The Applicant's submissions concerning section 102 of the ACT
Ms Whenan provided written submissions and made oral submissions to the Tribunal at the preliminary hearing.
The Tribunal summarises Ms Whenan's written submissions.
Ms Whenan disputed that the hospital disability toilet facilities met the Australian standards for design and mobility. She disputed that the staff were unaware that Mr Mahony was in urine-soaked clothing when he attended on 12 November 2019. She had informed the staff of this. The high low bed had only been provided to Mr Mahony after the staff had been told three times that he could not use the bed in the treatment room. Mr Mahony's treatment had not been in accordance with standard protocols and procedures for nursing practices and inception into subacute areas for treatment.
On 3 January 2020, his treatment did not comply with the Waterlow assessment tool for pressure sores; Mr Mahony was incorrectly assessed as not being a falls risk and his catheterisation had not complied with protocols. Mr Mahony had been discriminated against because other patients' needs were pre-empted and accommodated in order to give them access to a bed with steps available. Mr Mahony's need for a high/ low bed had not been accommodated. He had been treated less favourably than others at assessment in that he should have been sent directly to the acute area. This had all been done on the ground of a characteristic of a person with his disability of multiple sclerosis. The characteristic was severe leg weakness, poor truncal control and balance; urinary retention and overflow because of bladder problems. It was also a characteristic that he needed carers and a wheelchair.
The relative comparator was any male who presents to the emergency department with urinary retention and overflow, who cannot climb onto a high bed without assistance and who was not badgered to do so. Other people were provided with steps which they could use, but the staff had objected to Mr Mahony's requests for a high/low bed. The attending nurse had chosen not to listen to either Ms Whenan or Mr Mahony about his needs. This led to him being directly discriminated against in requiring him to get onto the bed without the appropriate assistance.
On 3 January 2020, staff had not assessed Mr Mahony correctly. Accordingly, staff had not followed the correct practices and had not met his needs. Therefore, he had been treated in a discriminatory way. The Respondent had alleged that there was no evidence that Mr Mahony had been left in urine soaked clothing. However, it was clear that this had occurred, and he had been directly discriminated against on this basis.
Ms Whenan said that the complaint should not be dismissed because it was not frivolous or vexatious. Mr Mahony had been discriminated against on the ground of his assumed disability because he was obviously physically disabled as he was sitting in a wheelchair and he had a carer with him.
[2]
Statutory framework: unlawful discrimination in the provision of goods and services
The relevant sections defining unlawful discrimination on the grounds of disability in the provision of goods and services are sections 49M and 49B.
Section 49M makes it unlawful to discriminate against a person by refusing to provide the person with services or in the terms on which they provide the person with services - on the grounds of the person's disability.
49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability--
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
"Disability" is defined to include the malfunction, malformation or disfigurement of a part of a person's body - see s 4 of the Act.
It was not contested before the Tribunal that Mr Mahony has a disability. The Tribunal understands and accepts for the purpose of considering this application that Mr Mahony has a diagnosis of Multiple sclerosis. Amongst other matters, Mr Mahony experiences a malfunction of part of his body which results in a mobility disability and urinary problems.
It was not contested that the respondent to the complaint was providing services to Mr Mahony at Royal North Shore Hospital within the meaning of Section 4 of the Act.
Section 49B of the Act sets out what constitutes discrimination on the ground of disability both directly (49B(1)(a)) and indirectly 49B(1)(b)):
49B What constitutes discrimination on the ground of disability
(1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator:
Direct discrimination
49B (1) (a) on the ground of the aggrieved person's disability ..., 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
Indirect discrimination
49 B (1) (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, ..., comply or are able to comply, being a requirement, which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
Section 4A of the Act provides that to establish unlawful discrimination the unlawful reason need only be one of the reasons. See Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 .
[3]
Direct discrimination
To establish a complaint of "direct discrimination" the complaint must allege :
1. That Mr Mahony was refused a service or that the service was provided on less favourable terms - on the grounds of his disability.
2. That the Northern Sydney Local Health District treated Mr Mahony less favourably,
3. in the same or similar circumstances, than it treated, or would have treated a person who did not have a mobility disability (the comparator); and
4. That one of the reasons for that less favourable treatment was because of his presumed disability, a characteristic that generally appertains to, or is generally imputed to persons with his particular disability (causation). The section refers to "on the ground of". The "true reason" or "real reason" is a common construction of these words.
[4]
Indirect discrimination
If any of the events were cast as an indirect discrimination complaint it would be necessary for the complaint to allege that the Northern Sydney Local Health District required Mr Mahony to comply with a requirement or condition with which a substantially higher proportion of persons who do not have his disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which Mr Mahony did not or was not able to comply.
For the purpose of this analysis, the Tribunal hypothetically accepts that the unfortunate events alleged on 12 November 2019 and 3 January 2020 occurred.
[5]
Refusal of service
The complaint does not allege that Mr Mahony was refused services by the Respondent as set out in section 49M on 12 November 2019. The account sets out that Mr Mahony was treated on each of the attendances at Royal North Shore Hospital. The complaint centres on what Ms Whenan considers to be the unsatisfactory manner in which Mr Mahony was provided services - such as being inappropriately assessed; being left in urine soaked clothing and in a soiled nappy; and having to request 3 times that he be provided with a high/low bed.
The complaint alleges that Mr Mahony was refused specific services on 3 January 2020 - the failure to recognise, assess and treat his pressure sores. However even if the Tribunal were to accept this as an allegation of refusal of service, there is no evidence offered that one of the reasons for this was Mr Mahony's disability.
[6]
Discrimination in the terms on which the Respondent provided the person with services.
The complaint alleges that on 3 January 2020 Mr Mahony was treated less favourably in the terms that services were provided to him under section 49M, because he was triaged into a subacute area and he did not comply with the terms for assessment and treatment in this area. He had received less favourable treatment. He was unable to comply because contrary to hospital criteria he was directed to assessment in the fast lane.
The Applicant submitted that Mr Mahony had been treated less favourably than others at assessment in the terms on which he was provided with a service in that he should have been sent directly to the acute area. A complaint that Mr Mahony had been discriminated against directly requires a comparison to be drawn between the treatment afforded Mr Mahony and the treatment that was afforded, or would have been afforded, to a person with substantially the same condition, in the same or similar circumstances to Mr Mahony. The Applicant did not provide evidence that a person who did not have Multiple Sclerosis would have been treated differently presenting at the hospital in the same condition as Mr Mahony. The Applicant did not provide any evidence that the failure to direct Mr Mahony to an acute area occurred on the ground of Mr Mahony's diagnosis of Multiple Sclerosis. There was no evidence provided to suggest that the true or real reason for the events complained of was Mr Mahony's diagnosis of Multiple Sclerosis.
The Tribunal is not satisfied by this allegation that the complaint can be supported by evidence that Mr Mahony was treated less favourably in the terms on which he was provided a service by being triaged into a subacute area on 3 January 2020 on the grounds of disability.
Ms Whenan alleged that Mr Mahony had been discriminated against on the ground of his assumed disability because he was obviously physically disabled as he was sitting in a wheelchair and he had a carer with him. However, the Applicant's argument did not link this apparent disability as the real or true reason for any of the unfavourable treatment such as being directed to the wrong area; having difficulty accessing the disability toilet; being left in urine soaked clothing or not having a nurse assist to change Mr Mahony into a hospital gown.
The Tribunal understands that Ms Whenan was concerned amongst other things about the manner in which services were provided to Mr Mahony. In the matter of Kitoko v Sydney Local Health District [2017] NSWCATAD 209, the Tribunal noted that the expression "the terms on which the services (were provided)" and the corresponding provisions relating to other grounds of discrimination did not extend to the manner in which a service is provided: see for example, Turner v State Transit Authority [2004] NSWADT 89 at [59] to [77]; Colgar v Curtin [2013] NSWADT 255.
[7]
Indirect discrimination
The Applicant expressed the failure to triage/assess Mr Mahony and direct him to an acute area as an indirect discrimination complaint. The Applicant alleged that Mr Mahony was treated less favourably in the terms that services were provided to him under section 49M because he was triaged into a subacute area and he did not comply with the terms for assessment and treatment in this area. He had received less favourable treatment. He was unable to comply because contrary to hospital criteria he was directed to assessment in the fast track lane.
However, an indirect discrimination construction of this event requires that the Applicant allege that the Northern Sydney Local Health District required Mr Mahony to comply with a requirement or condition (being directed to the sub-acute/fast track area) with which a substantially higher proportion of persons who do not have Multiple Sclerosis, comply or are able to comply, being a requirement, which is not reasonable having regard to the circumstances of the case. There was no evidence offered in the complaint of whether a person without Multiple Sclerosis could have been treated effectively in the sub-acute/fast track area.
[8]
Causation and direct discrimination
The Applicant did not provide any evidence that any of the unfortunate events occurred on the ground of Mr Mahony's diagnosis of Multiple Sclerosis. That is there was no evidence provided to suggest that the true or real reason for the events complained of was Mr Mahony's diagnosis of Multiple Sclerosis. No evidence was offered that a person who did not have Multiple Sclerosis would have been treated differently presenting at the hospital in the same condition as Mr Mahony.
The Tribunal is satisfied that the complaint does not allege direct discrimination on the ground of Mr Mahony's disability. The Tribunal is satisfied that the complaint does not allege indirect discrimination on the ground of Mr Mahony's disability - no requirement has been identified nor does the complaint deal with the capacity of persons without Mr Mahony's disability to comply with such a requirement.
This Tribunal is not satisfied that a complaint under section 49M could be made out by the alleged facts. The Tribunal is not satisfied that the complainant's allegations set out a refusal of services or that Mr Mahony was provided with services on less favourable terms on the grounds of his disability.
On these bases, the Tribunal is satisfied that the complaint does not disclose a contravention of the Act and could be dismissed under section 102.
[9]
Should the Tribunal dismiss the complaint ?
Section 102 of the Act provides that the Tribunal may dismiss a complaint at any time if the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of the Act or the regulations.
The power to dismiss a complaint under s 102 must be exercised with extreme caution: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 at [24]. The Tribunal's approach has been to take the facts alleged to constitute discrimination and consider whether that fact set reveals an arguable case that the Respondent should answer: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]- [26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].
The power to dismiss a complaint should be exercised with caution especially when it is sought to dismiss a complaint prior to the giving of evidence. The Tribunal notes that in this matter, however, the complainant has provided a detailed account of what occurred. Much of the account is not contested. The predominant question is whether what is alleged to have occurred amounts to unlawful discrimination.
In this matter the complaint does not allege that Mr Mahony was refused services. Nor are there discriminatory terms identified accompanying the provision of services.
The complaint sets out concerns about the manner in which services were delivered. However, the manner of service provision is not covered by the Act.
The complaint sets out concerns about poor clinical standards of the services. Mr Mahony and Ms Whenan had difficulty using the designated disability toilet. However, none of these matters were expressed to be caused by Mr Mahony's diagnosis of Multiple Sclerosis. Nor were they expressed to be as a result of a requirement set out by the Respondent with which a greater proportion of people without Mr Mahony's disability were able to comply.
The Tribunal understands that the Applicant considers that Mr Mahony received "less favourable treatment" . However, the definition of unlawful discrimination goes beyond establishing that there has been "less favourable treatment". It includes additional matters such as establishing that the treatment happened "on the ground of" disability. It is not sufficient for the purposes of the Act to show that Mr Mahony has a disability and that he was treated less favourably.
As noted, there are other avenues available to complainants who wish to complain about standards of treatment in the health system.
In the circumstances the Tribunal is satisfied that it should dismiss the complaint under section 102 as not disclosing a contravention of the Act.
[10]
Decision
For the reasons set out above the Tribunal determines that the application to dismiss the complaint under section 102 of the ACT, should be allowed.
[11]
Orders
1. The Tribunal dismisses the complaint under section 102 of the Anti-Discrimination Act 1977.
[12]
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: 31 March 2021
Section 102 of the Act provides that the Tribunal may dismiss a complaint at any time on a ground for which the President of ADNSW may decline a complaint under section 92 (1) (a) (i) or (ii) or (b) of the Act.
Section 92 sets out the reasons for which the President may decline a complaint.
Section 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) he 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…
When it decides whether to exercise the power to summarily dismiss a complaint, or part of a complaint, the approach taken by the Civil and Administrative Tribunal of NSW (NCAT) and one of its predecessor Tribunals, the NSW Administrative Decisions Tribunal, has been for the Tribunal to take the facts alleged to constitute discrimination and consider whether that fact set reveals an arguable case that the Respondent should answer: Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 at [27]; Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]- [26]; and Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38].
The power to dismiss a complaint under s 102 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. The need for the exercise of caution is even more apparent where, as in this case, the dismissal application is made prior to the adducing of Mr Mahony's evidence at the substantive hearing: Karekar v TAFE Commission of New South Wales [2000] NSWADT 187 at [36].
Direct discrimination
The Respondent contended that there was presently no evidence before the Tribunal which would support a finding of direct discrimination. In the event the applicant regards that they were treated adversely when compared to a non-disabled person in the same circumstances, that conduct is not discriminatory unless it can be established, on the balance of probabilities, that the reason for the conduct was their disability: Frost v TAFE NSW[2020] NSWCATAD 219 at [18].
The toilet facilities complied with the relevant standards, namely, the Building Code of Australia Part D3 - access for person with disability and Australian Standards 1428.1 - Design for access and mobility. Not only did the toilet facilities comply with these standards, the entire 9 levels of the acute building at the hospital where the emergency department was located, including the corridors within that building, complied with the Building Code of Australia Part D3 - access for person with disability and Australian Standards 1428.1 - Design for access and mobility. The hospital had provided certification documents to the ADNSW which supported this position.
There was no evidence that hospital staff were aware that the applicant was sitting in urine-soaked clothing and a nappy. The applicant's evidence was that when this was brought to the attention hospital staff a gown was provided and the applicant was assisted to change by an employed medical practitioner. In these circumstances, taking the evidence at its highest, the Tribunal would be unable to make any findings that the Act was contravened.
Additionally, in such a set of circumstances occurring with a non-disabled person, absent the hospital staff providing the patient with a gown or a fresh nappy, that person would also be left in their soiled clothing/nappy. There was no evidence that the applicant was left in this clothing/nappy on the grounds of his disability. There was no basis for a finding of any direct discrimination.