Colgar v Hardwick

[2013] NSWADT 254

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Colgar v Hardwick [2013] NSWADT 254
Hearing dates:	5 November 2013
Decision date:	12 November 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave is refused for the applicant's complaint of presumed disability discrimination to proceed.
Catchwords:	ANTI-DISCRIMINATION - whether fair and just for declined complaint of disability discrimination against doctor to proceed - whether doctor providing services to mother of 10 year old patient -
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Turner v State Transit Authority [2004] NSWADT 89 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Category:	Principal judgment
Parties:	Nezahat Colgar (Applicant) Robert Hardwick (Respondent)
Representation:	N Colgar (Applicant in person) Norton Rose Fullbright Australia (Respondent)
File Number(s):	131099

REASONS FOR DECISION

Introduction

1. Ms Colgar complains that from November 2011 to October 2012 Dr Hardwick, a consultant paediatrician, discriminated against her on the ground of a presumed mental illness. Ms Colgar attended Dr Hardwick's practice with her son, who is now 10 years old, on nine occasions during 2011 and 2012. Ms Colgar says that doctors have been influenced by Dr Hardwick's opinion that she has a mental illness and that has prevented her from accessing objective medical care for her son.

1. The President of the Anti-Discrimination Board declined the complaint as lacking in substance. Ms Colgar requested that it be referred to the Tribunal. She needs the Tribunal's permission before her complaint can go ahead: Anti-Discrimination Act 1977 (AD Act), s 96. Ms Colgar has the onus of persuading the Tribunal that it is fair and just for her complaint to proceed, keeping in mind the purposes of the AD Act: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143, per Schmidt AJ.

Background

1. Ms Colgar says she first contacted Dr Hardwick in March 2011. After the initial appointments Dr Hardwick referred her son for various tests. After obtaining the results, Ms Colgar says that in November 2011 Dr Hardwick, "made a decision in his mind" that "the mother is over anxious and may possibly have a mental disorder." While Ms Colgar does not say that Dr Hardwick ever said those words to her or to other doctors, she says he wrote that "the child has been seen by multiple specialists and many investigations have been done but nothing has been found."

1. From November 2011, Ms Colgar says that Dr Hardwick ignored her for 7 months and influenced other doctors to ignore her as well. While her son had four appointments with Dr Hardwick between November 2011 and May 2012, Ms Colgar says she had to seek the intervention of her general practitioner to arrange an emergency appointment in May 2012. At that time Ms Colgar says Dr Hardwick did a blood test and referred her son to a rheumatologist. According to Ms Colgar, Dr Hardwick telephoned the rheumatologist but the appointment did not take place. After November 2011, Ms Colgar says that the doctors she has gone to did not conduct adequate investigations of her son's symptoms. She attributes this to Dr Hardwick's influence.

1. On one occasion Ms Colgar says that Dr Hardwick said to her, "Your child is not more valuable than others, he has already been seen by many excellent doctors." On another occasion in October 2012 when the Mr Colgar went to his office and tried to talk to him, she says Dr Hardwick "threw her out" of his office saying, "I am not a counsellor, I am a paediatrician."

1. Dr Hardwick says that the Health Care Complaints Commission has investigated and dismissed similar complaints against him from Ms Colgar.

Issue

1. The issue is whether in all the circumstances it is fair and just for Ms Colgar's complaint to go ahead. In this case, that depends on the merits of the complaint. If Ms Colgar's complaint is highly unlikely to succeed, it would not be fair or just to allow it to go ahead. In order to determine whether her complaint has merit, I will identify and address each of the matters she would have to prove to substantiate the complaint.

The law and its application to this case

1. Section 49M makes it unlawful for a service provider to discriminate against a person by refusing services or in relation to the terms on which those services are provided.

(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.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

1. Section 49B defines disability discrimination:

(1) A person ("the perpetrator" ) discriminates against another person ( "the aggrieved person" ) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or 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..

1. To be unlawful the conduct must constitute either direct discrimination under s 49B(1)(a) or indirect discrimination under s 49B(1)(b). I understand Ms Colgar's complaint to be one of direct discrimination on the ground of a presumed disability, that is a mental illness.

1. Disability is defined in s 4 to include "a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour." Under s 49A(b) it also includes a disability that a person is thought to have (whether or not the person in fact has the disability). Ms Colgar denies that she has a mental illness.

1. In order to prove that any of the treatment about which Ms Colgar complains breaches s 49M of the AD Act, she would have to:

(1)   establish that her allegations against Dr Hardwick actually occurred;

(2)   identify the service that Dr Hardwick was providing to her and set out the ways in which that service was refused or provided on less favourable terms;

(3)   establish that Dr Hardwick treated her less favourably than he would have treated a person who he did not think had a mental illness in the same or similar circumstances (differential treatment); and

(4)   establish that at least one of the reasons for that treatment was her presumed mental illness (causation).

Proof of the allegations

1. Dr Harwick's lawyer sought to tender his clinical notes in relation to Ms Colgar's son. I did not accept that evidence because copies had not been provided to Ms Colgar in advance and I did not want to be unfair to her.

1. Dr Hardwick maintains that he treated Ms Colgar's son in a professional manner and did not ignore Ms Colgar's concerns. He denies sending any letter or email to a doctor at the Children's Hospital at Westmead saying that Ms Colgar has a mental illness. He denies ignoring Ms Colgar's concerns about her son's symptoms for 7 months. In fact, during that period he had several appointments with her son. On 31 October 2012, Dr Hardwick says that Ms Colgar became abusive and he asked her to leave his office. He told her that he would not be able to care for her son after that time.

1. The evidence Ms Colgar has to support her allegations is scant. While she agrees that Dr Hardwick had no direct relationship with the Children's Hospital at Westmead she maintains that he influenced doctors at the Hospital to ignore her. She related a conversation that she says she had with Dr Curtin, Clinical Senior Staff Specialist in the Haematology Department of Westmead Children's Hospital, during which she told her that Dr Hardwick had made a 'mistake'.

1. Ms Colgar's assertions about Dr Hardwick ignoring her and influencing other doctors to ignore her are based on speculation. Ms Colgar says that it is like the pieces of a puzzle that fit together. I understand her to mean that the tribunal may be able to draw inferences from certain facts that Dr Hardwick behaved as she alleges. But without any details of which doctors ignored her and how that could have any connection with something that Dr Hardwick did, it is unlikely that the tribunal would draw such an inference.

1. As the evidence stands, it is unlikely that Ms Colgar would be able to satisfy a tribunal of the factual basis for this allegation.

Identification of the service

1. Even if Ms Colgar could prove some or all of her allegations, she also has to establish that Dr Hardwick denied her a service or provided her with a service on unfavourable terms. The first step in that process is to identify the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.

1. Ms Colgar did not identify the service that Dr Hardwick was providing her. The complaint was brought by Ms Colgar in her own right, not on behalf of her son. The only reason Ms Colgar made appointments with Dr Hardwick was to treat her son. She was not Dr Hardwick's patient nor did he provide her with any service that Ms Colgar was able to identify. In those circumstances it is likely that if the matter were to proceed to a hearing the tribunal would find that Dr Hardwick was not providing Ms Colgar with a service. If he was not providing her with a service he cannot have refused to provide that service or provided it on unfavourable terms. I note that Ms Colgar does not complain about Dr Hardwick refusing to continue to see her son.

Differential treatment

1. If Ms Colgar could prove that Dr Hardwick was providing her with a service, she would then have to go on to establish that he treated her less favourably than he would have treated a person whom he did not think had a mental illness in the same or similar circumstances (differential treatment). There is no direct evidence that Dr Hardwick thought Ms Colgar had a mental illness but it is likely that a tribunal hearing this case would make a finding to that effect. The only treatment about which Ms Colgar has some evidence is the allegation that Dr Hardwick said, "Your child is not more valuable than others, he has already been seen by many excellent doctors." On another occasion in October 2012 when the Ms Colgar went to his office and tried to talk to him, she says Dr Hardwick "threw her out" of his office saying, "I am not a counsellor, I am a paediatrician."

1. To amount to discrimination the treatment must be the refusal of a service or the provision of a service on 'less favourable' terms. There is authority for the proposition that the manner in which a person is treated while being provided with a service does not constitute the refusal of a service or the provision of a service on unfavourable terms: Turner v State Transit Authority [2004] NSWADT 89. It is possible that a tribunal hearing this matter would apply that reasoning to this case. That would be additional reason for its dismissal.

Causation

1. Finally, Ms Colgar would have to establish that at least one of the reasons for the alleged treatment was her presumed mental illness (causation). In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court has confirmed that the test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus was on the "true basis", the " genuine basis" (Gleeson CJ at 102), or the " real reason" (per McHugh & Kirby JJ at 144).. While it is likely that a Tribunal would find that presumed mental illness was one of the reasons for the treatment, the likelihood of Ms Colgar establishing the other elements of her claim as addressed above, are so slight that it is not fair or just for the complaint to proceed.

Order

Leave is refused for the applicant's complaint of presumed disability discrimination to proceed.

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Decision last updated: 12 November 2013