El Kassir v Benjamin
[2012] NSWADT 70
•28 February 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: El Kassir v Benjamin [2012] NSWADT 70 Hearing dates: 28 February 2012 Decision date: 28 February 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of disability discrimination to proceed is refused.
Catchwords: LEAVE - complaint of disability discrimination in the provision of services by a medical practitioner declined as lacking in substance - whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388
Turner v State Transit Authority & anor [2004] NSWADT 89Category: Principal judgment Parties: Hani El Kassir (Applicant)
Dr Samir Benjamin (Respondent)Representation: H El Kassir (Applicant - in person)
Avant Law Pty Ltd (Respondent)
File Number(s): 121005
REasons for decision
Introduction
Mr El Kassir complained to the President of the Anti-Discrimination Board that a psychiatrist, Dr Samir Benjamin, had discriminated against him on the ground of his disability. The President declined the complaint as lacking in substance. Mr El Kassir has applied to the Tribunal for permission for his complaint to proceed: Anti-Discrimination Act 1977 (AD Act), s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act, including that the complaint lacks substance.
In order to assess whether the complaint should proceed I need to examine both the factual and legal basis for the complaint.
Factual basis for the complaint
Mr El Kassir wishes to join the Police Force. In June 2011, as part of a pre-employment screening program for new recruits, he attended a psychiatric assessment with Dr Hampshire.
Mr El Kassir then made an appointment with Dr Benjamin to obtain a second psychiatric assessment requested by the NSW Police medical provider, Recovre. He attended Dr Benjamin's office on 11 August 2011. Mr El Kassir says that he told Dr Benjamin that he had suffered from co-morbid depression and anxiety which was related to post-traumatic stress disorder. He was prescribed anti-depressants and anti-anxiety medication but said that he has been well for years. Mr El Kassir also told Dr Benjamin that he had been inaccurately diagnosed with schizophrenia as a teenager and had been prescribed anti-psychotic medication.
Dr Benjamin provided a report dated 23 August 2011. Although that report was not in evidence, I assume that the conclusion reached was that Mr El Kassir was not a suitable recruit.
Mr El Kassir claims that Dr Benjamin was biased against him, that he did not take into account a "Beck Depression Test" that he administered prior to the consultation, that he was not competent or thorough and that he assumed that Mr El Kassir was obsessed with becoming a police officer. Of particular concern to Mr El Kassir was his assertion that Dr Benjamin told him that he did not approve of Dr Hampshire's report because he assumed that Dr Hampshire had not been in touch with previous doctors about why a mis-diagnosis had been made. Mr El Kassir said that Dr Benjamin had not provided evidence to support his assumptions or opinions.
Mr El Kassir asked Dr Benjamin not to provide the report to the police and as far as he knows it has never been given to them.
Legal basis for the complaint
In order to substantiate his complaint, Mr El Kassir would have to prove that Dr Benjamin breached s 49M of the AD Act. That provision makes discrimination on the ground of disability unlawful in relation to the refusal of services or the provision of services on unfavourable terms. Mr El Kassir alleges that Dr Benjamin breached s 49M of the AD Act in relation to the terms on which he provided him with a service.
Discrimination is defined in s 49B. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Mr El Kassir is complaining of 'direct' discrimination.
The matters which Mr El Kassir would have to prove to substantiate a complaint of direct disability discrimination in the provision of services are that:
(1) he has a disability as defined in the AD Act;
(2) Dr Benjamin provided him with a service on unfavourable terms;
(3) in providing the service on unfavourable terms, Dr Benjamin treated him less favourably than he treated or would have treated a person who did not have his disability, in the same or similar circumstances; (differential treatment) and
(4) at least one of the reasons for that treatment was Mr El Kassir's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A (causation).
Disability
Mr El Kassir said that his disability is the fact that he was mis-diagnosed with schizophrenia as a teenager and the side effects of the anti-psychotic medication. According to Mr El Kassir, that disability comes within the definition of disability in s 49A(c) of the AD Act which defines disability as including a disability:
that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability)
Mr El Kassir did not provide any information about the side effects of the anti-psychotic medication. I accept that an assumption that Mr El Kassir had schizophrenia in the past comes within the definition of disability.
Treatment
The treatment about which Mr El Kassir complains included coming to conclusions and making assumptions without supporting evidence or in the face of contradictory evidence. That conduct was said to demonstrated bias and incompetence.
Dr Benjamin's lawyer submitted that this case does not fall within s 49M because Mr El Kassir was not provided with a service on unfavourable terms. Rather, he merely disagrees with Dr Benjamin's conclusion and was dissatisfied with the manner in which the consultation was carried out. In Turner v State Transit Authority & anor [2004] NSWADT 89 the Tribunal, considered the scope of section 38M(b) which is the equivalent provision to s 49M(b) for transgender discrimination. That case concerned an insulting comment made by a bus driver to a passenger. The Tribunal examined section 38M and concluded that it did not extend to conduct that relates to the manner in which the offending service is provided.
Mr El Kassir has not said that Dr Benjamin treated him in an inappropriate manner. Mr El Kassir's complaint is about Dr Benjamin not being professional, competent and thorough and that he made unfair assumptions. In my view that kind of conduct comes within the concept of the terms and conditions of providing a service.
Differential treatment and causation
The treatment Dr Benjamin afforded to Mr El Kassir must be compared with the treatment he would have afforded to a person who he did not assume had suffered from schizophrenia in the past. When phrased in this way, the problem with Mr El Kassir's claim becomes apparent. Mr El Kassir was asking Dr Benjamin to assess his mental health and his suitability to be a police officer. Mr El Kassir believes that he has never suffered from schizophrenia and that he was mis-diagnosed with that illness. Dr Benjamin apparently took a different view. A view formed as part of a professional assessment does not constitute discrimination on the ground of that view.
Similarly, the test for causation demonstrates that Mr El Kassir's complaint is misconceived. It is not logical to claim that one of the reasons for the way Mr El Kassir was treated was an assumption that he had schizophrenia in the past when it was Dr Benjamin's role to form an opinion on that issue. Mr El Kassir appears to be complaining that Dr Benjamin was incompetent, unprofessional or misguided in reaching that view. Those are not matters that, even if proved, would disclose a breach of the Anti-Discrimination Act 1977.
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Decision last updated: 19 April 2012
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