engaged by his complaint to the ADB would be rendered ineffective such that it would be difficult to grant an appropriate remedy if Dr Shanahan's complaint is substantiated. Further, the Tribunal is not satisfied that any right of Dr Shanahan requires protection or preservation to in order to avoid irreparable damage. While there may be, as accepted by the respondent, a serious question to be determined in respect of Dr Shanahan's complaint, the Tribunal is satisfied that the likely detrimental impacts on the hospital and its staff if the orders are made are such that the balance of convenience lies with the respondent. The Tribunal is not satisfied that an order under s 105 of the AD Act in the terms sought by Dr Shanahan should be made.

Orders 1. The application for interim orders under s 105 of the Anti-Discrimination Act 1977 is dismissed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2018