M v Dental Board of Queensland
[2011] QCAT 373
•10 August 2011
| CITATION: | M v Dental Board of Queensland [2011] QCAT 373 |
| PARTIES: | M |
| v | |
| Dental Board of Queensland |
| APPLICATION NUMBER: | ADL033-10 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | 28 January 2011 |
| HEARD AT: | Brisbane |
| DECISION OF: | Robert Wensley QC, Member |
| DELIVERED ON: | 10 August 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | (1) Until further order of this Tribunal or other competent authority, I direct that the disclosure of the identity of the Applicant, or details of which would tend to identify the Applicant, is prohibited. (2) I find that the conduct of the Respondent, as referred to in the Statement of Agreed Facts filed in this matter by the parties, does not constitute indirect discrimination under the Anti-Discrimination Act 1991. (3) Should that finding be in error, I find that the Respondent’s reliance on its Policy no. 9, referred to in the Statement of Agreed Facts, removes its conduct from indirect discriminatory conduct in terms of s 11 of the Anti-Discrimination Act 1991 because – a. the conduct of the Respondent, in developing, formulating, publishing and applying the policy, falls within an exemption to the Anti-Discrimination Act 1991, because the conduct of the Board in that regard is reasonably necessary to protect public health and to protect the health and safety of people at a workplace, as provided for in s 107 and s 108 of the Anti-Discrimination Act 1991; and b. further or in the alternative, the Dental Practitioners Registration Act 2001 (now repealed) and the Health Practitioners (Professional Standards) Act 1999 permitted the Board to carry out the conduct complained of (as involving indirect discrimination under the Anti-Discrimination Act 1991) to protect the public, and it did so lawfully. (4) Each of the parties is to file in the Tribunal and serve on the other, within 21 calendar days of the date of publication of this decision, short written submissions as to what order, if any, the Tribunal should make as to the costs of the reference to me, or more generally as to the costs of the application in the light of this decision. (5) Within 21 calendar days of the date of publication of this decision, the Applicant is to file in the Tribunal and serve upon the Respondent a notice stating whether the Applicant intends to pursue the application on the basis of an allegation of direct discrimination, or whether the Applicant, in the light of this decision, abandons his application. In the event of the former, the Applicant’s notice is to state that he requests a directions hearing at an early date to determine the future conduct of the matter. In the case of the latter, each of the parties is to file in the Tribunal and serve on the other party, within 21 days of the date of the Applicant’s notice, short written submissions as to what orders the Tribunal should make, if any, in respect of the costs of the proceeding as a whole, other than the costs of the matter insofar as they relate to the reference to me pursuant to the direction of Senior Member Endicott dated 4 October 2010. (6) Thereafter, the Tribunal will determine all questions of costs of the proceeding to date, or as a whole, on the papers and will publish its decision and reasons in that regard. |
| CATCHWORDS: | ANTI-DISCRIMINATION – where dentist is HIV positive – where dentist restricted from performing dentistry involving invasive intraoral procedures based on a policy of respondent – where effect of policy alleged to be unreasonable – where allegations of indirect discrimination – referral for decision as to whether conduct of respondent in relying on the policy was reasonable Anti-Discrimination Act 1991, ss 11, 107, 108 Waters v Public Transport Corporation (1991) 173 CLR 349 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | M represented by Mr Larry Laikand, a solicitor with the Welfare Rights Centre Inc |
| RESPONDENT: | Dental Board of Queensland represented by Ms Mellifont SC, barrister, instructed by DLA Phillips Fox |
REASONS FOR DECISION
Introduction/History
In this matter, the Applicant (‘the Applicant’) is Dr M. He is a qualified dentist. The Respondent is the Dental Board of Queensland (‘the Board’).
Dr M is HIV positive. He is not practising as a dentist at the moment.
The Board has directed that Dr M is not to undertake exposure prone dental procedures in accordance with its Policy no. 9 (‘the Policy’). Dr M believes that the Policy does not conform with anti-discrimination laws in Queensland, as it relates to impairment in the workforce.
The relevant complaint was lodged with the Anti-Discrimination Commission (‘the Commission’) on 18 June 2009, and was accepted on 2 July 2009.
The text of the complaint was:
“The Dental Board’s Policy no 9 ‘Dental Practitioner and Blood Borne Viruses’ does not conform with anti-discrimination law in Queensland as it relates to impairment in the workforce. After much investigation the board came to the conclusion that I am not ‘impaired’ however because of Policy no 9 I cannot perform most of the common procedures expected of a dentist.
This Policy is a blanket Policy that does not take into account viral load, procedural technique and many other factors that would relate to the competency of a dentist to practice and is therefore discriminatory.
The registration question asking whether you have been tested and conform to Policy No 9 elevates this risk above all other risks in dental practice, and yet it is a Policy that is trying to prevent a possibility that has never occurred in Australia to date and has only ever occurred once worldwide. This incident was prior to modern anti-retro viral drug therapies.
Putting dentists and other surgeons out of the workforce is not a sensible public health measure.”
On 23 July 2009, the Queensland Anti-Discrimination Commissioner directed that the disclosure of the identity of the Applicant, or details which would tend to identify the Applicant, be prohibited until resolution of the complaint or referral of the complaint to the Tribunal.
A conference was held in the Commission on 6 August 2009, but the matter did not resolve.
On 14 May 2010, Dr M requested that the matter be referred to this Tribunal (‘the Tribunal’). That occurred and there was a directions hearing on 15 June 2010.
At that hearing, Senior Member Endicott directed that –
(a)both parties be granted leave to be legally represented;
(b)the Applicant file in the Tribunal and serve on the Respondent a copy of its Contentions by 20 July 2010;
(c)the Respondent file in the Tribunal and serve on the Applicant a copy of its Contentions in response by 24 August 2010; and
(d)the matter be listed for a compulsory conference on 31 August 2010.
On 20 July 2010, the Applicant filed and presumably served his Contentions. These stated, inter alia –
(a)(in para 20) that the complaint is one of alleged impairment discrimination pursuant to s 7(h) of the Queensland Anti-Discrimination Act 1991 (‘the Act’), the HIV positive status of the Applicant falling within the dictionary definition of impairment in s (e) of this definition as the presence in the body of organisms capable of causing disease;
(b)(in para 23) in the alternative, that there may be [sic] a complaint of alleged indirect discrimination pursuant to s 11 of the Act. It was asserted that the alleged term for the purposes of s 11(1) of the Act may be that all dentists registered to practice dentistry without restriction in Queensland must have a zero risk of the transfer of a blood borne virus from dentist to patient. It was asserted that the Applicant cannot comply with this term as he is allegedly not a zero risk of transfer of blood borne virus infection to a patient;
(c)(in paras 24 and 25) that a higher proportion of dentists who are not HIV positive can meet this term than the class of persons the Applicant belongs to, and that the imposition of the term is unreasonable because the Applicant has an undetectable viral load due to his compliance with anti-retroviral medication, and there has never been a recorded instance of a transfer of the HIV virus from dentist to patient, where there is an undetected viral load.
The remedies sought at the conclusion of the Contentions were –
(a)to perform all aspects [sic] of general clinical dentistry on patients without restriction;
(b)to monitor the Applicant’s own viral load through his continuing treatment with his medical practitioners of his own choice;
(c)to observe the confidentiality of the Applicant's HIV status and not to disclose this status to insurers, Medicare Australia and prospective employers;
(d)general damages for hurt feelings, humiliation, and loss of income; and
(e)legal costs.
On 1 July 2010, the Dental Board of Queensland ceased to exist and the Dental Board of Australia commenced. The solicitors for the Board asserted, in correspondence dated 12 August 2010 and 18 August 2010, that from then the Applicant held national registration with the Dental Board of Australia, which had published its Guidelines on Infection Control. In these circumstances, the Dental Board of Australia sought an extension of time to deliver its Contentions. I shall refer to the former Board and the Australian Board as ‘the Board’.
The compulsory conference proceeded on 31 August 2010. The matter did not resolve, and the Tribunal ordered the Respondent to file and serve its Contentions by 21 September 2010 and that the matter be listed for a further directions hearing on 4 October 2010.
The solicitors for the Board delivered the Respondent’s Contentions on 21 September 2010. Both direct and indirect discrimination was denied. Alternatively, if there was discrimination, it was asserted that the discrimination was permitted or otherwise exempted because, by implication, relevant legislation, including the Professional Standards Act, are inconsistent with and override the provisions of the Anti-Discrimination Act and permit the Board to discriminate to protect the public and maintain the standards of the profession.
It was contended that the Respondent’s primary duty was to protect the public; that it gave careful consideration to the Applicant's circumstances; and that where (as it is contended) the evidence shows that there is a small but finite risk of transmission of the HIV virus, the Applicant’s compliance with Policy no. 9 was reasonably necessary, or conducive, for the protection of the public and people at a place of work.
It was further contended that the Applicant had no grounds for seeking general damages and that there were no grounds, and no power in the Tribunal, to order that the Applicant be permitted to perform general clinical dentistry on patients without restriction.
The Tribunal conducted a further directions hearing on 4 October 2010. It was ordered that –
(a)the parties file in the Tribunal a Statement of Agreed Facts by 1 November 2010;
(b)the parties file in the Tribunal and serve on the other party written Submissions as to whether the conduct of the Respondent constitutes indirect discrimination under the Anti-Discrimination Act 1991, or whether the Respondent’s reliance on Policy no. 9 removes its conduct from discriminatory conduct in terms of s 11 of the Anti-Discrimination Act 1991, by 4 pm 26 November 2010;
(c)the parties file and serve any response to those Submissions by 10 November 2010;
(d)a hearing on the points raised in the Submissions be scheduled for 28 January 2011.
It was pursuant to that last direction that I conducted a hearing on 28 January 2011, limited to the particular matters referred.
Thereafter, the following occurred –
(a)on 15 November 2010 a Statement of Agreed Facts was filed;
(b)on 26 November 2010 the Applicant’s written submissions on the referred matters were filed;
(c)on 1 December 2010 the Respondent’s written submissions were filed;
(d)on 9 December 2010 the Applicant’s Reply was filed; and
(e)on 10 December 2010 the Respondent’s Reply was filed.
The Statement of Agreed Facts
The Statement of Agreed Facts is very comprehensive and helpful. I congratulate the parties and their advisors on having been able to agree it. The following paragraphs reflect or are extracted from this Statement.
The Applicant obtained the qualification of Bachelor of Dental Surgery in 1980. He holds a Bachelor of Science degree in physics, gained in 1976.
The Applicant was first registered as a dentist by a State Dental Board in 1980, and was first registered with the Dental Board of Queensland by mutual recognition legislation in 2005. He has general registration as a dentist, and is currently registered with the Dental Board of Australia.
In 2004, the Applicant ceased practicing as a dentist, and on 1 August 2006 he contacted the Respondent to inform it of his HIV positive status.
At its meeting on 5 September 2006, the Respondent resolved to impose a condition on the Applicant that he “not practice”, and referred the matter for investigation by the Chief Health Officer of Queensland Health, requesting that an Advisory Panel be convened.
By letter dated 13 November 2006, the Deputy Chief Health Officer advised that the Advisory Panel for Health Care Workers with Blood Borne Viruses had discussed the Applicant’s case. The panel had stated –
“The panel advises that although a virus is classified as undetectable, this does not mean there is no virus present and that it would be usual for virus levels to fluctuate. Virus level studies would need to be taken on a daily basis for patient safety to be assured, which would be unsustainable in practice. The panel therefore is of the opinion that although the risk of transmission is low based on the history of undetectable virus load in (the Applicant’s) blood since 2001, it is not zero.
Based on this the panel recommends (the Applicant) is restricted from practicing exposure prone invasive procedures. Previously dentists would not have been eligible for registration with this type of restriction, however with recent opportunities for dental employment in areas not requiring exposure prone invasive procedures to be undertaken, the panel recommends registration conditional on not performing exposure prone invasion procedures.”
On 14 November 2006, the Respondent revised its resolution of 5 September 2006, and referred the Applicant to the Health Assessment and Monitoring Program for a health assessment to be conducted. The Respondent resolved to ask the Applicant to agree to an undertaking that he would not practice while his health was being assessed.
On 16 November 2006, the Respondent wrote to the Applicant, advising that the Respondent had requested him firstly to be given an opportunity to provide a voluntary undertaking not to practice dentistry while assessed. The Applicant was asked to return a signed undertaking by 22 November 2006 so that it could be considered by the Board’s next scheduled meeting on 5 December 2006.
On 22 November 2006, the Applicant wrote to the Board about the wording of the voluntary undertaking, expressing unhappiness about the public recording of the wording in his undertaking, because he was not practicing and had no intention of practicing until the matter was resolved.
On 24 November 2006, the Respondent replied, inviting the Applicant to amend the wording of the undertaking so that it could be considered at the meeting on 5 December 2006.
On 4 December 2006, the Applicant returned a signed undertaking to the Board. The reference to the undertaking being recorded on the Board’s public register was deleted. Also, on 4 December 2006, the Applicant wrote to the Board about the health assessment process, and asked that a timeframe be put in place because of the impact on the Applicant’s ability to earn a living, and the stress that it was causing him.
On 5 December 2006, the Board considered the Deputy Chief Health Officer’s letter of 13 November 2006, and resolved to request further advice from other dental authorities, Associate Professor Savage, and the Advisory Panel about exposure prone procedures in dentistry.
On 7 December 2006, the Board wrote to the Applicant to advise that his correspondence and the amended voluntary undertaking had been considered by it at its 5 December 2006 meeting, and that he would be contacted shortly about that.
On 28 February 2007, information was sought from the head of the School of Dentistry at the University of Queensland, Professor Laurence Walsh, who provided some information about procedures that he considered were not exposure prone, including radiology, saliva tests, and other matters. However, he indicated that it was not workable to make a list of procedures that could or could not be done.
On 9 March 2007, the Board wrote to the Applicant, informing him that it had considered the amended voluntary undertaking contained in his 4 December 2006 letter; that it had resolved to accept the undertaking; and had resolved to give further consideration to the fact that the Applicant did not agree to have the undertaking recorded on the public register. The Applicant was asked to undergo a health assessment pursuant to s 271(1) of the Health Practitioners (Professional Standards) Act 1999.
On 21 March 2007, the Board wrote to the Applicant, confirming an appointment with Dr Whitby for the assessment. The Applicant duly attended. Dr Whitby is an expert in infectious diseases, internal medicine and pathology. Dr Whitby examined the Applicant on 4 April 2007, at the request of the Board, and he delivered a written report to the Board. I refer to this report below.
On 20 April 2007, the Board invited the Applicant to make a written submission to it in relation to Dr Whitby’s report.
On 27 May 2007, the Applicant made a submission in writing in response to this invitation.
On 19 September 2007, Dr Selvey, the Deputy Chief Health Officer, gave further information to the Board about exposure prone procedures, saying that these are –
“characterised by the potential for direct contact between the skin ... of the healthcare worker and sharp surgical instruments, needles or sharp tissue (spicules of bone or teeth) in body cavities or in poorly visualised or confined body sites (including the mouth). The definition obviously encompasses most clinical dental work.”
On 27 September 2007, the Board informed the Applicant that it had considered his entire file and resolved to make further enquiries about what is considered to be exposure prone procedure. In response, Dr Selvey confirmed to the Board that none of the procedures involved in oral radiology, as then currently practiced in Australia, were exposure prone procedures, and that the Advisory Panel was satisfied that standard universal infection control precautions would suffice for a blood borne virus infected dental practitioner performing oral radiology.
On 5 February 2008, the Board resolved that the Applicant was impaired pursuant to s 275 of the Health Practitioners (Professional Standards) Act 1999.
On 12 February 2008, the Board wrote to the Applicant and informed him that at its meeting of 5 February 2008, it considered the report of Dr Whitby, the Applicant’s submission and advice from Queensland Health Advisory Panel, and resolved that the Applicant was impaired, as mentioned above.
A schedule of undertakings, for a period of three years, was provided. The details appear in the Statement of Agreed Facts. The undertakings were, as it seems to me, onerous, and the Applicant did not accept them.
There were further exchanges between the Applicant and the Board in 2008, and on 13 May 2008 the Applicant applied for renewal of registration as a dentist, stating that he did not suffer from any ongoing medical condition that would affect his ability to competently and safely practice dentistry.
The Board resolved to refer the matter to a Health Assessment Committee, which was constituted to meet in January 2009. The Applicant confirmed that he would attend before that committee. He did so, and submitted that –
(a)while his viral load was undetectable and he continued treatment, he did not present a public risk;
(b)the current Policy of the Board was discriminatory;
(c)the Policy discouraged dentists to get tested for blood borne viruses and probably there were HIV positive dentists practising;
(d)the Policy was not in the best interests of the public, as it unnecessarily removed HIV positive dentists from the workforce.
The Committee recommended –
“(1) The committee recommends that (the Applicant) maintain his registration as a dentist. Although the committee could not find that (the Applicant) was impaired as defined by the Act, it unanimously agreed that Dental Board Policy (number 9) ‘Dental Practitioners Infected with Blood Borne Viruses’ was clear in respect to HIV positive practitioners in that it precluded them from undertaking exposure prone procedures.
(2) The committee recommends that the Dental Board advise (the Applicant) that he must adhere to the Dental Board Policy (number 9) and advise (the Applicant) that he should not undertake exposure prone procedures and if he did so he would be in breach of this Policy and would be subject to disciplinary action. The committee recognised that this would severely limit (the Applicant’s) ability to practice dentistry.
(3) The committee recommends that the Dental Board investigate the appropriateness of this Policy when it undertakes its next review.”
On 14 April 2009, the Board wrote to the Applicant, advising him it had met and considered the report of the Committee and the Applicant’s submission received 27 March 2009. The Board informed the Applicant that the Respondent had found that the Applicant did not meet the definition of impairment and that no further action would be taken by the Board under Part 7 of the Act.
Further, the Board informed the Applicant that he must comply with the policies of the Board and Queensland Health, and was not to undertake exposure prone procedures regardless of his viral load.
The Statement of Agreed Facts contains some details of the Applicant’s health history. The Applicant believes he was infected with HIV in the early 1990’s. He was diagnosed as suffering from HIV in 2000.
In November 2000, blood tests revealed that the Applicant had a viral load of 358,000 and a CD4 count of 190 10%.
The Applicant commenced taking retroviral medication in late 2000. By March 2001 his viral load had become undetectable, and by May 2003 his CD4 count was 500.
On 2 August 2006, the Applicant’s doctor, Dr Tom Brett, reported that the Applicant was compliant with treatment, was in good health, and that recent blood tests showed an undetectable viral load and a CD4 count of 500.
On 9 August 2006, the Applicant’s other treating doctor, Dr Andrew Gowers, reported that he had been caring for the Applicant since October 2000; that the Applicant began medication in December 2000; that the Applicant’s viral load became undetectable by March 2001; that the viral load had remained undetectable and that the then most recent CD4 count was 558 24%.
In December 2006, the Applicant had a CD count of 390.
In April 2007, Dr Gowers provided a report at the Board’s request. Dr Gowers confirmed that the Applicant first consulted him on 31 October 2000, and that he had been diagnosed with HIV infection on 19 October 2000. Dr Gowers said the last CD count taken by him was 481; that he anticipated that the Applicant’s viral load would remain undetectable; and that he believed that the Applicant was safe to practice using universal precautions.
It is appropriate to quote from Dr Whitby’s written opinion at some length (as recorded in the Statement of Agreed Facts). In part, he said –
“...then while the risk of transmission of HIV from a Dental Practitioner to a patient is not quantifiable, it appears to be low. The risk would be further reduced if the Dental Practitioner was compliant with antiretroviral therapy which was effective, including a high CD4 count and suppressed viral load, and that the Practitioner applied recommended infection control precautions rigorously.
(The Applicant) therefore, in my view, assuming he continues to take antiretroviral therapy and assuming that this remains effective, and assuming that he rigorously applies infection control protocols, thus poses an unquantifiable, but very low risk[1] of HIV transmission to his patients.
...
A Practitioner with suppressed viral load does have some virus particles in the blood and these number of particles, albeit at the very low level, will fluctuate from day to day. Furthermore even on adequate therapy, compliance with therapy must be ensured if the viral load from escape mutants [sic]. Thus even with a Practitioner on antiretroviral therapy, on any given day there can be no guarantee that a detectable viral load would not exist.
While there has been significant improvement in the application of infection control precautions in general Dentistry, there is some evidence that compliance is sometimes lacking, even in industrialised countries.
...
Although the risk must be low, the above evidence would suggest that (the Applicant) in his current state of HIV control does pose an unquantifiable, but finite risk of transmission of HIV to his patients[2].
[1] Underlining added.
[2] Underlining added.
...
The difficulty with Dental Practitioners ... is that the majority, if not all, of the procedures they undertake are exposure prone. Surgeons can limit their practice by undertaking only procedures external to the body (e.g. removal of skin lesions) where both hands can be seen in relation to the sharp being used. It is an unfortunate fact however that if the teeth are considered to be a sharp object, any intra-oral procedures must by definition be regarded as exposure prone. Thus, it would appear, at least from my perspective of an Infectious Diseases Physician, that a General Dental Practitioner who is restricted from performing intra-oral procedures would have their practice severely limited.”
In summary, Dr Whitby said –
“1. The registrant’s risk of transmitting HIV to his patients if allowed to practice dentistry without restriction is unquantifiable and is low, but is certainly finite.
2. It is not my view that the public of Queensland would regard this risk as acceptable even if educated to the low risk and would expect to be informed of the Practitioner’s blood borne status in these circumstances.
3. On balance therefore, I see no reason why the same restrictions as placed on other blood borne virus positive healthcare workers should not be placed on (the Applicant) in that he should be restricted from performing exposure prone procedures. In recommending this, I recognise that (the Applicant) would be restricted from performing intra-oral procedures and that this restriction would provide a significant limitation to his general dentistry practice.”
The Statement of Agreed Facts details the Board’s Policy no. 9. It was approved in November 2000, and was titled ‘Dental Practitioners and Blood Borne Viruses’. It was reviewed in August 2008, April 2009, and July 2009. It was to be reviewed in November 2010 but, for reasons mentioned above, it ceased to apply from July 2010 and therefore has not been reviewed.
Relevantly, the Policy states –
“2. Definitions
2.1 Blood borne Virus
For the purpose of this Policy, the term ‘blood borne virus’ includes Human Immunodeficiency Virus (HIV), Hepatitis B Virus (HBV) and Hepatitis C Virus (HCV).
2.2 Healthcare Workers
Persons, including students, involved in the delivery of health services in health facilities (particularly where those persons have regular contact with patients or any contact with blood or body substances from patients).
2.3 Invasive procedures
Include any surgical entry into tissue, body cavities or organs, or repair of traumatic injury.
2.4 Exposure-prone procedures
Are a subset of invasive procedures which are characterised by the potential for direct contact between the skin (usually finger or thumb) of the healthcare worker and sharp surgical instruments, needles, or sharp tissue (spicules of bone or teeth) in body cavities or in poorly visualised or confined body sites (including the mouth).
Procedures where the hands and fingertips of the worker are visible and outside the body at all times, and internal examinations/ procedures that do not require the use of sharp or cutting instruments are not considered to be exposure-prone, and thus are unlikely to pose a risk of transmission of HIV, HBV or HCV from an infected healthcare worker to a patient.
...
4. Dental Practitioners who have become infected with a blood borne virus after registration as a Dental Practitioner was granted
4.1 The risks posed by Dental Practitioners in this category include:
4.1.1the risk of transmission of the virus; and
4.1.2the risk that the virus will impact on professional performance. This is particularly a concern in cases of HIV infection, where AIDS-related dementia can occur.
4.2 The Board has the responsibility to protect the public from both these risks. The risk of transmission can be almost completely eliminated by requiring that such Dental Practitioners do not undertaken exposure-prone procedures. The categories of ‘infected Dental Practitioners’ most at risk are those who are:
4.2.1Hepatitis C antibody and PCR positive;
4.2.2Hepatitis B e antigen or Hepatitis B virus DNA positive; or
4.2.3HIV antibody positive.
4.3 The Board will use existing procedures for assessment of fitness to practice if concerns are raised that a Dental Practitioner is infected with a blood-borne virus.”
The Statement of Agreed Facts also includes an extract from the Queensland Government ‘Queensland Health Infection Control Guidelines’ dated November 2001, and reviewed in August 2005. Relevantly, they state as follows –
“1. PURPOSE
To protect patients from the risk of transmission of a blood borne virus from a health care worker and to provide health care workers with a safe working environment.
...
3. DEFINITIONS
Blood borne virus
For the purpose of this Policy, the term blood borne virus includes human immunodeficiency virus (HIV)...
Health care workers
Persons (including students) involved in the delivery of health services in health facilities (particularly where those persons have regular contact with patients or any contact with the blood or body substances from patients).
...
Exposure prone procedure
Invasive procedures include any surgical entry into tissue, body cavities or organs, or repair of traumatic injury. Exposure prone procedures are a subset of invasive procedures which are characterised by the potential for direct contact between the skin (usually finger or thumb) of the health care worker and sharp surgical instruments, needles, or sharp tissues (spicules of bone or teeth) in body cavities or in poorly visualised or confined body sites (including the mouth).
Procedures where the hands and fingertips of the worker are visible and outside the patient's body at all times, and internal examinations/ procedures that do not require the use of sharp instruments are not considered to be exposure prone and thus are unlikely to pose a risk of transmission of HIV ...
Exposure prone procedures have been associated with transmission of HIV, HBV from Hepatitis B e antigen positive and negative, HCV from HCV PCR (polymerase chain reaction) positive health care workers to patients, despite the health care worker's adherence to standard infection control procedures ...
Where there is uncertainty about the application of any of these defined terms (eg. whether certain procedures are exposure prone, or whether a particular incident of exposure to blood and body substances is significant), the matter may be referred to the Advisory Panel.
...
4.0 POLICY
...
4.4 Responsibilities of HIV/HBV/HCV infected health care workers
• Infected health care workers like all health care workers must strictly adhere to standard infection control precautions ...
• Health care workers are under no legal obligation to inform their supervisor of their HIV/HBV/HCV status. However, it is desirable that the infected health care worker does so in order that:
a) action can be taken to ensure that the duty of care to patients is not breached; and
b) the health and safety in the workplace of the health care worker and their co-workers can be maximised.
Therefore, health care workers should advise their supervisor if they are HIV/HBV/HCV positive and are, or have been, performing exposure prone procedures.
Where a health care worker discloses their HIV/HBV/HCV status to a supervisor, the supervisor must treat their disclosure with due regard to the health care worker’s right to confidentiality.
• Health care workers who are:
•Hepatitis C antibody and PCR positive;
• Hepatitis B e antigen or HBV DNA positive; or positive by nucleic acid amplification technique; or
• HIV antibody positive
(as determined by laboratory tests performed on two separate occasions) must not perform exposure prone procedures.”
The Hearing
The limited matters referred to in the directions made by Senior Member Endicott on 4 October 2010 came before me for hearing in the Tribunal on 28 January 2011.
Mr Larry Laikand, a solicitor with the Welfare Rights Centre Inc, appeared for the Applicant. Ms Mellifont SC, barrister, instructed by DLA Phillips Fox, appeared for the Board.
At the outset, Mr Laikand applied for a non-publication and non-disclosure order of the identity of the Applicant. There was no opposition to that, and I made the order.
At the hearing, I heard oral submissions and argument from Mr Laikand and Ms Mellifont SC. A recording of what happened at the hearing was made, and it has been transcribed. In coming to my decision, I have considered carefully the transcript, as well as the written submissions of the parties, in chief and in reply, filed as a result of Senor Member Endicott’s directions made 4 October 2010 and the filed Contentions of the parties. To the extent necessary, I have looked at the authorities variously relied upon by the parties.
An initial point to be recorded is that, despite Senior Member Endicott’s questions being phrased only in respect of whether the conduct of the Board constitutes indirect discrimination, submissions were made, in both the written[3] and oral submissions, on behalf of the Applicant, about direct discrimination. The Respondent’s submissions were framed almost exclusively in relation to indirect discrimination, and the Respondent objected, in its reply, to debate about direct discrimination, as being beyond the scope of Senior Member Endicott’s reference to me.
[3] Including the Contentions filed on 26 November 2010.
It seems to me that the Respondent’s objection is well taken. Although there may be some debate about the precise meaning of the relevant direction, it plainly relates only to the topic of indirect discrimination, and I think that, on a proper reading of it (and no doubt for reasons which were made apparent to the Senior Member at the directions hearing), I am not to consider, and I propose not to consider, submissions or argument on the topic of direct discrimination.
Next, the parties differ somewhat on what was the scope of the second part of direction number two in the 4 October 2010 directions.
The Board argued for a narrow construction, limiting the question to relating only to s 11 of the Act, dealing with indirect discrimination. Ms Mellifont SC submitted that the Applicant seemed to contend that the question should be construed more generally. That appears to be supported by some submissions which Mr Laikand made. At page 10 of the transcript, it is recorded that Mr Laikand said –
“There is a wider interpretation for that. The question as it appears to me is does Dental Policy No. 9 over-ride the Anti-Discrimination Act and remove it from the possibility of contravention of (that) Act? That is how I read and interpret that second question in that line, and to that it has been argued on behalf of the Respondent two particular exemptions ... I was concentrating on, alternatively, that Policy No. 9 overrides the Anti-Discrimination Act, and as such the submissions from the Respondent dealt with two streams, two strands that say that this Policy is valid and the Anti-Discrimination Act is of no effect in regards to that Policy.”
The ‘two strands’ relate to the Board’s reliance on exemption provisions in the Act, and provisions in other pieces of Queensland legislation relating to health issues. I shall come to those shortly.
For present purposes, I record that, in my view, the narrower of the two constructions is to be preferred.
It seems to me that the concept of whether the Policy ‘overrides’ the Act is not the correct question in terms of the Tribunal’s direction of 4 October 2010. The question is whether the Respondent’s reliance on the Policy removes its conduct from discriminatory conduct in terms of s 11 of the Act.
In both of the limbs of direction number two, the express reference is to the ‘conduct’ of the Board, rather than to any potential effect of the Policy per se, as a matter of law, as a matter of limitation or exclusion, in the facts of the present case, on the operation of the Act. It seems to me that the meaning and effect of the words of the Policy are important, but only in the context of the history of the matter as a whole.
In that regard, it also seems to me that I am limited in my consideration of the facts of the matter to the Statement of Agreed Facts. Both in written and oral submissions, Mr Laikand sought to go beyond the bounds of that document, referring to recent developments in medical science, publications from overseas, and the like, which do not feature in the Statement.
In the context of the reference of the particular questions to me, I think that that is impermissible and, while I appreciate the obviously detailed and very extensive work that is reflected in Mr Laikand’s submissions (oral and written), I propose to restrict myself, in reaching my decision in this particular reference, to the Statement of Agreed Facts.
Applicant’s Written Submissions
The starting point for the Applicant’s submissions is that he has been refused the ability to perform dentistry involving invasive intraoral procedures based upon the Policy.
The Applicant complains that the application of the Policy precludes him, because of his HIV positive status, from performing nearly all intraoral dental procedures. Implicitly, this complaint involves the proposition that applying the Policy, with the obvious consequences, involves unlawful discrimination. I note in passing that, in my view, the application of the policy is but one element of the conduct of the Board. I think that the whole of the relevant history must be considered in relation to the ultimate question of whether the conduct of the Board, including the application of its policy, contravenes the Act.
The Applicant complains that the application of the Policy is without reference to matters such as aseptic techniques, infectivity of the dental practitioner, or whether or not the viral load is undetectable.
In what seems to be a reference to indirect discrimination, the Applicant alleges that the Board, by applying the Policy, has imposed a term that dentists must be at nil risk of transmitting the HIV virus to practise exposure prone techniques[4].
[4] cf s 11(1) of the Act.
However, in paragraph 21 of the submissions in chief, it is conceded that the Policy does not say that and, rather, simply precludes or forbids a dental practitioner from performing invasive/exposure prone procedures on patients.
The Applicant complains that the policy prohibition constitutes a blanket prohibition, not allowing or providing for individual testing of the individual HIV positive dentists.
At paragraph 40 of the Applicant’s submissions in chief it is submitted that individual testing requirements should be undertaken to ascertain, in a specific instance, whether an HIV positive dentist should be entitled to perform exposure prone techniques.
Paragraph 41 expands on that same point, saying that a new policy may be able to take account of the extremely low and possibly nil risk posed by an undetectable viral load over a number of years, as well as the protection posed by universally accepted techniques required by every dentist.
Paragraph 42 further complains that the Policy does not provide for an individual risk assessment of any particular practitioner.
Paragraph 42(c) notes that dentists are required to treat patients who may be HIV positive.
Paragraph 42(d) asserts that there has never been a transfer, in the recorded Western world, of HIV from dentist to patient where the dentist has an undetectable viral load.
On the point that there could be a different policy, there are references to what happens in other countries.
In paragraph 47 it is again submitted that the Policy is ‘bad’ because there is no discretion as to the application of the Policy.
A further submission (paragraph 52) is that while the Policy might have been appropriate in respect of protecting the health of the community some years ago, “great changes have occurred since the isolation of the HIV virus both in the treatment of dentistry patients and in the treatment of persons who are HIV positive”.
In paragraph 57 it is submitted that “times have changed in what is needed to protect the public in regard to the prevention of the transmission of the HIV virus”.
In paragraph 58 there is an unsupported assertion, not referred to in the Statement of Agreed Facts, that “maintaining an undetectable viral load, periodic testing, and the maintenance of universal accepted techniques (gloves, masks, autoclaving for every patient) is adequate to prevent any real risk of HIV transmission”.
The submissions do not really deal with the second limb of the reference to me, and, with their mixture of references to direct and indirect discrimination, do not really deal with the elements that need to be established to constitute indirect discrimination. Indeed, the flavour seems to be that the real complaint is of direct discrimination.
In oral submissions, Mr Laikand stated that there was the potential for the Tribunal to find that the Policy contravened the Act and, further, invalidated that Policy.
I note that extensively throughout his oral submissions, Mr Laikand raised allegations about direct discrimination; about the Policy not involving any discretion; and about the changes in medical science in recent years. At page 9 of the transcript, he is recorded as saying that “I reject the submission that one must test the viral load on a daily basis to protect the safety of the public. It simply doesn’t make sense.”. This was in the context that the Advisory Panel for Health Care Workers with Blood Borne Viruses had stated that daily testing would be unsustainable in practice.
On page 12 of the transcript, Mr Laikand is recorded as having submitted that the Policy “takes away any ability to use the Anti-Discrimination Act as a mechanism to strike down policy”.
On the exemption point, there was a submission that the different pieces of relevant legislation could live together and were not inconsistent.
The Applicant also submitted that parliament, being aware of the anti-discrimination legislation, could have made it expressly clear in the later legislation, relied upon by the Respondent, that it intended the Act to be repealed or displaced by the provisions of the later legislation.
Respondent’s Written and Oral submissions
In its written submissions dated 30 November 2010, the Board raises the question as being whether the Policy offends the Act. As I have said, I think that that is too narrow a formulation, since the subject matter of my inquiry is the conduct of the Board, rather than the terms of the Policy per se. However, perhaps that formulation does not matter when the details of the submissions are considered.
The Board’s primary position is that the legislative scheme under which it operated at the relevant time overrode the provisions of the Act. Alternatively, it is submitted that the actions of the Board fall within exemptions to the Act itself.
Further, it is submitted that the Applicant cannot point to any conduct on the Board’s part that is prohibited by the Act.
The Board’s position is that the Applicant is required to practice dentistry in accordance with the Policy, as opposed to the Applicant’s position that the Policy amounts to a prohibition on him in respect of almost every aspect of general dental practice.
The submissions then address the question – does the conduct of the Board, in applying the Policy to the Applicant, constitute indirect discrimination under the Act, or does the Board’s reliance on that Policy render its conduct unlawful within the meaning of s 11 of the Act?
At this point it is appropriate to set out the terms of s 11(1) of the Act, which provide that indirect discrimination occurs if –
“...a person imposes, or proposes to impose, a term –
(a) with which a person with an attribute does not or is not able to comply; and
(b) with which a higher proportion of people without the attribute comply or are able to comply; and
(c) that is not reasonable.”
Section 11(2) of the Act provides that reasonableness –
“...depends on all the relevant circumstances of the case, including, for example—
(a) the consequences of failure to comply with the term; and
(b) the cost of alternative terms; and
(c) the financial circumstances of the person who imposes, or proposes to impose, the term.”
The Board’s submissions proceed on the assumption that the Applicant says that he has a relevant attribute, being ‘impairment’ as defined by the Act, namely, “the presence in the body of organisms capable of causing illness or disease”. That seems to me to be a reasonable assumption.
Then, the Board says that the Applicant does not meet the requirements of s 11(1)(a) because he can comply with the Policy by not performing exposure prone procedures, and he is capable of doing so.
Alternatively, the Board submits that the Policy might be interpreted as saying ‘exposure prone procedures shall be performed by persons who are not HIV positive’. In that circumstance, the Applicant may pass the tests in s 11(1)(b) and (c).
In that case, the Board submits that any resulting indirect discrimination nonetheless is lawful if it is reasonable, as required by s 11(1)(c) and s 11(2). The Board accepts that the onus of establishing reasonableness is on it, but submits that there is no prima facie presumption that a restriction is unreasonable[5].
[5] QFG & GK v JM [1997] QSC 206.
Further, it is submitted that the test of reasonableness is objective, in the sense that a reasonable person could hold the view in question, by reference to Waters v Public Transport Corporation (1991) 173 CLR 349 at 395 and In Re W (an infant) [1971] AC 682 at 700.
I accept that this is a correct statement of the law on the point.
The Board submits that what is considered relevant in determining reasonableness according to these principles will differ depending upon the individual circumstances of each case, but that relevant factors include whether there is a logical and understandable basis for the requirement or condition. Indeed this, I accept, has been described as “an important factor”[6].
[6] State of Victoria v Schou [2004] VSCA 71.
With respect to s 11(2)(c), the Board submits that the law is that the mere fact that there is some alternative, however difficult or contrived, does not mean that a rule that does not adopt it is unreasonable[7].
[7] Relying on Schou at [27] and [37].
The Board notes that Callaway JA in Schou at [43] stated –
“Inflexibility may be part and parcel of a requirement, condition or practice. Very often it is justified. Even more often, a person alleging indirect discrimination will not be able to show that the inflexibility is not reasonable.”
On this basis, the Board submits that the Policy in question is a reasonable one, HIV positive infection being a life threatening disease, so that the Board’s formulation, adoption and application of the Policy involves a view that is not one that no reasonable person could hold. Therefore it is submitted that s 11(1)(c) does not apply, so that on the alternative basis, there is no indirect discrimination.
The Board’s written submissions then go on to deal with the issue of exemptions and the issue of the implicit repeal of the ADA.
As to the issue of exemptions in the Act, reference is made to there being no prohibition on the imposition of “genuine occupational requirements”: s 25. Reliance is also placed on s 107 and s 108 of the Act, which provide for exemption from what otherwise would be discrimination on certain grounds, namely:
“Public Health
A person may do an act that is reasonably necessary to protect public health.
Workplace Health and Safety
A person may do an act that is reasonably necessary to protect the health and safety of people at a place of work.”
The Board submits that its role was to protect the public, and that the purpose of its Policy no. 9 was to meet this obligation. It accepts that the onus is upon it to establish that it falls within an exemption, this to be proved on the balance of probabilities.
Relying on MC & Ors v Queensland Corrective Services Commission (1998) EOC 92-940 at 78,260, the Board submits that whether there is a relevant exemption is to be assessed (in part) objectively, and that relevant factors to be taken into account will include whether the policy has been applied consistently; the enquiries made by the party seeking to rely on the policy; whether proper advice has been taken; and whether the discriminatory conduct would be conducive to public safety. On the latter point, it is submitted that it is not necessary to establish that failure to take the relevant action will definitely result in public health disasters, by reference to MC & Ors [supra].
For the Board, it is submitted that the policy was applied consistently to all registrants; that it made enquiries and sought advice from Queensland Health and the expert, Dr Whitby; that it referred Dr M’s circumstances to a hearing before a Health Assessment Committee; and that it made the other enquiries and took the other steps which are detailed in the Statement of Agreed Facts.
Relying in particular on Dr Whitby’s opinion and conclusions (referred to above), the Board submits that the application of the policy was conducive to public safety and that therefore, even if there is prima facie discrimination, it is exempted from the Act.
A further and alternative submission is made for the Board, although perhaps not pressed very strongly. It is that the relevant provisions of the Act implicitly are repealed by later and more specific pieces of Queensland legislation, to the extent of any inconsistency. The legislation is the Dental Practitioners Registration Act 2001 (repealed) and the Health Practitioners (Professional Standards) Act 1999, both of which empowered the Board to take action to protect the public.
Relying upon the authority of B v Queensland Nursing Council [2002] QADT 4, and the reliance therein to the judgment of Sir Samuel Griffiths CJ in Goodwin v Phillips (1908) 7 CLR 1, the Board submits that the two Acts referred to were later pieces of legislation than the Act, and that, to the extent of any inconsistency, the Act therefore is repealed by implication, thus allowing the Board to take action that may otherwise be discriminatory.
The Board filed Submissions in Reply. First, reference was made to the terms of the order which brought the matter before me. That order, as I have indicated earlier, related only to the topic of indirect discrimination. The Board objected to the Applicant seeking to expand the terms of enquiry to include matters relating to direct discrimination, and, as I have indicated above, I consider that objection to be well taken.
Next, in its reply submissions, the Board responded to a number of authorities relied upon by the Applicant, where complaints of indirect discrimination were successful. It was submitted that those authorities can be distinguished because, essentially, they related to the indiscriminate or blanket application of policies without appropriate consideration, seeking advice or expert opinion. The Board submitted that, in the case of Dr M, it made enquiries of Queensland Health and an advisory panel convened for the purpose of considering healthcare workers infected with blood-borne viruses; that it convened a Health Assessment Committee and obtained the independent opinion of Dr Whitby; that it gave the Applicant the opportunity to make submissions in writing and to attend before the Committee; that it did have due regard for the Applicant’s individual circumstances and gave careful consideration to the definition of ‘exposure prone procedure’ and how this should be applied to dentistry.
Finally and fundamentally, as the submissions put it, the Board submitted that the policy does not indirectly discriminate against the Applicant, simply because it is reasonable and that, on the Statement of Agreed Facts, that conclusion should be drawn as a matter of fact.
In that regard, reference was made to the nature of blood-borne viruses; the consequence of being infected with a blood-borne virus; the obligations of healthcare workers towards their patients; and the obligations of employers and healthcare workers towards their co-workers.
Further, it was submitted that the policy was eminently reasonable because HIV is contagious; HIV leads to AIDS; the symptoms of HIV may only be managed but cannot be cured; the level of contagion of HIV while under treatment is not known; persons who are infected with HIV then AIDS almost certainly die; persons who are infected with HIV from a healthcare worker may infect others without knowing it; and HIV is known to affect unborn children.
While accepting that the Board, in the context of reasonableness, was obliged to consider alternatives, it was submitted that, in effect, there was no reasonable alternative because there is no scientific evidence proving that HIV under management is not contagious. In this context, it was submitted that the inflexibility of the policy, reached after lengthy consideration, did not of itself render the policy unreasonable.
Finally, objection was taken to the Applicant relying upon policies and statements in his material (for instance regarding Swiss and Israeli statements) when such material is not before the Tribunal.
Ms Mellifont SC made oral submissions at the hearing. Largely, these amplified the written submissions, and I do not need to refer to them at length. I shall mention a couple of matters.
Three preliminary points were raised.
(a)First, it was submitted that the policy prevents a person who is HIV positive from conducting exposure-prone procedures, and that the Applicant can comply with that condition in the sense that he can comply by not conducting the relevant procedures.
(b)Second, it was submitted that, with respect to s 11(1)(b), a term imposed has to involve a higher proportion of persons without the relevant attribute being able to comply. The submission was that if the application of the policy is one of indirect discrimination, there is no base of people against which to compare, because the prohibition is against all dentists who are HIV positive.
(c)The third threshold issue related to the question of reasonableness, mentioned several times above. Reference was made to the decision of Justice Ambrose of the Supreme Court Queensland in the matter of QFG & Anor v JM. I accept that the decision represents good law today. Particular emphasis was placed on his Honour’s statement that whether a term is reasonable or not reasonable, in the context of s 11, is simply a matter for judgment by the Tribunal on the evidence before it, against a background that there is no prima facie presumption that the relevant term is unreasonable. His Honour stated that the effect of the section was simply to require a Respondent to ensure that evidence was placed before the Tribunal leading to a conclusion more probably than not that the practice or term was reasonable.
The submission was that, on all of the evidence, the decision by the Board to adopt and enforce the policy was, as a matter of fact, a reasonable one, being a value judgment, based on a logical and understandable basis[8]. In that context, particular emphasis was placed on Dr Whitby’s independent expert report, to which I have referred at length above. The submission ultimately was that where the Board had made genuine enquiries with an expert, and where the considered opinion of the expert was that viral loads fluctuate from day to day and that there is a finite, although low, risk of HIV transmission, a readily discernible, logical and understandable basis for the policy exists.
[8] As above, by reference to the case of Schou.
Further, oral submissions were made with respect to the matter of exemptions and later legislation overriding the earlier more general provisions of the Act, but they need not be repeated here.
Conclusions and Decision
First, I wish to record that I consider that the terms of the Tribunal’s order no. 2, made on 4 October 2010, strictly limits my enquiry to being as to whether the conduct of the Respondent constitutes indirect discrimination under the Act, or whether the Respondent’s reliance on the policy removes its conduct from discriminatory conduct in terms of s 11.
I consider that the submissions made to me for the Applicant, involving direct discrimination, were beyond the remit to me, and I will restrict myself to the matter of indirect discrimination only.
Further, it seems to me that my enquiry is as to the conduct of the Board, and not simply as to the terms of the policy. I consider that the relevant conduct is that revealed in the Statement of Agreed Facts and involves, in particular, the way in which the policy came to be adopted, including the investigations and enquiries made by the Board, the information gathered by or known to the Board, the way in which the Board dealt with the Applicant in respect of the matter, and then, ultimately, the formulation, adoption and application of the policy to practising dentists in general and to the Applicant in particular.
Two things need to be recorded about that. The first is that my enquiry is, in my view, limited to the factual matters which emerge from the Statement of Agreed Facts. It would not be in keeping with the terms of the order referring the matter to me, or, indeed, with wider notions of natural justice, for me to take into account matters going beyond the Statement of Agreed Facts, which Mr Laikand asked me to do. One example of this was Mr Laikand’s unsupported assertion that there has never been a transfer, in the recorded western world, of HIV from dentist to patient, where the dentist has an undetected viral load. That is a matter which does not appear in the Statement of Agreed Facts, and presumably might require considerable investigation to verify or otherwise. I mention it as an example of matters which are simply not possible for me to consider or make any judgment about and which, consequently, I shall ignore: see para [84] above. Another instance is the submission, referred to in para [85] above, about what happens in other countries.
The second point about that is that the precise terms of the policy, while relevant in the context of the Board’s conduct as a whole, are not the sole, or even, in my opinion, primary, topic for my consideration. Much of Mr Laikand’s submissions focus upon the terms of the policy, its alleged inflexibility, the absence of discretion as to its application, and upon whether or not a different policy might have been formulated which was more favourable to the Applicant or to someone in the Applicant’s position, with the result that the Applicant was discriminated against.
To take one example, the Applicant complains that the policy prohibition constitutes a blanket prohibition, not allowing or providing for individual testing of individual HIV positive dentists. In a literal sense that is true, but it is a complaint about the terms of the policy rather than whether the development, promulgation and application of the policy involves unlawful discrimination. It is true that the policy might have been differently worded, and that the Board, upon analysing all of the information it had, might have come up with a different policy. But that does not go to whether the Board’s conduct, from beginning to end, as it were, involved unlawful indirect discrimination. It is simply a complaint that the terms of the policy could have been more favourable to the Applicant here.
This is a convenient point at which to deal with one of Mr Laikand’s submissions[9], which was to the effect that if the Tribunal found that the policy (sic) contravened the Act, the policy thus would be invalidated, leaving a policy void, so that the Tribunal could then make recommendations to the Board about the contents of a new policy to fill the void, such as that the Board should have a discretion in an individual case, taking into account the facts of the particular practitioner’s medication, viral load, willingness to accept antiseptic techniques, et cetera.
[9] See paras [91] and [93] above.
I reject this submission. If the Board’s conduct, in formulating and applying the policy, involves unlawful discrimination, then so be it – and the Act provides for potential consequences of that. However, it seems to me that the policy would stand and not be rendered void by that fact. Further, I do not think that the Tribunal has the power to make recommendations for the wording of a new or, indeed, alternative policy for the Board. The only question is whether the relevant conduct unlawfully indirectly discriminates against the Applicant. In that regard I wish to record that I do not consider that the Tribunal has power to grant the remedies sought in the Applicant’s Contentions with regard to the Applicant being enabled to perform all aspects of general clinical dentistry on patients without restriction, and with regard to monitoring the Applicant’s own viral load through his continuing treatment with his medical practitioners of his own choice.
I turn now to the application of s 11 of the Act to the agreed facts.
The Respondent’s first point is that the Applicant does not meet the requirements of s 11(1)(a) because he is able to comply with the policy, which forbids him to perform exposure-prone procedures. If that is right, the Applicant falls at the first hurdle, as far as indirect discrimination is concerned.
I think that the submission has merit, but I think, also, that it would be an unsatisfactory basis upon which to resolve this matter, given its history and the way in which the arguments have been joined. I think it is more appropriate, in the circumstances, to analyse the matter on the basis that it is necessary to consider ss 11(1)(b) and (c).
I think that there is force in the Respondent’s submission that, with respect to s 11(1)(b), there is no reference group of people to which the “higher proportion” test might be applied[10].
[10] See para [129] above.
Again, while I think the submission has merit, there is a technicality about it which would make it, I think, an unsatisfactory basis on which to resolve the issues as a whole.
That brings me to the issue of reasonableness, because the Board’s primary position on this part of the case is that there is no unlawful indirect discrimination because the evidence establishes that the term, i.e. the policy, is in fact reasonable in all of the circumstances. I see this as being the nub of the matter, and in that regard I reiterate that I think that the proper focus of my enquiry is the overall conduct of the Board, as revealed in the Statement of Agreed Facts, in formulating, developing and applying the policy, involving more than a narrow consideration of the particular terms of the policy and the particular effect of those terms on the Applicant.
The Board accepts that it bears the onus of establishing reasonableness, and I consider that the references, in the submissions by the Board, to the law on that point are accurate. In particular, I accept that a, or perhaps the, key question is whether, objectively speaking, a reasonable person in the Board’s position could hold the view, i.e. propound and apply the policy, and whether there is a logical and understandable basis for it. It seems to me that, on the whole of the evidence, not only is there a logical and understandable basis for the policy – so that the test of reasonableness is passed – but that, in fact, the policy patently is reasonable, so that a reasonable person in the position of the Board could promulgate and enforce it.
It seems to me that the Board has acted carefully, consistently, and with propriety in considering what policy to adopt and in dealing in particular with the Applicant in that regard.
The Statement of Agreed Facts shows that, over a considerable period of time, the Board made appropriate enquiries, conducted appropriate investigations, made reference to appropriate authorities, and gave the Applicant proper opportunities to make submissions to it. The policy was the result of the Board’s plainly careful consideration of the results of all of those steps. I note in particular, in this regard, that the Board made enquiries of Queensland Health; that it had regard to the report of an advisory panel convened for the purposes of considering healthcare works infected with blood-borne viruses; that it convened a Health Assessment Committee to consider the particular case of the Applicant; that it obtained the independent opinion from Dr Whitby; that it considered the nature and consequences of a person being infected with a blood-borne virus, and in particular HIV; that it took advice from independent experts, on more than one occasion, on the subject of exposure-prone techniques; and that it gave the Applicant numerous opportunities to present his case.
I accept that the expert opinion of Dr Whitby, considered by the Board, and quoted by me above at some length, was to the effect that there was a low, unquantifiable but real risk, on a day-to-day basis, of transmission of the HIV virus from the Applicant to a patient when the Applicant was performing exposure-prone procedures. I note that Dr Gowers was of the view that, by adopting appropriate procedures, it would be safe for the Applicant to practice such procedures. However, this was but one piece of the many pieces of information which the Board was required to consider, and I do not think that it was unreasonable of the Board to reach the conclusion that it did, despite Dr Gowers' opinion.
The finding as to reasonableness concludes the matter of indirect discrimination in favour of the Respondent. However, for completeness, I should consider the other submissions made by the Respondent.
I think that, if I am wrong on the matter of reasonableness, the policy is a genuine occupational requirement for dentists, and that it has been promulgated and applied in a way that is reasonably necessary to protect public health and the health and safety of people at a place of work. That means that, were it or its application otherwise discriminatory, it falls within the exemptions contained in s 107 and s 108 of the Act.
This conclusion arguably defeats any claim which the Applicant has for direct discrimination. However, that is not a matter which was referred to me, and the conclusion is not necessary for my decision, as I see it, on the matters referred to me. I note it so that the parties may consider their respective positions as to the future conduct of the proceedings.
In this context, I note the submissions made by Mr Laikand in his oral reply, which appear at transcript page 27. He said in part –
“... I can agree with the Respondent’s assault or attack that Dental Board Policy No. 9 is not an instance of s.11 of the Anti-Discrimination Act, as there is no term or condition imposed as far as s.11(1), ... and in fact the instance of reasonableness is not in issue as far as s.11(2) ...”
The nature and extent of the concession made is not clear to me, but I record it for the sake of completeness, and because it may have a bearing on the course which the Applicant decides to take after the publication of this decision.
I reach this conclusion bearing in mind the conduct of the Board, to which I have referred above, and the conclusion of Dr Whitby with respect to risk.
Further, it seems to me that the Board’s powers under the repealed Dental Practitioners Registration Act 2001 and the Health Practitioners (Professional Standards) Act 1999 do implicitly repeal the Act to the extent of any inconsistency. They are later pieces of legislation, with an obviously particular public purpose, which purpose is given effect to by the terms and application of the Policy.
In that regard, I do not accept the submission of Mr Laikand to the effect that the relevant pieces of legislation can “live together”, in the material sense. I accept his submission that Parliament could have made it expressly clear that it intended the subsequent legislation, relevantly, to override the Act. However, the fact that it did not do so – which is common ground – simply relegates the issue to one of statutory interpretation of the various pieces of legislation, by reference to the accepted canons of such interpretation. I have approached the matter in that way and reached my conclusions accordingly.
Conclusion
I make the following orders:
(1)Until further order of this Tribunal or other competent authority, I direct that the disclosure of the identity of the Applicant, or details of which would tend to identify the Applicant, is prohibited.
(2)I find that the conduct of the Respondent, as referred to in the Statement of Agreed Facts filed in this matter by the parties, does not constitute indirect discrimination under the Anti-Discrimination Act 1991.
(3)Should that finding be in error, I find that the Respondent’s reliance on its Policy no. 9, referred to in the Statement of Agreed Facts, removes its conduct from indirect discriminatory conduct in terms of s 11 of the Anti-Discrimination Act 1991 because –
a. the conduct of the Respondent, in developing, formulating, publishing and applying the policy, falls within an exemption to the Anti-Discrimination Act 1991, because the conduct of the Board in that regard is reasonably necessary to protect public health and to protect the health and safety of people at a workplace, as provided for in s 107 and s 108 of the Anti-Discrimination Act 1991; and
b. further or in the alternative, the Dental Practitioners Registration Act 2001 (now repealed) and the Health Practitioners (Professional Standards) Act 1999 permitted the Board to carry out the conduct complained of (as involving indirect discrimination under the Anti-Discrimination Act 1991) to protect the public, and it did so lawfully.
(4)Each of the parties is to file in the Tribunal and serve on the other, within 21 calendar days of the date of publication of this decision, short written submissions as to what order, if any, the Tribunal should make as to the costs of the reference to me, or more generally as to the costs of the application in the light of this decision.
(5)Within 21 calendar days of the date of publication of this decision, the Applicant is to file in the Tribunal and serve upon the Respondent a notice stating whether the Applicant intends to pursue the application on the basis of an allegation of direct discrimination, or whether the Applicant, in the light of this decision, abandons his application. In the event of the former, the Applicant’s notice is to state that he requests a directions hearing at an early date to determine the future conduct of the matter. In the case of the latter, each of the parties is to file in the Tribunal and serve on the other party, within 21 days of the date of the Applicant’s notice, short written submissions as to what orders the Tribunal should make, if any, in respect of the costs of the proceeding as a whole, other than the costs of the matter insofar as they relate to the reference to me pursuant to the direction of Senior Member Endicott dated 4 October 2010.
(6)Thereafter, the Tribunal will determine all questions of costs of the proceeding to date, or as a whole, on the papers and will publish its decision and reasons in that regard.
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