Dezfouli v Justice Health and Forensic Mental Health Network
[2014] NSWCATAD 188
•05 November 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Dezfouli v Justice Health and Forensic Mental Health Network [2014] NSWCATAD 188 Hearing dates: 28 February 2014, 2 June 2014, 15 July 2014 Decision date: 05 November 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: R J Perrignon, Senior Member;
J Newman, General Member;
J Schwager, General MemberDecision: The complaint of discrimination on the grounds of disability is dismissed.
Catchwords: Complaint of discrimination on grounds of disability - disability due to mental condition - complainant a forensic patient in the Forensic Hospital at Malabar - list of complainant's correspondence created - whether creation and use of list constituted discrimination - whether a person without the complainant's disability would have been treated more favourably - whether list created and used on the grounds of disability, or for other reasons Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Dezfouli v Department of Corrective Services [2008] NSWADT 277
Dezfouli v Corrective Services [2011] NSWADT 11
Purvis v State of New South Wales [2003] HCA 62; 217 CLR 92
Rainsford v State of Victoria [2007] FCA 1059
Wright v Commissioner of Police [2014] NSWCATAP 67Category: Principal judgment Parties: Saeed Dezfouli (Applicant)
Justice Health & Forensic Mental Health Network (Respondent)Representation: M Turner (Guardian at litem for Applicant)
Crown Solicitors Office (Respondent)
File Number(s): 131039
reasons for decision
Mr Dezfouli is a forensic patient in the Forensic Hospital at Malabar in Sydney, which is administered by the respondent, Justice Health.
On 17 September 2012, Mr Dezfouli complained to the Anti-Discrimination Board that Justice Health had discriminated against him on the grounds of mental disability, by creating and using a registration form which recorded details of his outgoing correspondence. The form recorded the date each item was received from Mr Dezfouli, its addressee, and whether (if the envelope or package was unsealed) its contents had been checked by Justice Health or (if sealed) forwarded to the nurse unit manager unopened. It also provided a space for comments to be made, if any, and for the signatures of Mr Dezfouli and the receiving officer.
The Forensic Hospital is a declared mental health facility under section 109 of the Mental Health Act 2007. Mr Dezfouli was at all material times a forensic patient residing in its Dee Why ward. The background was succinctly stated by Deputy President Hennessy in Dezfouli v Corrective Services [2011] NSWADT 11 as follows [para 2]:
"Mr Dezfouli was found to have deliberately set a fire in the offices of the Community Relations Commission at Ashfield on 18 January 2002 and thereby to have caused the death of Radmila Domonkos and extensive damage to the premises. On 19 March 2004, a jury found that he was not guilty of manslaughter or maliciously damaging property by reason of mental illness. His appeal to the Court of Criminal Appeal was unsuccessful: Dezfouli v R [2007] NSWCCA 86. At [56] the Court concluded that, "The evidence that Mr Dezfouli was mentally ill at the time of the offences so as not to be responsible according to law for his actions was overwhelming." Mr Dezfouli has been diagnosed as having a psychotic mental illness manifesting itself in the form of persecutory delusions. His illness is said to be only partially responsive to treatment."
Mr Dezfouli complained that no other patient of the Forensic Hospital had their correspondence recorded by the use of such a form. He also complained that some of his mail had been withheld. The Board referred his complaints to the Tribunal. The complaint that mail had been withheld was discontinued at the hearing.
The remaining complaint was particularised by his legal representative at hearing as the creation and use of the registration form, in circumstances in which Justice Health, through the Forensic Hospital, provided mailing services to him by posting his mail.
It is common ground that Mr Dezfouli suffers from a disability by reason of a mental illness, that the registration form was created by an officer of Justice Health on or about 28 August 2012, and that it was used to record some details of Mr Dezfouli's outgoing mail until 11 November 2012. The period of the complaint accepted by the Board extended to 22 November 2012, as that was the date on which Mr Dezfouli alleged that his out-going correspondence had been withheld.
Mr Dezfouli says that Justice Health provided mailing services to him, and it was a term of that service that the form be used to record when and to whom he sent mail, and that he sign it. He says that, by creating and using the form, the respondent, in the provision of mailing services to him:
(1) treated him less favourably than it treated or would have treated a person without his disability in the same circumstances, or in circumstances that are not materially different, contrary to section 49M(1) of the Anti-Discrimination Act 1977, and
(2) did so on the grounds of his mental disability.
The creation and use of the form, he says, was detrimental to him because it was used by Forensic Health as justification for recommendations to the Mental Health Review Tribunal for his continued incarceration and the administration of depot medication.
In summary, the respondent says there was no actionable discrimination for these reasons.
(1) The form was not created or used on the grounds of Mr Dezfouli's disability or any characteristic connected with it. It was created because Mr Dezfouli complained his mail was not being posted, and in order to deal with and resolve disputes in relation to such complaints.
(2) Its creation and use was not detrimental to Mr Dezfouli, because it was not used to justify requests for incarceration or depot medication, or intended for such use.
(3) It did not constitute differential treatment, because the Forensic Hospital staff would have treated any other patient the same way in similar circumstances - namely, in circumstances where the patient complained that his or her mail was not being sent - and in fact had already done so in the Women's Unit.
(4) The creation of the form was not a 'service', or the term of a service, within the meaning of section 49M(1), because the recording of outgoing mail was an administrative act, and an integral part of the statutory duty of Forensic Health to protect the safety of the public: Rainsford v State of Victoria [2007] FCA 1059 [at 73]; Dezfouli v Department of Corrective Services [2008] NSWADT 277 at [18].
The respondent also submitted that it would be unnecessary to determine the last of these issues, in the event that issues 1 to 3 were determined in its favour.
Mr Dezfouli was ably represented at the hearing by his guardian ad litem. He attended by telephone from the Hospital.
Legislation
Section 49M(1) of the Anti-Discrimination Act 1977 provides relevantly as follows.
"(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) ....
(b) in the terms on which he or she provides a person with those goods or services."
Section 49B provides relevantly as follows
"(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability .... , the perpetrator:
(a) 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
(b)...
(2) For the purposes of subsection (1)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons of who have that disability or a characteristic that is generally imputed to persons who have that disability."
Issues for determination
To succeed, Mr Dezfouli must prove that the creation or use of the form constituted a term on which mailing services were provided to him, that the form was created and used 'on the grounds of' his mental disability, that its creation and use was detrimental to him, and that Forensic Health did not create or use, or would not have created or used, such a form in the same circumstances, or circumstances that were not materially different, in respect of a person without his mental disability.
The issues for determination by the Tribunal may be summarised as follows.
(1) Whether the registration form was created or used 'on the grounds of' Mr Dezfouli's mental disability.
(2) If so, whether by creating or using the form, Justice Health treated Mr Dezfouli less favourably than in the same circumstances, or in circumstances not materially different, Justice Health treated or would have treated a person or persons who did not have his disability.
(3) Whether the creation of use of the registration form was a term on which the Forensic Hospital provided mailing "services" to Mr Dezfouli, for the purposes of section 49M.
Applicant's evidence
Mr Dezfouli did not give evidence either orally or in the form of a statement. He did, however, submit written material to the Tribunal, which included two reports of treating psychiatrist, Dr Pulley, and a report of Mr Sparks, a registered nurse who was Mr Dezfouli's care co-ordinator on Dee Why Ward.
Dr Pulley's two reports were prepared respectively for the purposes of two hearings of the Mental Health Review Tribunal, which were scheduled to occur on 6 December 2012 and 12 September 2013.
Dr Pulley's first report, unsigned, was dated 15 June 2012. As it referred to events as late as 8 October 2012, and was machine-stamped on 4 December 2012, it is likely that it was finalised between the latter two dates.
It recorded that in the year prior to the offence of 18 January 2002, Mr Dezfouli had been sending letters to the Prime Minister and other prominent Australian politicians, to overseas heads of State including Vladimir Putin, to the Sydney Morning Herald and the Australian, and to the NSW Commissioner of Police, alleging that the Prime Minister was 'attempting to murder him and issuing assassination orders for Mr Dezfouli on television ... because he was blamed by the US Democrats for losing the 2000 US Presidential Elections'. According to Dr Pulley, the later letters contained threats to self-immolate or blow up a government building.
On 19 January 2002 Mr Dezfouli was received into prison and assessed by psychiatrist Dr Ahmed on 21 January 2002 as suffering paranoid schizophrenia. He asked Dr Ahmed to refer to his letters in order to understand his case. Mr Dezfouli was transferred to Long Bay Gaol Hospital on 13 February 2002, where he stayed until 24 March 2009, when he was transferred to the Forensic Hospital in its Clovelly Ward, which is an Extended Care unit.
On admission to the Long Bay Gaol Hospital, Mr Dezfouli had been diagnosed by Dr Reznick with paranoid delusional disorder and/or paranoid schizophrenia. On 18 and 19 February 2002, Dr O'Dea provisionally diagnosed paranoid schizophrenia. While at the Long Bay Gaol Hospital, Mr Dezfouli was found not guilty of the index offence at a special hearing by reason of mental illness. At a special hearing, Mr Dezfouli was found not guilty of the index offence by reason of mental illness. During his stay at Long Bay Gaol, Mr Dezfouli threatened to blow the gaol up if given an opportunity, that he would sue Justice Health 'when this is all over' and, if unsuccessful, would send written demands to individual doctors first and pursue them if his demands were not taken seriously, threatened to kill a particular doctor on the hospital ward, told a nurse that he would bash that doctor, said that after his release he would 'shit' on a named person who had locked a fire exit door, and that he would have sex with a staff member. Mr Dezfouli refused to take oral medication, and was treated with depot medication. He engaged in hunger strikes.
After his transfer to Clovelly Ward, Mr Dezfouli refused medications including medications for his cardiac condition, was treated with depot medication, threatened staff with a full bottle of his own urine, and engaged in hunger strikes. On 10 May 2011 he was transferred to Dee Why Long Stay unit and on 6 July 2011 to the Elouera Rehabilitation unit. On his refusal to accept depot or oral medication, Mr Dezfouli was transferred back to Dee Why Ward on 8 May 2012, where he agreed to take paliperidone tablets orally. In August 2012, Mr Dezfouli agreed to an increase in dose of this medication as an alternative to receiving enforced depot medication. Dr Pulley described Mr Dezfouli as 'settled over the past six months', though denigrating of medical staff.
Dr Pulley described Mr Dezfouli's ongoing delusional thoughts, and diagnosed a chronic paranoid psychotic illness, most likely to be chronic paranoid schizophrenia, with a differential diagnosis of delusional disorder. He added a tentative diagnosis of narcissistic personality disorder. Dr Pulley considered that a high dose of anti-psychotic medication would be required to bring Mr Dezfouli's illness under control, and noted that this had never been provided in the face of Mr Dezfouli's 'continuous and vocal objections to treatment'. Dr Pulley opined that there was a 'high loading of dynamic risk factors for violence', and expressed concern at the potential for the recurrence of arson or 'other dangerous behaviour in order to draw further attention to his still intact delusional system.' He advised that continuing care, treatment and control of Mr Dezfouli was necessary for his own protection and the protection of others from serious harm. Dr Pulley recommended continued detention in the Forensic Hospital, on the basis inter alia that 'the safety of the public is likely to be seriously endangered by Mr Dezfouli's release or transfer into a less restricted environment'.
Dr Pulley proposed a treatment management plan, and recommended that:
'Care should be taken to monitor to who Mr Dezfouli sends letters, as there is a potential for recurrence of sending of threats via mail.'
Nurse Sparks prepared an unsigned report dated 3 December 2012. According to its terms, it was initially prepared for a Mental Health Review Tribunal hearing on 22 November 2012. Given its date, however, it is likely that the hearing must have been held, or adjourned to, a later date. As appears from the second report of Dr Pulley (below), a hearing was held on 6 December 2012.
Consistent with the report of Dr Pulley, Mr Sparks reported Mr Dezfouli's compliance with medications over the previous six months. He noted an improvement in Mr Dezfouli's demeanour while taking medication. Mr Sparks observed:
"Mr Dezfouli has continued to be litigious against Justice Health, sending letters to the NSW Ombudsman, about breaches to his rights in sending correspondence to persons and organisations outside the hospital. In this he has been successful and the hospital policy in regards to sending mail has been modified."
Dr Pulley issued his second report on 3 September 2013. He noted that, following a hearing of the Mental Health Review Tribunal on 6 December 2012, Mr Dezfouli had refused to be interviewed by his treating psychiatrist, and had written to US President Obama on 6 January 2013 requesting copies of his correspondence with letters to US senators in the early 2000's discussing issues which Mr Dezfouli described as 'allegedly' delusional.
Dr Pulley said there was a further hearing at the Mental Health Review Tribunal on 27 June 2013. Dr Pulley recorded that from 27 June 2013 to 21 August 2013 Mr Dezfouli had written twelve letters to various Australian politicians and six letters of complaint to the Anti-Discrimination Board, the Health Care Complaints Commission and the NSW Ombudsman.
Dr Pulley's diagnosis remained the same as before. He recommended medication with zuclopenthixol, by depot if necessary. His assessment of the risks to the community remained the same. He recommended continued detention at the Forensic Hospital, and repeated his earlier advice that 'Care should be taken to monitor to who Mr Dezfouli sends letters, as there is a potential for recurrence of sending of threats via mail'.
These reports were tendered by Mr Dezfouli to prove that Dr Pulley had twice made the latter recommendation, and that Nurse Sparks had mentioned in his report that Mr Dezfouli had written to the Ombudsman. We are satisfied that both propositions are correct. The respondent does not suggest otherwise.
Mr Dezfouli invites us to infer that the registration form was created in August 2012 as a result of Dr Pulley's recommendation. He says that the form was detrimental to him, because it provided evidence on which Dr Pulley could rely in making recommendations adverse to him, and on which Nurse Sparks relied in his report. Those assertions are considered below.
There is no evidence to contradict the histories recorded by Dr Pulley, his diagnoses or other clinical opinions, or the conclusions as to risk expressed by him. Dr Pulley's reasoning in support of his opinions and conclusions is clearly set forth in his reports. We make findings in accordance with them. Similarly, there is no evidence to contradict the history given by Nurse Sparks, and we making findings in accordance with it.
Respondent's evidence
The respondent relied on a number of statements by the nurse unit manager of Dee Why Ward, Mr Chiduku, who also gave oral evidence at the hearing. Mr Chiduku had been a nurse unit manager at the Bronte Women's Unit of the Forensic Hospital from August 2008 to January 2012, when he became nurse unit manager of the Dee Why Ward.
While at the Women's Unit, Mr Chiduku said, patients there had complained from time to time that their mail had not been sent. In response, he decided to create a correspondence list for each patient that would record their outgoing correspondence. He provided an example of a list which was being kept in the Women's Unit as at 21 February 2014. It was made in respect of one patient only, and recorded the date that correspondence was given to the Forensic Hospital by the patient, the addressee and address, and provided for a signature indicating that the item had been approved for mailing, with a stamped or plain envelope. Mr Chiduku said the list he created at the Women's Unit was the same, except that his list was designed to collectively record all patients' correspondence, whereas now a separate list was kept for each patient.
In or about September 2012, Mr Chiduku said, Mr Dezfouli 'complained to me that his mail was not being posted'. Mr Chiduku said he discussed the matter with Mr Dezfouli a number of times, and suggested that he create a correspondence list as he had done in the Women's Unit, which 'he [Mr Dezfouli] would be asked to sign ... to indicate that the letter had been provided, and with such list also being used to recording [sic] if mail was withheld'. He said Mr Dezfouli 'responded positively to this suggestion', following which Mr Chiduku created the registration form the subject of complaint.
Later, he said, Mr Dezfouli mentioned the existence of the form at weekly meetings with other patients and 'they concurred with the idea of being provided with such a list. As a result, from that time on lists started to be created for each patient.' He said these lists were not included in the patients' clinical files, but rather held in an administration folder on the Ward Clerk's desk. He said the form was created at his initiative, 'purely as an administrative tool for the purposes of myself and my staff being able to respond to complaints from patients that their mail was not being sent'. Mr Chiduku denied that it was created at the request of any health care professional, or for use as a clinical tool in the assessment of patients' mental health.
Mr Chiduku said that the Elouera Ward had also adopted the maintenance of such a correspondence list, and provided a copy. It recorded the date, the patient's name, and the delivery location within Australia, in respect of each item of correspondence provided between 3 July 2013 and 12 February 2014.
Mr Chiduku was cross-examined. He was unable to provide copies of correspondence lists prepared for other patients in the Dee Why Ward. In response to questions asked by the Tribunal, he prepared a further statement dated 9 April 2014. He said that on 6 January 2013, he had ceased to be the nurse unit manager for the Dee Why Ward and commenced duty as the After Hours Nurse Manager for the entire Forensic Hospital. This led him to believe that the meetings with patients in the Dee Why Ward he had described must have occurred between September 2012 and 6 January 2013.
Mr Chiduku said that after one such meeting he had orally indicated to staff on duty that 'we need to create the same form for every other patient'. He did not recall following up to see if any such lists were created. He had caused a search to be made for the lists, but no lists earlier than April 2013 (after his departure from the ward) could be found. Mr Chiduku reasoned that the lists must have been destroyed in the course of a general clean-up which had occurred in October 2013, in preparation for a care facility accreditation assessment.
Mr Chiduku provided a copy of a correspondence list kept in the Dee Why Ward from 22 April 2013 to 28 February 2014. That list described the dates on which correspondence was handed to staff by patients, including but not limited to Mr Dezfouli, the patient's name and the delivery location within Australia. It was identical in form to the list kept in the Elouera Ward and produced by Mr Chiduku to the Tribunal earlier.
In reply to this evidence, Mr Dezfouli adduced oral evidence from Nurse Sparks, who said that he was Mr Dezfouli's care coordinator in September 2012, and that he had created the registration form for Mr Dezfouli's outgoing correspondence at the direction of Mr Chiduku. Mr Sparks had not created such a list for any other patient, and was not aware of such lists having been kept for other patients. Mr Sparks' evidence was not challenged, and we accept it as true.
As Mr Chiduku did not suggest that he had told Nurse Sparks to create lists for other patients in the Dee Why Ward, the evidence of the two nurses is not inconsistent. However, Mr Chiduku did not follow up to ensure that lists were created for other patients of the Dee Why Ward. He could not produce any such lists kept prior to 22 April 2013. He presumed that they had been kept in accordance with his instructions, but there is no material before the Tribunal to prove that they were. In those circumstances, we cannot make any finding as to whether or not lists were created for other patients in the Dee Why Ward prior to 22 April 2013.
In his first statement, Mr Chiduku produced Chapter B-9 of the Forensic Hospital Clinical Management of Security & Emergency Response Manual, which the parties agreed had been produced by or with the authority of the respondent. Mr Chiduku said this Chapter was current when the registration form was created for Mr Dezfouli. It recited that patients were generally free to send and receive mail, and that their right to do so 'may only be restricted when the exercise of that right could threaten the security of the Hospital or cause physical or psychological harm to another person.' It specified the grounds on which patients' outgoing correspondence might be withheld by the Hospital, authorised the inspection of the contents of patients' outgoing mail in certain circumstances, and provided for a right to a review of any decision to withhold outgoing mail.
As nothing in the Chapter authorised the creation or maintenance of a list recording patients' outgoing mail, it is unlikely that Mr Chiduku's action in creating or maintaining a list for Mr Dezfouli was done pursuant to the Chapter, or as a result of it.
Mr Chiduku said that he caused the list to be created because Mr Dezfouli complained that his mail was being withheld, and the list would provide an administrative tool to deal with those complaints - by implication, to resolve them by providing some proof as to whether and when certain correspondence was handed to the Hospital by Mr Dezfouli, and what happened to it. There is no evidence to contradict his assertion that Mr Dezfouli made complaints of that nature to him at the time. We accept that he did so.
There is nothing inherently improbable about the explanation given by Mr Chiduku for the creation of the list. As Mr Chiduku had already prepared a similar, though not identical, list for patients in the Women's Unit, it is conceivable that he would adopt a similar method of dealing with complaints in the Dee Why Ward. To that extent his evidence as to what happened in the Women's Unit corroborates his evidence as to his purpose in creating the registration form for Mr Dezfouli.
For the reasons given above, it is likely that Dr Pulley's report was not issued prior to 8 October 2012. That makes it unlikely that Mr Chiduku had any regard to it when he created the list. There is no evidence that Dr Pulley released an unfinished draft of his report to Mr Chiduku or anyone else prior to the creation of the list or at all. Mr Chiduku denies creating it at the request of any heath care professional, or as a tool for the assessment of mental health. On the balance of probabilities, it is likely that Mr Chiduku made the list for the purposes he stated, and we cannot be satisfied that he did so for any other purpose.
For the reasons given, we make no finding as to whether similar lists were created for other patients in the Dee Why Ward prior to April 2013, even if, as seems likely on the evidence, Mr Chiduku asked that such lists be created. In the absence of evidence contradicting the remainder of Mr Chiduku's account, we accept it, and make findings in accordance with it.
Purpose
We are satisfied that the registration form was created and maintained for the purpose of dealing with Mr Dezfouli's concerns or complaints that his mail was not being sent. There is no evidence that those concerns or complaints bore any relation to a disability. We cannot be satisfied that the list was created on the grounds of disability.
Differential treatment
Mr Dezfouli submits that all patients in the Dee Why Ward were treated differently from him, at least during the period of the complaint, in that no other patient's correspondence was recorded on a form like the one created for him.
Mr Dezfouli must prove that he was treated less favourably than a person or persons without his disability were treated or would have been treated in the same circumstances, or in circumstances that were not materially different. As Gummow, Hayne and Hayden JJ observed of section 5(1) of the Disability Discrimination Act 1992 (Cth) in Purvis v State of New South Wales [2003] HCA 62 [at para 223):
"In requiring a comparison between the treatment offered to a disabled person and the treatment that would be given to a person without the disability, s 5(1) requires that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled."
In this case, the relevant circumstances are circumstances in which a person whose mail is posted by the Hospital complains that it is not being posted. There is no suggestion in this case, as there was in Purvis, that the complainant's behaviour to which the treatment responded - his complaint that mail was not being posted - was caused by his disability.
Mr Dezfouli must identify an actual or hypothetical comparator without his disability, who was treated differently or would have been treated differently in those circumstances, or circumstances not materially different. Mr Dezfouli points to the other residents of the Dee Why Ward, who he says did not have registration forms created for them during the period of complaint.
Putting to one side the question as to whether registration forms were created for other patients during the period of complaint, Mr Dezfouli's disability was a disability by reason of chronic paranoid schizophrenia and/or delusional disorder. The proper approach is to characterise his disability one which results from mental illness, or at its narrowest from mental illness severe enough to warrant detention in the Forensic Hospital, rather than to characterise it more narrowly as a disability resulting from his particular diagnoses. That is consistent with the approach taken in relation to discrimination on the grounds of carer's responsibilities in Wright v Commissioner of Police, NSW Police Force [2014] NSWCATAD 16, affirmed by the Appeal Panel in Wright v Commissioner of Police [2014] NSWCATAP 67.
The other residents of the Forensic Hospital cannot be appropriate comparators, because they all share a disability as a result of mental illness. Even if Mr Dezfouli's disability were characterised in the narrowest way, as the disability which results from his particular diagnosis or diagnoses, we cannot be satisfied that the other patients were appropriate comparators, as there is no evidence to establish whether they suffered from the same mental illness, or a different mental illness.
No attempt was made at the hearing to rely on a hypothetical comparator, such as a person without mental illness in the care of the Forensic Hospital, possibly because the Hospital does not cater for persons who are mentally well. In later written submissions, Mr Dezfouli's representative suggested that the only possible comparators were visitors or hospital staff. There is no evidence that the Hospital ever handled outgoing correspondence for visitors or staff. Even if the Hospital were to do so, we could not be satisfied on the balance of probabilities that it would have treated them differently in the same or not materially different circumstances - that is, if they had complained that their mail was not being sent. In those circumstances, differential treatment is not made out, either in respect of an actual or hypothetical comparator.
It is unnecessary to consider whether the two issues of differential treatment and causation merge in cases where, as here, no actual comparator is relied on. As the Appeal Panel observed in Wright:
"[120] The use of the word 'merge' ought, perhaps, be avoided, in explaining this point. There are two separate matters (causation, and differential treatment), but often the finding in relation to causation will mean that only one answer can be given on differential treatment."
That has been the case here.
It follows that we are not satisfied that Mr Dezfouli was treated or would have been treated differently from persons without his disability in the same circumstances, or in circumstances not materially different.
Detriment
Mr Dezfouli submits that the creation and use of the registration form constituted was detrimental to him (and therefore that he was treated less favourably) because Dr Pulley and Mr Sparks relied it on as a basis for adverse recommendations made to the Mental Health Review Tribunal regarding Mr Dezfouli's continued detention and treatment in the Forensic Hospital.
The recommendations made by Dr Pulley in his report of 15 June 2012 were adverse to Mr Dezfouli, at least in so far as they recommended continued detention, medication and monitoring of his correspondence. Mr Sparks did not expressly make any adverse recommendations to the Tribunal at its hearing on 6 December 2012, but in saying that his opinion was "consistent with the treating team", Mr Sparks was probably agreeing with the recommendations of Dr Pulley.
There is no evidence that Mr Sparks relied on Mr Chiduku's list in preparing his report. Mr Sparks was not asked whether he did so. The only correspondence mentioned by Mr Sparks was letters from Mr Dezfouli to the NSW Ombudsman complaining about the way Justice Health handled patients' outgoing correspondence. Two letters to the Ombudsman are recorded in Mr Chiduku's form on 11 September 2012 and 9 October 2012. The form records that the contents of the letters were not checked. That was consistent with a notation at the foot of the form that "Letters to the Ombudsman .... should not be checked". No evidence was given about the content of those complaints, or the identity of the person or persons complained of. It is not possible to say whether they are the complaints referred to by Mr Sparks.
Even if they were, the uncontradicted evidence is that the contents of these two letters were not checked by Forensic Hospital staff. Mr Sparks would not have been able to discern the nature of the complaint, or the identity of the person complained of, in that correspondence from this record. It is highly unlikely that this form was the source of the information in his report.
It is the usual practice of bodies whose function it is to receive and investigate complaints, such as the Ombudsman and the Anti-Discrimination Board, to alert the person about whom a complaint is made to the allegations, and to seek a response. In the normal course, any complaints made by Mr Dezfouli about Justice Health would have been disclosed to it by the Ombudsman, whether or not the correspondence was noted on Mr Chiduku's form. It is likely that that is what occurred, and that Justice Health was alerted by the Ombudsman to complaints about it. It is difficult to see what detriment could be caused to Mr Dezfouli as a result of his correspondence being recorded on a form, when the Ombudsman himself or herself is likely to alert Justice Health to the complaint and seek a response. We are not satisfied that detriment is made out in relation to the report of Mr Sparks.
In his report dated 15 June 2012 (finalised on or after 8 October 2012), Dr Pulley referred to interviews with Mr Dezfouli in August and October 2012, noting:
"There has been no apparent shift in Mr Dezfouli's delusions about his court case in the United States or the involvement of United States Senators. We are aware that he continues to write letters and has written a letter to Barack Obama in the past six months."
The last sentence appears to be relied on by Dr Pulley as evidence of continuing delusional behaviour and letter writing by Mr Dezfouli. Mr Chiduku's list recorded that on 9 November 2012 a letter from Mr Dezfouli was inspected and posted to President Obama. That may or may not have been the letter referred to by Dr Pulley. The other letters referred to by Dr Pulley may or may not have been among the letters recorded on Mr Chiduku's list. Dr Pulley was not called to give evidence. It is not possible to know whether he relied on Mr Chiduku's list, or even saw it. As it was not kept on the clinical file, but on the Wardsman's desk, any inference that Dr Pulley did see it would be pure speculation. There may have been other methods by which the inspection of correspondence in accordance with the Manual is recorded and made known to the treating psychiatrist. The evidence on this aspect is silent, and does not permit the drawing of any conclusion on the balance of probabilities. We cannot be satisfied that Mr Chiduku's list was seen by Dr Pulley, or relied on by him in writing his report. We cannot be satisfied that it caused a detriment in the manner alleged. The same reasoning applies to the second report of Dr Pulley.
Conclusions
For the reasons given above, the Tribunal is not satisfied that the registration form was created or used on the grounds of Mr Dezfouli's disability, or that in creating or using it the respondent treated Mr Dezfouli less favourably than a person without his disability was, or would have been, treated in the same circumstances, or in circumstances not materially different.
Having regard to those conclusions, it is unnecessary to determine whether the creation and use of the list formed a term on which Justice Health provided a service of posting mail, and the complaint of discrimination on the grounds of disability is dismissed.
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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
Decision last updated: 05 November 2014
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