Dezfouli v Justice Health

[2010] NSWADT 167

CITATION:	Dezfouli v Justice Health [2010] NSWADT 167
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Saeed Dezfouli RESPONDENT Justice Health
FILE NUMBER:	091040
HEARING DATES:	8 October, 11 December 2009
SUBMISSIONS CLOSED:	11 December 2009
DATE OF DECISION:	5 July 2010
BEFORE:	Rice S - Judicial Member; Lowe A - Non-Judicial Member; O'Sullivan M - Non-Judicial Member
CATCHWORDS:	Race, national background, race-based language, provision of service, no detriment
LEGISLATION CITED:	Anti-Discrimination Act 1977 (NSW) Health Services Act 1997 (NSW)
CASES CITED:	NZ v NSW Land and Housing Corporation [2006] NSWADT 126
REPRESENTATION:	APPLICANT In person RESPONDENT Ms Ward, Barrister
ORDERS:	The complaint is dismissed

1 For the reasons given below, the complaint is dismissed. That means that Mr Dezfouli is unsuccessful in his complaint of discrimination.

Background

2 Mr Saeed (Sam) Dezfouli has been a patient in Long Bay Hospital Complex since early 2002, shortly after he was arrested and detained on charges. In 2004 Mr Dezfouli was found by a jury to be ‘not guilty’ of murder, and ‘not guilty’ of maliciously damaging property intending by that damage to endanger the life of another. He was found by the same jury to be ‘not guilty by reason of mental illness’ of manslaughter and ‘not guilty by reason of mental illness’ of maliciously damaging property by fire.

3 The terms of the jury’s verdicts are recorded in a transcript of the proceedings, an extract of which is at page 183 of the report to this Tribunal of the President of the NSW Anti-Discrimination Board. The precise terms of the jury’s verdicts are integral to a part of Mr Dezfouli’s discrimination complaint.

4 In April 2007 the NSW Court of Criminal Appeal dismissed Mr Dezfouli’s appeal against the jury’s verdict on the charges of manslaughter and maliciously damaging property by fire.

Complaint in relation to description of the jury’s verdict

5 In May 2008 Mr Dezfouli wrote to the NSW Anti-Discrimination Board complaining that medical practitioners who had reported on or written about Mr Dezfouli had repeatedly misstated the jury’s verdict as ‘not guilty by reason of mental illness’ of murder, malicious damage to property and malicious damage to property with intent to endanger life. An essential difference between the jury’s actual verdict and the way in which the verdict has been stated by medical practitioners subsequently is that on the charges of murder and malicious damage to property with intent to endanger life, Mr Dezfouli was found ‘not guilty’, not ‘not guilty by reason of mental illness’.

6 Mr Dezfouli complained that the misstatement of the jury’s verdict was ‘fabricated, inaccurate, wrong, and misleading. Just because I am a Moslem from the Middle East’. In further correspondence with the Anti-Discrimination Board he said that he was being discriminated against ‘because of my race and religion’. A person’s religion is not a prohibited reason for conduct under the NSW Anti-Discrimination Act. A person’s ‘ethno-religious’ status is, but Mr Dezfouli did not claim that whatever such status he may have was the reason for the conduct.

7 The essence of Mr Dezfouli’s complaint is that in providing him with a service, Justice Health, through its medical practitioners, discriminated against him by repeatedly misrepresenting the jury’s verdict, to his detriment, because of his race. Justice Health did not dispute that it was providing a service to Mr Dezfouli.

Evidence

8 The reports that Mr Dezfouli complained of were a report by Doctors Paige and Wilcox dated 26 October 2007 and a report by Dr O’Dea dated 6 May 2008. At the time, Dr O’Dea was a Senior Visiting Forensic Psychiatrist to the Long Bay Forensic Hospital, and was Mr Dezfouli’s treating psychiatrist within the Long Bay Hospital Complex. Dr Wilcox was a Consultant Forensic Psychiatrist to the Long Bay Forensic Hospital. Dr Paige was the Registrar in Forensic Psychiatry at the Long Bay Forensic Hospital. All three doctors were working for Justice Health, a statutory health corporation established under the Health Services Act 1997 (NSW), funded by the NSW Health Department and operating independently of the NSW Department of Corrective Services.

9 In their report of 26 October 2007 to the Mental Health Review Tribunal, Doctors Paige and Wilcox wrote that ‘Mr Dezfouli was found NGMI [not guilty by reason of mental illness] … for index offences [which] include murder, malicious damage to property by fire and malicious damage to property with intent to endanger life’. In his report of 6 May 2008 Dr O’Dea wrote that ‘Mr Dezfouli was found not guilty by reason of mental illness in relation to the following charges: ‘Murder; Malicious damage to property by fire; and Malicious damage to property with the intention of endangering life’’.

10 Justice Health agrees that these reports misstate the jury’s verdicts. Justice Health says, however, that the misstatement was an error, and that there is no evidence that it was deliberate or that, if deliberate, it was done on the ground of Mr Dezfouli’s race.

11 Doctors Wilcox and O’Dea gave evidence. Dr Wilcox says that in describing Mr Dezfouli’s record she ‘relied upon the details in the Justice Health file just as I do for every other patient’. She says that ‘[t]he error was not due to Mr Dezfouli’s race, ethnic origin or religion’.

12 Referring to a number of reports he has written in relation to Mr Dezfouli, Dr O’Dea says that ‘[a]s is usual practice, in the course of preparing these reports, I have reviewed Mr Dezfouli’s Justice Health medical record, including prior psychiatric reports to the MHRT [Mental Health Review Tribunal], and have based my reports on this information’. Dr O’Dea lists ‘various reports prepared by staff at Justice Health in relation to Mr Dezfouli to which he has hard regard’. Specifically in relation to his describing Mr Dezfouli’s record, Dr O’Dea says ‘[t]his was information as I understood it from the limited records supplied to me by the New South Wales Courts and the MHRT’. In his evidence at the hearing Dr O’Dea said that he assumes Justice Health records in such an issue to be accurate.

Finding

13 This explanation is plausible, and in our experience is consistent with usual practice. It would not, for example, ordinarily be incumbent on a medical specialist to conduct their own inquiry into the procedural history of a patient’s criminal proceedings, nor to check on the accuracy of an account of that history set out in government records.

14 There is no evidence that any of Doctors Wilcox, Paige or O’Dea did other than rely on an account of Mr Dezfouli’s criminal history which had been repeated over some years within the corrections health system. That account was inaccurate. There is no evidence that any of Doctors Wilcox, Paige or O’Dea knew that that account was inaccurate, or repeated that account knowing it to be inaccurate, because of Mr Dezfouli’s race.

No detriment

15 Even if there was such evidence, or evidence that could reasonably support an inference to that effect, we are satisfied there was no detriment caused to Mr Dezfouli by the misdescription in the reports. Mr Dezfouli’s complaint is that the misstatement had a ‘totally adverse effect on my case to MHRT’. He formed this view based on apparently competing recommendations in May 2008 as to his future placement.

16 Mr Dezfouli was placed at the time in C Ward in the Long Bay Prison Complex, and the primary nurse there wrote a report for the Mental Health Review Tribunal. That report noted that Mr Dezfouli had previously been referred to Morrisset Hospital and Cumberland Hospital, and said that ‘either Morrisset or Cumberland Hospital would be a suitable placement for Mr Dezfouli in the future’. At the same time, and for the same Mental Health Review Tribunal proceedings, Dr O’Dea wrote the report in which he misstated the jury’s verdicts. In that report he said ‘it is planned that Mr Dezfouli would be transferred to the new Prison Hospital at the Long Bay Correctional Complex following the closure of the Long Bay Prisons Hospital Complex recently scheduled for May 2008 … It is the treating team’s recommendation that Mr Dezfouli remain on C Ward at the Long Bay Prison Hospital Complex pending transfer to the New Prison hospital as above’.

17 Mr Dezfouli believes that Dr O’Dea’s report recommended that he, Mr Dezfouli, stay in C Ward rather than be placed at Morrisset or Cumberland Hospital. He believes that the fact that as he was not so placed was attributable at least in part to the report in which Dr O’Dea misstated the jury’s verdicts.

18 Mr Dezfouli is mistaken in his belief that Dr O’Dea’s report is at odds with the primary nurse’s recommendation. Dr O’Dea’s report was concerned only with where Mr Dezfouli would be pending the closure of the Long Bay Prison Hospital Complex; it did not address at all the merits of Mr Dezfouli’s being placed at Morrisset or Cumberland Hospital. In his evidence Dr O’Dea explained that the treating team, on whose behalf he wrote the report, had to decide where Mr Dezfouli would be until and unless either Morrisset or Cumberland Hospital accepted him. In those circumstances there was no detriment caused to Mr Dezfouli by the jury’s verdicts having been misstated.

Risk of detriment through repeating the mistake

19 There is, however, a risk that detriment could be caused to Mr Dezfouli by misstating the jury’s verdicts: rightly or wrongly, people could perceive a difference between a person’s being ‘not guilty’ of murder, and their being ‘not guilty by reason of mental illness’. It is understandable that Mr Dezfouli wants to be sure that those who make decisions about his welfare properly understand the jury’s verdicts. We note that there should now be no doubt as to the correct description of the jury’s verdicts in relation to Mr Dezfouli. These proceedings, and the complaint Mr Dezfouli made in May 2008, have brought the error to the attention of Justice Health and, at least, Doctors Wilcox, Paige and O’Dea.

20 When in September 2008 the Chief Executive of Justice Health responded in writing to Mr Dezfouli’s complaint to the Anti-Discrimination Board, she correctly described the jury’s verdicts (although, as Mr Dezfouli subsequently pointed out, she mistakenly referred to Mr Dezfouli as an ‘appellant’ in the criminal trial). We note, however, that Dr O’Dea wrote a report in October 2008 when he again, and in the same terms, misstated the jury’s verdicts, and so he was mistaken when, in his December 2009 statement for these proceedings, he said ‘I have altered this information in … reports [subsequent to May 2008]’.

Complaint in relation to being called a ‘terrorist’

21 In his complaint to the Anti-Discrimination Board Mr Dezfouli complained that ‘a number of times’ he had been called a ‘terrorist’ while in the Long Bay Prison Hospital Complex. When he was asked in his oral evidence to be specific about who made these comments and when, he identified a person and the time at which the comment is alleged to have been made. The comment is alleged to have been made in 2002, a time that is well outside the 12 month time limit allowed in the Anti-Discrimination Act. As a result, that part of this complaint must be dismissed.

Complaint in relation to Dr O’Dea

22 Mr Dezfouli also complained to the NSW Anti-Discrimination Board that Dr O’Dea had discriminated against him because of his race. The complaint related to three things Dr O’Dea is said to have done: intervening to prevent Mr Dezfouli’s referral to Morrisset or Cumberland Hospital, using race-based language when speaking to Mr Dezfouli, and recording Mr Dezfouli’s national background in reports.

23 We have dealt above with the circumstances of Mr Dezfouli’s being recommended for placement at Morrisset or Cumberland Hospital. Dr O’Dea did not act in any way to affect that recommendation, and that part of this complaint must be dismissed..

Race-based language

24 In relation to using race-based language, Mr Dezfouli complained to the Anti-Discrimination Board that Dr O’Dea ‘tells me: ‘In West we do this, in West we don’t do that and etc’’. In his evidence Mr Dezfouli said that in the period May 2007 – May 2008 (the period encompassed by this complaint) Dr O’Dea had said to him six or seven times words to the effect of ‘That’s the way it is in Australia’, ‘That’s the way things are in the West’ and ‘You can’t refuse to be examined in the West’. Mr Dezfouli says that by this conduct Dr O’Dea discriminated against him on the ground of his race.

25 Such remarks could constitute race discrimination. At best they would be injudicious and likely to create perception of race discrimination. The purpose of the NSW Anti-Discrimination Act is to protect people from prejudice and discrimination (NZ v NSW Land and Housing Corporation [2006] NSWADT 126 at [18]), and such language has the potential both to cause prejudice and breach the Act.

26 In his written statement Dr O’Dea denies making these remarks, but in his evidence he was less emphatic. Questioned by Mr Dezfouli, Dr O’Dea said he could not recall saying something like ‘That’s the way it is in Australia’, that he would not speak in that way, and that ‘In the West we do this’ was not a phrase he would use. He agreed with Mr Dezfouli that it is easy to forget everything he has said to patients, but said that he would recall the more significant things that were said.

27 During the period May 2007 – May 2008, when Dr O’Dea is said to have spoken in this way, Mr Dezfouli was refusing to speak to Dr O’Dea who was his appointed treating psychiatrist. Dr O’Dea approached Mr Dezfouli from time to time and Mr Dezfouli refused to speak to him. Mr Dezfouli recorded his reasons for this; in May 2008, for example, shortly before he complained to the Anti-Discrimination Board, he wrote to Dr O’Dea, pointing out what he said were certain obligations on Dr O’Dea and saying ‘I will continue to refuse to speak to you as a protest against your unlawful conduct’. At the same time he wrote what he said was ‘an important and serious complaint’ to the Health Care Complaints Commission, and the NSW Ombudsman, among others. In that letter Mr Dezfouli complains that Dr O’Dea persists in talking to him in front of other prisoners. With that letter Mr Dezfouli submitted a ‘witness statement’ in which a fellow inmate states that he had heard Mr Dezfouli say to Dr O’Dea that he did not want to speak to him ‘because I don’t trust you, I don’t respect you and I don’t like you’. In none of these complaints about Dr O’Dea does Mr Dezfouli refer to Dr O’Dea’s having said anything to the effect of ‘In West we do this …’ and so on. On the evidence available to us, the first time Mr Dezfouli made this allegation was in his complaint to the Anti-Discrimination Board, and that was not in his initial letter but in subsequent correspondence .

28 In the circumstances we cannot be satisfied that Dr O’Dea made the comments alleged by Mr Dezfouli, and that part of this complaint must be dismissed.

Reference to national background

29 In relation to recording Mr Dezfouli’s national background in reports, Mr Dezfouli complained to the Anti-Discrimination Board that Dr O’Dea ‘sees me only as ‘[a] 49 year old man of Iranian descent’’. Mr Dezfouli says that by this conduct Dr O’Dea discriminated against him on the ground of his race. Mr Dezfouli was at the relevant times an Australian citizen, and before his incarceration had been employed in a professional capacity for a government agency in Sydney, using his excellent English language skills.

30 In his report of 8 May 2008 Dr O’Dea wrote ‘Mr Dezfouli is a 49 year old man of Iranian descent’. Dr O’Dea is not the only person to have done so: in their report of 26 October 2007 Doctors Paige and Wilcox wrote ‘Mr Dezfouli is a 48 year old man of Iranian descent’; a report in October 2007 by a doctor working for Justice Health described Mr Dezfouli as ‘a 48 year old Iranian man’; a report in May 2007 by two doctors working for Justice Health described Mr Dezfouli as ‘a 48 year old man of Iranian descent’; and a referral letter in April 2005 from two doctors working for Justice Health to a medical specialist described Mr Dezfouli as ‘a 46 year old Australian citizen of Iranian descent’.

31 Other health professionals did not comment on Mr Dezfouli’s national background: the medical specialist to whom he was referred in 2005 made no such comment, nor did nurses in reports they prepared for the Mental Health Review Tribunal.

32 In the reports which refer to Mr Dezfouli’s national background – and, relevantly for our purposes, in the report of Dr O’Dea – nothing is then said which refers back to or relies on his being of Iranian descent; it appears to be irrelevant to the purpose of the report. Mr Dezfouli’s complaint raises the question: why, if not for purposes of the report, did Dr O’Dea refer to his national background?

33 In his evidence Dr O’Dea explained his recording of Mr Dezfouli’s national background as establishing ‘context from a psychiatric point of view’, and said that such information ‘points in a particular direction’. Dr O’Dea said that the report of 8 May was a follow up report so was not complete in its description of Mr Dezfouli, and that he could have chosen to refer to other characteristics ‘to give a flavour’. We note that there is no reference in Dr O’Dea’s report to any earlier report, only that it should be read with Mr Dezfouli’s Justice Health Medical Record.

34 Dr Wilcox is a fellow psychiatrist who had similarly recorded Mr Dezfouli’s national background. When asked in evidence why she had recorded his national background, Dr Wilcox said she was unable to explain it. She described the reference as ‘just a descriptor’, and said that there was no reason for using that descriptor and not another. In evidence there are numerous other reports by health professionals concerning Mr Dezfouli – both referring to his Iranian background and not doing so– which refer variously to his being ‘articulate’, ‘highly intelligent’, ‘compliant’, ‘a man of … high ideals, powerful convictions and beliefs’, ‘pleasant’, ‘cooperative’, ‘well able to express himself’, and as having ‘a profound amount of knowledge’ on legal matters and human rights’.

35 As a descriptor of Mr Dezfouli, reference to his Iranian background, combined as it was in Dr O’Dea’s report with reference to both his mental illness and the offences with which he was charged, and in the absence of any reference to positive descriptors, has the clear potential to create a prejudicial impression of him. This is obviously of particular concern to Mr Dezfouli when Dr O’Dea’s report is being submitted to the Mental Health Review Tribunal.

36 The test under the NSW Anti-Discrimination Act for whether Dr O’Dea’s referring to Mr Dezfouli’s national background is unlawful discrimination, is whether he would have done the same in similar circumstances for a patient who was of a different national background. We do not know if that is the case. If, for example, there was evidence that Dr O’Dea did not or would not have referred to a patient’s English background, it might be possible for us to infer that the reason for Dr O’Dea’s referring to Mr Dezfouli’s Iranian background was Mr Dezfouli’s race. But even if that were so, there is no evidence of Mr Dezfouli’s having suffered any actual detriment as a result of the reference to his national background. In the absence of detriment there can be no unlawful discrimination under the NSW Anti-Discrimination Act.

37 Accordingly we are not satisfied that Dr O’Dea’s referring to Mr Dezfouli’s national background was unlawful discrimination, and that part of this complaint must be dismissed.

38 We noted above that the purpose of the NSW Anti-Discrimination Act is to protect people from prejudice and discrimination. The circumstances complained of by Mr Dezfouli illustrate how recording a person’s national background for no apparent purpose other than to draw attention to it risks causing prejudice and breaching the Act.

ORDER

1 The complaint is dismissed.