Dezfouli v Pulley
[2014] NSWCATAD 1
•17 January 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Dezfouli v Pulley [2014] NSWCATAD 1 Hearing dates: 18 December 2013 Decision date: 17 January 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Magistrate N Hennessy Decision: Leave is granted for Mr Dezfouli's complaint to proceed.
The Tribunal appoints a guardian ad litem to represent Mr Dezfouli.
The matter is listed for a case conference on 5 March 2014 at 11.30 am.
Catchwords: ANTI-DISCRIMINATION - complaint of victimisation declined as lacking in substance - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977
Civil and Administrative Tribunal Act 2013
Health Services Act 1997
Mental Health (Forensic Provisions) Act 1990Cases Cited: Bogie v The University of Western Sydney (1990) EOC 92-313
Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44Category: Interlocutory applications Parties: Saeed Dezfouli (Applicant)
Dr Rafe Pulley (Respondent)Representation: Mr Dezfouli (in person)
Avant Law Pty Ltd (Respondent)
File Number(s): 131104
reasons for decision
Introduction
Mr Dezfouli is an Iranian man who is a patient at the Forensic Hospital. He complained to the President of the Anti-Discrimination Board that his treating psychiatrist, Dr Pulley, had victimised him for lodging a complaint of race discrimination against him. Mr Dezfouli says that after he complained of race discrimination Dr Pulley proposed to change his medication to make him more manageable and less litigious.
The President declined the complaint as "lacking in substance" and Mr Dezfouli has elected to have it referred to the Tribunal. Before his complaint can go ahead, the Tribunal must give its permission or 'leave'. The test when exercising its discretion is whether it is fair and just in all the circumstances to grant leave: Anti-Discrimination Act 1977 (AD Act), s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. I have decided to grant leave for Mr Dezfouli's complaint to go ahead.
The Tribunal's discretion to grant or refuse leave is 'entirely unfettered' but must be exercised judicially: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors supra at [30]. The Court went on at [38] to say that:
Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.
This appeal was heard on 7 November 2013, but not decided until 17 January 2014. On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal: Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, this application is a "part heard" proceeding.
In previous complaints the Tribunal has appointed a guardian ad litem for Mr Dezfouli: Civil and Administrative Tribunal Act 2013, s 45(4)(a). I decided not to do so in this case because Mr Dezfouli has clearly articulated his complaint. But I have decided to appoint a guardian ad litem in relation to the substance of these proceedings.
Background
In 2004 Mr Dezfouli was found not guilty by reason of mental illness of two charges - manslaughter and "maliciously damage property by fire". He has been a forensic patient since 12 February 2002. Dr Pulley is an employee of the Justice Health and Forensic Mental Health Network Inc, a statutory health corporation established under the Health Services Act 1997. As Mr Dezfouli's treating psychiatrist, he provided a report to the Mental Health Review Tribunal (MHRT) dated 3 September 2013 for a hearing on 12 September 2013. It is Dr Pulley's opinion that Mr Dezfouli suffers from a chronic paranoid psychotic illness. The report recommended that he remain at the Forensic Hospital but instead of being administered oral anti-psychotic medication, he recommence anti-psychotic medication by depot (injection). The medication is injected and is slowly released into the body over a number of weeks.
The reasons Dr Pulley gave for the change in medication are set out in his report to the MHRT dated 3 September 2013:
We propose recommencement of depot medication for the following reasons:
Mr Dezfouli's clinical condition improved when depot zuclopenthixol was commenced in 2009, and then deteriorated following its cessation in 2012.
Mr Dezfouli demonstrates such poor insight and hostile attitudes to treatment that it is likely that he is not fully compliant with oral antipsychotic treatment as prescribed at present.
It is highly unlikely that Mr Dezfouli would take medication if not closely supervised, therefore being on a long acting injectable medication would be a prerequisite for any progression beyond the Forensic Hospital to an environment where he might be granted leave.
Allowing Mr Dezfouli's mental state to continue to deteriorate places staff at risk of harm from threats or aggressive behaviour (for example in 2009 he filled a urine bottle and threatened to throw it at staff).
In his current state any negotiation for treatment or monitoring of Mr Dezfouli's progress is impossible as he refuses interviews with his treating team.
Regarding the choice of depot medication, as Mr Dezfouli refuses to enter into any discussion of this issue, refuses metabolic monitoring for side effects and threatens to stop his cardiac medications, we are of the opinion that depot zuclopenthixol is the safer alternative as it has less potential for metabolic side effects. Furthermore zuclopenthixol has already been demonstrated to have greater efficacy as compared to the current medication regime.
Complaint to Anti-Discrimination Board
Mr Dezfouli lodged a complaint of victimisation under the AD Act with the President of the ADB on 20 May 2013. Dr Pulley responded on 29 August 2013 saying that it is the opinion of Mr Dezfouli's treating team that the increase in the rate of his making complaints, as well as his refusal to speak with his treating team, are signs that he is more paranoid than he has been in the past. He says that his opinion that Mr Dezfouli is psychiatrically unwell is not based solely on the complaints that he makes, it is also based on his history and the observations of his behaviour by all members of his treating team.
Mr Dezfouli disagrees with Dr Pulley's opinion and the reasons he gives for changing his medication. He provided copies of reports from other doctors and nurses which he says contradict, or at least do not support, Dr Pulley's opinion.
The President of the Anti-Discrimination Board declined the complaint on the following grounds:
Mr Dezfouli's allegation that he has been victimised by Dr Pulley for lodging a complaint of race discrimination with the Anti-Discrimination Board in January 2013 lacks substance. There appears to be a long standing disagreement between Mr Dezfouli and his treating doctors about his treatment plan and the appropriate medication to treat him. The ongoing nature of this disagreement is well documented and appears to have been ongoing for a considerable part of the time that Mr Dezfouli has been a forensic patient, and in any event, long before January 2013.
Additional to considering the substance of Mr Dezfouli's allegation is the matter of the appropriate body to investigate and/or remedy the subject matter of this complaint. The subject matter of this complaint relates to Mr Dezfouli's medical treatment and the appropriate use of medication. This is a subject matter that should be dealt with by another body such as the Mental Health Review Tribunal or the Health Care Complaints Commission, as both agencies are more appropriate agencies to investigate and determine suitability of medical care and have more appropriate remedies available.
In determining whether it is fair and just for this complaint to go ahead, it is necessary to consider the merits of the complaint and whether there is an adequate alternative remedy.
Victimisation
The elements of victimisation
Section 50 of the AD Act states that:
(1) It is unlawful for a person ("the discriminator" ) to subject another person ("the person victimised" ) to any detriment in any circumstances on the ground that the person victimised has:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
To prove victimisation, Mr Dezfouli must establish that:
(1) he did one of the things referred to in sub-paras (a) to (d) of s 50;
(2) he suffered some consequential detriment; and
(3) that detriment occurred on one of the grounds set out in sub-paras (a) to (d).
Brought proceedings?
Mr Dezfouli lodged a race discrimination complaint against Dr Pulley with the Anti-Discrimination Board on 14 January 2013. It related to a statement Dr Pulley had allegedly made to him in May 2012 that, "People like you come to Australia to commit crimes." Dr Pulley denies making this statement. The matter was heard on 13 August 2013 and leave for it to proceed was refused.
Detriment?
In Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40], the Tribunal held that the word "detriment" should be given its ordinary English meaning of "loss, damage or injury". The concept of "detriment" was discussed in detail in Bogie v The University of Western Sydney (1990) EOC 92-313 at 78,145-78,146. The Equal Opportunity Tribunal, as it then was, held that "... all that is required to constitute a 'detriment' in a victimisation complaint is that the complainant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter." The Tribunal went on to say that a broad interpretation of the word detriment is "consistent with the evident legislative intention to protect those who use the processes of the Act, or contemplate such use or assist in relevant ways in such use."
The statement in Bogie that the complainant must be placed under a disadvantage as to a matter of substance as distinct from a trivial matter, is no more than an attempt to define detriment. If the disadvantage is trivial it will not constitute a detriment. Section 50 speaks of "any detriment in any circumstances". Regardless of the circumstances, any detriment is sufficient.
Whether a detriment has been suffered is to be determined objectively. In Sivananthan at [41], the Tribunal stated that "it is not sufficient for the complainant to allege that he has suffered some consequence at the hands of the respondent which he characterises as a detriment; the loss, damage or injury suffered by the complainant must be something which a reasonable person would consider to be a detriment." In summary, in our view a detriment is any objective disadvantage in any circumstance but a person will not have suffered a detriment if a reasonable person would regard the matter as trivial.
Mr Dezfouli considers the change in medication to be detrimental to him. He says that the side effects of receiving medication by injection are that it "numbs his brain so that he can't think clearly", causes cramps and causes him to hear voices. He does not suffer these side effects when taking oral medication. He also says that the proposed dose is for 200mg every fortnight whereas previously the dose was 150mg per fortnight.
There is a difference of opinion between Mr Dezfouli and his treating team as to whether administration of anti-psychotic medication by injection is beneficial or detrimental. This question would ultimately have to be resolved by the Tribunal based on all the evidence and applying an objective test. Any doubt about that question does not justify leave being refused for Mr Dezfouli's complaint to go ahead.
Causal connection
In determining whether any detriment occurred "on the ground of" one of the matters set out in sub-paras (a) to (d), the question is whether one of those matters was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.
Mr Dezfouli says that in May 2013 he read the notes on his medical file for the month of March 2013. He refers to notes on 12 March 2013 in which "it is documented that Dr Pulley is denying stating 'people like you come to Australia and commit crimes' and that I made that allegation due to my mental illness and that the determination of my state of mind has made me to be litigious and complaining to ADB and that I should be placed on the injection." The notes to which Mr Dezfouli refers were not in evidence but if they were before the Tribunal they may constitute relevant evidence about the reasons for the recommended changes in medication.
The formal proposal for the recommencement of depot medication was made in a report to the MHRT on 3 September 2013 and the reasons given are set out above at [7].
According to Mr Dezfouli, Dr Pulley's reasons are merely an 'excuse' to subdue him and prevent him from making further complaints. Dr Pulley sees the change as clinically justified and as necessary to ensure that staff are not at risk of harm from threats or aggressive behaviour.
One of the reasons Mr Dezfouli says that it can be inferred that Dr Pulley is punishing him for complaining is that other professionals do not agree with the reasons he has given for changing the medication. Mr Dezfouli says that there is no clinical justification for the change in medication and that view is supported by a report from the Care Coordinator, Mr Sparkes. While Mr Sparkes does not comment directly on the appropriateness of Mr Dezfouli's medication, he says in a report dated 15 June 2013, that Mr Dezfouli is compliant with oral medication. He also says that there have been no episodes of aggression for a number of years. Dr Pulley points to an incident in 2009.
Any finding about whether Mr Dezfouli's mental state is deteriorating and whether staff are at risk of harm from threats or aggressive behaviour would have to be made by the Tribunal on the basis of all the evidence. There is at least some evidence which appears to support the inference which Mr Dezfouli has drawn. That inference is that his litigious behaviour, and particularly the complaint he brought against Dr Pulley, is at least one of the reasons for the change in medication. Of course, there is also evidence against drawing that inference. In those circumstances it is not fair or just to refuse leave for the complaint to proceed on the basis that it lacks merit.
Alternative remedy?
The second reason relied on by the Anti-Discrimination Board for declining the complaint was that "another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint": AD Act, s 92(1)(a)(iv). The President of the Anti-Discrimination Board nominated the Mental Health Review Tribunal and the Health Care Complaints Commission as offering more appropriate remedies.
Neither party addressed this matter as a possible basis for refusing leave.
In accordance with the provisions of the Mental Health (Forensic Provisions) Act 1990, the Mental Health Review Tribunal must review the case of each forensic patient every six months but may review the case of any forensic patient at any time. Numerous reviews have taken place in relation to Mr Dezfouli. He told me that the Supreme Court had recently heard a matter involving him but that the decision had not yet been handed down. I do not know the precise nature of the Supreme Court proceedings or whether they will provide Mr Dezfouli with an adequate remedy. If it does, then the question of whether this complaint should proceed may be re-visited.
On the basis of information on the Health Care Complaints Commission's website, Mr Dezfouli has the right to complain to that organisation about his treatment plan. He cannot complain to the HCCC about orders of the Mental Health Review Tribunal but he can complain, for example, about medication causing side effects.
But I am not satisfied, on the basis of the evidence or the parties' submissions, that either an application to the Mental Health Review Tribunal or a complaint to the Health Care Complaints Commission would afford Mr Dezfouli a more appropriate remedy than that which is available in this Tribunal. There was insufficient evidence or argument on that point for me to reach a conclusion.
Even so, Mr Dezfouli should be aware of the limitations of any remedy available in this Tribunal. If the matter proceeds, and the complaint is substantiated, the Tribunal may make orders including damages and injunctive relief or decline to take any further action: AD Act, s 108(2). Mr Dezfouli is most likely to seek, as his primary remedy, an order preventing Dr Pulley from implementing the proposed change to medication: s 108(2)(b). In my view, if the complaint was substantiated the Tribunal would only make that order if it was satisfied that the proposed change to the medication was clinically inappropriate. Expert evidence would need to be led on that point.
On that cautionary note, I grant leave for Mr Dezfouli's complaint to proceed.
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: 22 January 2014
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