Nowak (a pseudonym) v Walsh (a pseudonym); (Discrimination)
[2023] ACAT 3
•12 January 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
NOWAK (a pseudonym) v WALSH (a pseudonym)
(Discrimination) [2023] ACAT 3
DT 72/2022
Catchwords: DISCRIMINATION – complaint about indirect discrimination by a psychologist allegedly imposing three conditions on the provision of ongoing therapy to an autistic child – where complainant was directed to file evidence to establish a rebuttable presumption that indirect discrimination has occurred before respondent required to provide their response to the complaint – where after hearing from the parties each part of the complaint was found to be lacking in substance – complaint dismissed under section 32(2)(b) of the ACAT Act
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 32
Discrimination Act 1991 ss 4A, 5AA, 7, 8, 20, 70
Human Rights Commission Act 2005 ss 53A, 53CA
Cases cited:Melway Publishing Pty Ltd v Robert Hicks Pty Ltd [2001] HCA 13
Pojohishgar v University of Canberra [2022] ACAT 53
Tribunal:Senior Member M Orlov
Date of Orders: 12 January 2023
Date of Reasons for Decision: 12 January 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 72/2022
BETWEEN:
EVE NOWAK (a pseudonym)
Applicant
AND:
DR ANNABEL WALSH (a pseudonym)
Respondent
TRIBUNAL:Senior Member M Orlov
DATE:12 January 2023
ORDER
The Tribunal orders that:
The complaint is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
Pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008, until further order of the Tribunal:
There is to be no public access to the file.
The publication or disclosure of the following, that may identify the parties, is prohibited:
(a) evidence given at any hearing of this matter;
(b) matters contained in documents filed with the Tribunal; and
(c) matters contained in documents received by the Tribunal.
………………………………..
Senior Member M Orlov
REASONS FOR DECISION
Introduction
The complainant, to whom I will refer as Ms Eve Nowak,[1] made a complaint to the Human Rights Commission (HRC) about a psychologist, to whom I will refer as Dr Annabel Walsh,[2] alleging unlawful discrimination in the provision of services against Ms Nowak’s then 9 year old son, who has autism and a severe communication disorder. He is also unvaccinated against COVID-19, as is his mother.
[1] ‘Eve Nowak’ bears no resemblance to the applicant’s real name. We have adopted a pseudonym to preserve her privacy and the privacy of her child.
[2] ‘Annabel Walsh’ bears no resemblance to the psychologist’s real name. We have adopted a pseudonym to preserve her privacy.
The gist of the complaint is that Dr Walsh is alleged to have imposed conditions on the provision of ongoing therapy for the child which were unsuited to his needs and delayed his access to appropriate psychological support. The final straw from Ms Nowak’s perspective is that after initially contacting Dr Walsh in late March 2021 and attending an initial consultation in early August, where she was informed for the first time that Dr Walsh could offer appointments on a cancellation basis only, Ms Nowak claims that in late December 2021 Dr Walsh advised her by email that she would see only double-vaccinated patients for face-to-face appointments from February 2022. Ms Nowak was, as she describes it, outraged and had no further communications with Dr Walsh.
On 10 November 2022, the HRC referred the discrimination complaint to the ACAT under section 53A of the Human Rights Commission Act 2005 (HRC Act).
On 30 November 2022, the complaint came before me for directions. In response to my attempts to clarify the issues for determination, Ms Nowak repeatedly restated the circumstances that she says amount to unlawful discrimination but, other than making it abundantly clear that she felt aggrieved, was unable to explain how the circumstances could amount to discrimination in relation to the provision of services within the relevant statutory context.
Discrimination is a technical area of law. Complainants in discrimination matters are usually self-represented. I am not aware whether the HRC provides information or guidance to complainants to help them make an informed decision whether to pursue the matter in the ACAT where conciliation has failed or not taken place. Unfortunately, the experience of the tribunal is that many complainants request the HRC to refer their complaint to the ACAT without, it would appear, giving any informed consideration to, or even being more than passingly aware of, the statutory framework within which the complaint must fit for it to have any reasonable prospect of success. I include in this an understanding of the meaning of ‘discrimination’, a foundational term which is defined in section 8 of the Discrimination Act 1991 (the Discrimination Act or the Act), but which requires reference to, and a broader understanding of, other sections of the Act which inform the meaning of ‘discrimination’. These include section 4A (which defines the meaning of ‘doing’ an act), section 5AA (which defines the meaning of ‘disability’), section 7 (which limits the application of the Act to discrimination on the grounds of a ‘protected attribute’) and the provisions of Part 3 of the Act (which make unlawful some but not all forms of discrimination).
Moreover, there is an almost universal lack of awareness on the part of complainants of how the evidentiary onus of proof shifts in discrimination matters – in particular, what are the minimum facts that a complainant must be able to prove for a rebuttable presumption to arise that unlawful discrimination has occurred, before the person against whom the complaint is made may be required to provide evidence to rebut the presumption,[3] or where the legal burden of proof lies to establish an exception, excuse, qualification or justification under the Discrimination Act for conduct that would otherwise be unlawful discrimination.[4]
[3] HRC Act, section 53CA
[4] Discrimination Act, section 70
In exercising its functions, the ACAT must seek to ensure that its procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice and are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceedings. In doing so, the ACAT must observe natural justice and procedural fairness.[5]
[5] ACT Civil and Administrative Tribunal Act 2008, section 7
The following statement appears in the ACAT Annual Review 2021-22:
While the ACAT’s processes are flexible and designed for parties to represent themselves, discrimination cases can be complicated. The ACAT usually adopts a step-by-step approach to the preparation of a discrimination matter for hearing, bringing the parties together for a directions hearing at the conclusion of each step. This approach enables each stage of preparation to be understood and undertaken without a self-represented litigant becoming overwhelmed.
There are, nevertheless, important constraints on the assistance the tribunal can provide to a self-represented litigant. It is not part of the tribunal’s role to provide advice to a party about how to run their case, or otherwise to enter into the arena. That the law in this area is technical is unfortunate. Nevertheless, it is a fundamental requirement of procedural fairness that a respondent must know the case they are required to meet. The responsibility to identify the essential elements of a complaint about unlawful discrimination and the facts a complainant intends to prove to establish that unlawful discrimination has occurred lies with the complainant.
In this case, after hearing from Ms Nowak, I thought it was necessary and appropriate to depart from the tribunal’s usual step-by-step approach to preparing a matter for hearing described earlier. After explaining the factual matters Ms Nowak must establish to make good her complaint and the statutory framework within which that must occur, including the requirement in section 53CA of the HRC Act that a complainant must meet a minimum evidentiary threshold for a rebuttable presumption to arise that discrimination has occurred before the evidentiary onus shifts to the person against whom the complaint is made, I made the following orders:
1. By 3:00 pm on 9 December 2022, the complainant must give to the Tribunal and to the respondent:
(a)a statement in writing specifying, clearly and succinctly –
(i)her son’s protected attribute (refer to section 7 of the Discrimination Act 1991);
(ii)the condition or requirement that the respondent imposed, or proposed to impose, that had, or was likely to have, the effect of disadvantaging her son because of her son’s protected attribute (refer to section 8(3) of the Discrimination Act 1991);
(iii)whether the complaint about unlawful discrimination is made under section 20(a), (b) and/or (c) of the Discrimination Act 1991;
(b)a statutory declaration detailing in chronological order the relevant telephone, email and face to face communications between the applicant and the respondent and attaching copies of relevant documents that the complainant says meets the minimum evidentiary threshold to give rise to a rebuttable presumption that indirect discrimination has occurred in the provision of services (refer to subsections 53CA(1)(b), 53CA(2)(a)(ii) and 53CA(2)(b)(ii) of the Human Rights Commission Act 2005).
2. On the Tribunal’s initiative, the complaint is listed for hearing at 2:00 pm on 12 December 2022, to determine whether –
(a)the evidence served in accordance with paragraph 1(b) meets the minimum evidentiary threshold to give rise to a rebuttable presumption that indirect discrimination has occurred in the provision of services; and
(b)if not, whether the complaint should be dismissed under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 on the grounds that it is lacking in substance.
On 9 December 2022, Ms Nowak filed her witness statement attaching relevant email communications with Dr Walsh and Dr Walsh’s response to the complaint in a letter to the HRC. Ms Nowak also filed a statutory declaration in which she set out the elements of her complaint of indirect discrimination.
I heard oral submissions from both parties on 12 December 2022 after which I reserved my decision.
Unlawful discrimination in the provision of services
A person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has one or more protected attributes.[6]
[6] Discrimination Act, section 8(3)
However, a condition or requirement does not give rise to discrimination if it is reasonable in the circumstances.[7] In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be considered include the nature and extent of any resulting disadvantage, the feasibility of overcoming or mitigating the disadvantage, and whether the disadvantage is disproportionate to the result sought by the person who imposes, or proposes to impose, the condition or requirement.[8]
[7] Discrimination Act, section 8(4)
[8] Discrimination Act, section 8(5)
It is unlawful for a person who provides services, whether for payment or not, to discriminate against another person by refusing to provide those services to the other person,[9] or in the terms or conditions on which the provider provides those services to the other person,[10] or in the way in which the provider provides those services to the other person.[11]
[9] Discrimination Act, section 20(a)
[10] Discrimination Act, section 20(b)
[11] Discrimination Act, section 20(c)
Where a complaint is made about indirect discrimination, section 53CA of the HRC Act provides that there is a rebuttable presumption that discrimination has occurred if the complainant establishes that the condition or requirement has, or is likely to have, an effect of disadvantaging the other person and presents evidence that would enable the ACAT to decide, in the absence of any other explanation, that the effect of disadvantaging the other person is because of a protected attribute.[12]
[12] HRC Act, sections 53CA(2)(a)(ii) and (b)(ii)
The presumption is rebutted if the person complained about establishes that the effect of disadvantaging the other person is not because of that person’s protected attribute.[13]
[13] HRC Act, section 53CA(3)(b)
Where a presumption of indirect discrimination is not rebutted, the onus is on the person against whom the complaint is made to establish that the condition or requirement is reasonable in the circumstances, considering the matters referred to in section 8(5) of the Discrimination Act. The onus of establishing an exception or exemption to discrimination is always on the person seeking to rely on it.[14]
[14] Discrimination Act, section 70
A complainant must establish both of the matters in subsections 53CA(2)(a)(ii) and (2)(b)(ii) for a complaint of indirect discrimination against a person. It is not enough to establish how the person is, or is likely to be, disadvantaged by a condition or requirement imposed, or proposed to be imposed, on them. A complainant must also establish why the person is, or is likely to be, disadvantaged by a condition or requirement.
In Pojohishgar v University of Canberra, I said:
In a complaint of indirect discrimination, the issue of causation may be framed as a question – Why was the person disadvantaged by the condition or requirement imposed on them? Unless an applicant presents evidence that would enable the tribunal to decide, in the absence of any other explanation, that the question should be answered ‘because of the person’s protected attribute’, the respondent has no case to answer. The complaint must be dismissed without the respondent being required to go into evidence.[15]
The elements of Ms Nowak’s complaint
[15] Pojohishgar v University of Canberra [2022] ACAT 53 at [5]
Dr Walsh is a person who provides services as a psychologist and therefore is subject to section 20 of the Discrimination Act.
Ms Nowak’s son has a disability – namely, autism and a severe communication disorder – which is a protected attribute within the meaning of section 7(e) of the Discrimination Act. She accepts that her son’s vaccination status is not a protected attribute but says that it is “related to his disability and the numerous diagnoses that he has”. She explained in oral evidence to the Tribunal that her son has other serious health conditions and that they are still investigating the causes of his disability. She says that uncertainty about possible complications arising from vaccination against COVID-19 and the desire to avoid putting him at risk, has led the family to decide that he should not be vaccinated.
Ms Nowak alleges that Dr Walsh indirectly discriminated against her son in connection with the supply of ongoing therapy, in breach of section 20(b) of the Discrimination Act. Ms Nowak alleges that Dr Walsh did so on three separate occasions by the conditions Dr Walsh imposed on the provision of such services. It is convenient to view the complaint as having three parts.
First, Ms Nowak alleges that before agreeing to accept her son as a patient, Dr Walsh required her and her son to attend 3 hours of initial consultations on 6 and 7 August 2021, in circumstances where Ms Nowak was “misled” into believing that Dr Walsh was taking new referrals.
Second, Ms Nowak alleges that following the initial consultation, Dr Walsh offered to accept her son as a new patient only on the basis that appointments would be offered to him on a cancellation basis, which Ms Nowak says was inadequate to meet her son’s needs and contrary to the basis upon which Ms Nowak had sought Dr Walsh’s assistance.
Third, Ms Nowak alleges that after not hearing from Dr Walsh for several months, on 27 December 2021 she received an email from Dr Walsh advising that “she will only see double vaccinated patients for face-to-face appointments”. She says this effectively prevented her son from accessing Dr Walsh’s services as consultations via Telehealth were not a viable option.
Ms Nowak described the resulting disadvantage in the following terms:
Throw out the entire period since we engaged with [Annabel]. [My son] has missed the opportunity to seek another provider (with extensive over a year waitlist) as we were misled to belief [sic] we could access [Annabel] services at the time.[16]
Ms Nowak’s witness statement
[16] Ms Nowak’s statutory declaration made 8 December 2022 (Stat dec), para 2(c)
On 24 March 2021, Ms Nowak contacted Dr Walsh via the ‘APS Find a Psychologist’ website. Her message said, “Hi, I would like to access psychological therapy for my 9 year boy. He is ASD, ADHD.”[17]
[17] Witness statement of Eve Nowak dated 8 December 2022, annexure A Nowak
Dr Walsh replied by email later the same day. The date and time of sending and other details are in Spanish, suggesting that Dr Walsh was overseas at the time. The reply said (in English), “I am happy to take on new referrals but I’m now booking into August. Is that OK for you?”[18]
[18] Witness statement of Eve Nowak dated 8 December 2022, annexure A
Ms Nowak replied on 25 March 2021, “Fantastic! Yes please add [my son] to your wait list (Born [date]), if there is a chance of a cancelation please let us know. As most of us we are in need of support. For us is more than ever as we have received few extra diagnosis”.[19] She did not explain what she meant by “few extra diagnosis”.
[19] Witness statement of Eve Nowak dated 8 December 2022, annexure A
On 5 April 2021, Dr Walsh advised by email that, “I always interview parents ALONE first, and then make another time to see your child”.[20] She offered Friday, 6 August 2021 at 2:00pm for the parent interview and Saturday, 7 August 2021 at 1:30pm for the consultation with Ms Nowak’s son. Ms Nowak accepted the appointments by return email and asked to be seen earlier if there were any cancellations.
[20] Witness statement of Eve Nowak dated 8 December 2022, annexure A
On 3 August 2021, Dr Walsh emailed Ms Nowak to check whether “you are still OK for the parent interview re [the son] on Friday 6 August 2-4pm”[21] adding that she would send all the information tomorrow if Ms Nowak was able to attend. A short time later, Dr Walsh emailed Ms Nowak asking her to respond to a mobile telephone number as her email inbox was full. Ms Nowak responded by text saying “Yes”.[22]
[21] Witness statement of Eve Nowak dated 8 December 2022, annexure A
[22] Witness statement of Eve Nowak dated 8 December 2022, para 8
On 4 August 2021, Dr Walsh advised that, “My emails are OK to use again now. Can you please email and tell me if you are seeking an ASD OR and (sic) ADHD assessment. They are two different processes and so I need to prepare the appropriate template.”[23] I understand that ‘ASD’ refers to Autism Spectrum Disorder and ‘ADHD’ refers to Attention-Deficit/Hyperactivity Disorder (sometimes abbreviated to ‘attention deficit disorder’).
[23] Witness statement of Eve Nowak dated 8 December 2022, annexure A
According to Ms Nowak’s witness statement:
I have called [Dr Walsh] immediately to clarify. I said that as per emails before, we already have many diagnoses, few recent ones early Feb 22, and are looking for ongoing and long-term therapy support to help us manage my son’s well-being. I explained that my son has autism and a severe communication disorder and that we need face to face appointments as online didn’t work in the past.
[Dr Walsh] insisted that I was seeking a diagnosis assessment for which I clarified is incorrect. She then agreed and reassured that she can take new referrals but we need the 3 hours pre-requisite appointment so she can get to know us.
I agreed to proceed despite I felt a 3 hr initial appointment was excessive, but we needed help asap which I expressed to [Dr Walsh] waitlist are for over a year with other practitioners and we have already waited on [Dr Walsh] for almost half a year.[24]
[24] Witness statement of Eve Nowak dated 8 December 2022, para 10
On the same day, Dr Walsh emailed Ms Nowak to confirm the time and date of the appointment, attaching some forms to complete and a COVID-19 screening questionnaire to complete on the day of the session.
On 6 August 2021, Ms Nowak had a 2 hour consultation with Dr Walsh.
On 7 August 2021, Ms Nowak and her son attended an appointment with Dr Walsh. At the end of the session, Ms Nowak says that Dr Walsh told her that she is fully booked and can offer appointments only on a cancellation basis. According to Ms Nowak’s witness statement:
I expressed [my son] needs face to face appointments on the consultation and prior, and that cancellation basis contradicts ‘ongoing’ therapy as we discussed. I felt that it is unreasonable and inappropriate for a child with [his] disability and anxiety to expect him to adjust to her cancellation schedule and fill in a gap in her work schedule. [My son] does 6-9 weekly hours of additional therapy and informal supports in addition to full time school and we waited for a long time.[25]
[25] Witness statement of Eve Nowak dated 8 December 2022,Nowak, para 13
Between 12 August and 14 October 2021, the ACT went into lockdown.
Ms Nowak did not hear from Dr Walsh again until 27 December 2021, when Dr Walsh sent an email to Ms Nowak:
I am just going through all my files and thought I should write and see if you will be wanting to continue with therapy next year. I was not at my practice for most of the time since August, when we went into lockdown and this made it difficult to see/work with children as online [word obscured] very successful with most children. I did not return this year or face to face – and was only doing Telehealth. Still I was inundated and always overflowing with (Mostly adult) appointments. It really was an extraordinary year – with so many people unable to obtain appointments and needs being unmet.
I hope you and [your son] are going well but please let me know if you want to resume sessions next year so I can plan ahead. At this stage I am only seeing double vaccinated people and that rules out some people from face to face sessions.
I am on one month’s leave from tomorrow until February 7, when I resume. I am hoping it will be face-to-face next year.[26]
[26] Witness statement of Eve Nowak dated 8 December 2022, annexure A
Ms Nowak did not respond to the email and had no further contact with Dr Walsh.
On 24 March 2022, she lodged a complaint with the HRC claiming that her son had been discriminated against and prevented from accessing services with another provider by Dr Nowak’s conduct. The complaint is premised on Ms Nowak’s belief that Dr Walsh mislead her that she was taking on new patients. She claims Dr Walsh took advantage of their need by going ahead with the initial consultations in August, when she knew she was not taking on new patients and that the money they paid for the consultations was wasted. She claims that her son had a legal right not to disclose his vaccination status and to access health services regardless of his vaccination status. She claims that if Dr Walsh had been “honest” with them, they could have engaged with another health professional but now must wait another year for an appointment.[27]
Dr Walsh’s response
[27] Complaint lodged online with the HRC on 24 March 2022
On 26 August 2022, Dr Walsh wrote to the HRC responding to the complaint. Notwithstanding Ms Nowak has included the response in her evidence, I have not relied on it in making an assessment whether Ms Nowak’s evidence reaches the minimum evidentiary threshold for a rebuttable presumption to arise that discrimination has occurred, with one exception to which I refer later.
It is nevertheless useful to round out the picture by referring to parts of Dr Walsh’s evidence which would be relevant if it became necessary to consider, at a contested hearing on the merits, whether any ‘condition or requirement’ she may be found to have imposed, or proposed to impose, was reasonable in the circumstances.
Dr Walsh wrote:
During 2020 and 2021, my practice was heavily impacted by COVID and lockdowns which impacted my patient consultations and appointments.
After being away from the office since March 2020 due to COVID, I returned to the office late in April 2021.
During March 2021 when Ms [Nowak] first contacted me, I was taking some new patients as I was hopeful I would still be able to provide ongoing services; hence, the two appointments were scheduled in August 2021. This was a reasonable assumption in ‘normal times’, so on the basis of experience from pre-COVID times, I assumed I was able to start and continue face-to-face office sessions going forward.
Between the months of April to August 2021, there was an extraordinary and unprecedented demand for patients (new and existing) and I was fully booked for the year by the time of Ms [Nowak’s] August appointments. As a result, I was turning many people away every day as I was totally overloaded, and my waiting list was extremely long. I needed to prioritise the many long-term clients re-presenting and current clients unexpectedly requiring more sessions – and thus these people took up appointment times that may otherwise have been available for new clients. I note that this demand was unprecedented in all my years of psychology.
Furthermore, in relation to child patients, from my experience of offering online therapy for children during 2020 and 2021, I felt that Telehealth consultations with children were largely ineffective, due to children not being able to focus sufficiently using this medium. Therefore, Telehealth appointments were not offered to children when I returned to practice at my office in April 2021. However I did offer Telehealth sessions with parents in which we could talk about parenting or helping their children manage their problems. Some parents were pleased to accept this, however, others declined.
In the discussion I had with Ms [Nowak] after [her son’s] session on 7 August 2021, I explained the following:
(i) that I was fully booked for the remainder of the year, but I stressed that this did not mean I would not be able to offer her something as cancellations occurred every week (and at this stage, I had no indication ACT would be entering lockdown soon). I was confident to reassure Ms [Nowak] about offering appointments that year as many of my patients were seeing me on a cancellation basis, and this was working very well. It was thus my intention to offer [her son] at least a couple of [sic] more sessions before the end of the year.
(ii) that I needed to see [her son] face to face, as I had found that Telehealth was not suitable for children his age. Ms [Nowak] informed me that she wanted therapy for [her son], not parenting sessions with herself.
(iii) that if there were any further lockdowns, that would preclude me offering him appointments.
(iv) that having sessions allocated on a cancellation basis was not ideal and that regular times would be better. However, I explained that this was the best I could do at this stage given the blowout in numbers and requests.
(v) that she was welcome to seek help with someone else if she wanted to. I recall Ms [Nowak] saying that she would be happy with any help. I thus thought she was open to being offered appointments on a cancellation basis.
By early August 2021, there were three cases of the Delta variant in the ACT and by mid-August, ACT went into lockdown. This was a week after [her son’s] session. Since that time, I have not returned to my office other than for exceptional circumstances (for example to see a patient for a necessary procedure, such as a specific part of a trauma treatment or hypnosis). I did not consider seeing [her son] such an exceptional circumstance.[28]
[28] Witness statement of Eve Nowak dated 8 December 2022, annexure B, letter from Dr Walsh dated 26 August 2022, paragraph 16
In January 2022, Dr Walsh published on her website a COVID-19 risk management policy she had developed in consultation with her lawyers and the Australian Psychology Society, which left open the door for face-to-face consultations where it was “absolutely necessary”, including where a patient cannot be vaccinated. She also noted that she was aware that children could not be vaccinated before January 2022, so she had no expectation at the time that children would be vaccinated.
I note that it was publicly announced on 10 December 2021, that the Therapeutic Goods Association had approved the Pfizer vaccine for use on children between the ages of 5 and 11 and that vaccinations would commence on 10 January 2022. Prior to that date, children of that age (including Ms Nowak’s son) were not eligible to be vaccinated.
In that context, Dr Walsh wrote:
The issue of [the child’s] vaccination status was not raised, as this had no relevance to my decision-making at this time. Further, as I was not intending to return to my office for the remainder of 2022, and was on leave until February 2022, the vaccination status of my clients was a low priority in my thinking.[29]
Is a rebuttable presumption established that discrimination has occurred?
The first part of the complaint: whether Dr Walsh unlawfully discriminated against Ms Nowak’s son by misleading Ms Nowak that Dr Walsh was taking on new referrals and imposing a ‘condition’ that Ms Nowak and her son must attend initial consultations before Dr Walsh agreed to take him on as a patient
[29] Witness statement of Eve Nowak dated 8 December 2022, annexure B, letter from Dr Walsh dated 26 August 2022, paragraph 17(c)
The foundational premise of Ms Nowak’s complaint is that Dr Walsh misled her in March 2021 into believing that Dr Walsh was taking on new referrals in August 2021 when this was not true. This is a serious attack on Dr Walsh’s professional standing and integrity and, as I will explain, one that is completely lacking in substance.
In her complaint to the HCR, Ms Nowak stated, “We engaged with [Annabel Walsh] in March 2021 as a new patient and she reassured us that she is taking new patients to start in August”.[30] Ms Nowak appears to believe that by accepting an appointment in March 2021 for an initial consultation with her and her son in early August, Dr Walsh agreed then and there to take her son on as a patient. If the belief is genuinely held, I consider that it has no reasonable basis for the following reasons.
[30] Complaint lodged online with the HRC on 24 March 2022
Dr Walsh responded to Ms Nowak’s initial enquiry on 24 March 2021 saying that she was happy to take on new referrals but that she was now taking bookings into August. There is no evidence that the statement was untrue when Dr Walsh made it. Importantly, the statement said nothing (either explicitly or implicitly) about the future. Logically, whether Dr Walsh remained open to taking on new referrals by the time August came around must depend on developments in her practice in the intervening period. When Dr Walsh enquired of Ms Nowak whether an August appointment was “OK with you?” she did not need to spell out that her willingness and capacity to take on new referrals may be different then. It was self-evident and a risk Ms Nowak was prepared to take because she wanted Dr Walsh to take her son’s case.
A further problem with Ms Nowak’s complaint is that she appears to infer that because Dr Walsh told her later, after the appointment with her son on 7 August 2022, that she could offer therapy only on a cancellation basis, her earlier statement on 24 March that she was happy to take on new referrals must have been untrue. This thinking is an example of the logical fallacy known to lawyers as post hoc ergo propter hoc, often abbreviated to the post hoc fallacy. It may be explained thus: since event B follows event A, event B must be caused by event A. In Melway Publishing Pty Ltd v Robert Hicks Pty Ltd,[31] Kirby J referred to the literal translation of the words as “after it, therefore due to it” and described it as “the fallacy of confusing consequence with sequence”.[32] Ms Nowak has given no thought to other logical possibilities that may explain why, in August 2021, Dr Walsh may no longer be willing to take on new patients or may be willing to do so on a cancellation basis only. An obvious possibility is that Dr Walsh’s appointment calendar may have become full in the intervening period, affecting her capacity to take on new patients for long-term or ongoing therapy.
[31] [2001] HCA 13 at [76]
[32] [2001] HCA 13 at [76] and footnote 47. See similarly Chappel v Hart [1998] HCA 55 per Kirby J at [93] point 9 and footnote 139
There is no substance in Ms Nowak’s complaint that Dr Walsh required her to attend an initial 2 hour “parent consultation” before having a 1 hour appointment with Ms Nowak and her son the next day as a ‘condition’ of taking her son on as a patient. The relationship between psychologist and patient, and where the patient is a child, also between the psychologist and the parents, is likely to be critical to clinical outcomes. A psychologist who may work effectively with one person or family unit may not necessarily do so with another. It is self-evident that, as Dr Walsh said in her letter to the HRC, “Therapist and patient fit is one of the most important aspects in therapy succeeding and during consultations”.[33] I doubt that Ms Nowak would disagree if she reflected on the matter.
[33] Witness statement of Eve Nowak dated 8 December 2022, annexure B, letter from Dr Walsh dated 26 August 2022, paragraph 22
Apart from Ms Nowak saying in her email on 24 March 2021 that her son has ASD and ADHD and, in an email sent the next day, adding the cryptic comment that “we have received few extra diagnosis”,[34] Ms Nowak did not give Dr Walsh any clinically relevant information on the basis of which Dr Walsh could assess the severity of the child’s condition, the nature and extent of support able to be provided by his family, and the nature of his ongoing need for therapy before Dr Walsh agreed to offer appointments to Ms Nowak for initial consultations in August 2021. One would think it was obvious that Dr Walsh’s first priority would be to make her own assessment of these matters, regardless of any previous diagnosis. These were matters upon which Dr Walsh necessarily had to form her own clinical judgment. It is surprising that Ms Nowak would think otherwise.
[34] Witness statement of Eve Nowak dated 8 December 2022, annexure A
Further, while Ms Nowak appears to have convinced herself that she made it clear to Dr Walsh from the very beginning that she was seeking long-term ongoing therapy for her son, that is not necessarily the meaning conveyed by her early emails. In the initial email sent on 24 March 2021, Ms Nowak said “I would like to access psychological therapy for my 9 year boy. He is ASD, ADHD”.[35] There was no mention of long-term or ongoing therapy. In response to Dr Walsh’s advice that she was happy to take on new referrals but was taking bookings for August, Ms Nowak replied “If there is a chance of cancellation please let us know. As most of us we are in need of support. For us is more than ever as we have received few extra diagnosis”[36] (emphasis added). The emails suggests that Ms Nowak was seeking therapy for her son and support for “us”, presumably intended as a reference to her and possibly more generally to her family. Whether that was the meaning Ms Nowak intended to convey is not to the point. The emails could be read that way. They left open for future discussion the scope of psychological therapy for the child and support for “us” that Dr Walsh may be asked to provide or may consider to be clinically appropriate. I think it is unsurprising that Dr Walsh should require a lengthy initial consultation with the parents before seeing the child the next day.
[35] Witness statement of Eve Nowak dated 8 December 2022, annexure A
[36] Witness statement of Eve Nowak dated 8 December 2022, annexure A
With that background in mind, I turn now to consider the telephone call Ms Nowak says she made in response to Dr Walsh’s email on 4 August 2021 asking for clarification whether Ms Nowak was seeking an ASD or ADHD assessment. I have reproduced Ms Nowak’s version of the conversation as set out in her witness statement earlier in these reasons. The gist of the conversation appears to be that after Ms Nowak explained her son’s diagnostic history Dr Walsh accepted that a further ASD or ADHD assessment was not necessary but that she needed to meet with Ms Nowak separately and then with her son to get to know them.
Ms Nowak alleges that Dr Walsh “reassured that she can take new referrals”[37] in this conversation. I do not need to decide whether the allegation is true at this stage of the proceedings. Ms Nowak is entitled to the benefit of an assumption that it is true for the purpose of assessing whether there is a rebuttable presumption of unlawful discrimination.
[37] Witness statement of Eve Nowak dated 8 December 2022, paragraph 10
Assuming for present purposes that Ms Nowak is right in saying that Dr Walsh agreed to dispense with a formal ASD or ADHD assessment, I think it is highly improbable that Dr Walsh would not consider it necessary to make her own assessment of the severity of the child’s condition(s), the nature and extent of support able to be provided by his family, Ms Nowak’s expectations as a parent, and the nature of the child’s ongoing therapy needs. Dr Walsh may have said something along the lines that the appointment was needed “so she can get to know us”, as Ms Nowak claims, but the importance of such a consultation in establishing the parameters of any future clinical relationship is obvious in my view. Ms Nowak appears to have overlooked, both then and now, that whatever she may have preferred, ultimately the nature and extent of ongoing psychological therapy that Dr Walsh may consider to be appropriate in the circumstances was a matter for Dr Walsh’s clinical judgment based on her assessment of the parent and the child.
Assuming that Dr Walsh “reassured that she can take new referrals”, as Ms Nowak claims, there is no evidence that Dr Walsh said anything about whether she could offer regular ongoing therapy sessions commencing immediately. Taken at its highest, Dr Walsh must be taken to have indicated no more than that she had the capacity to take on new referrals making it necessary, if Ms Nowak wished to proceed, to proceed with the appointments scheduled for 6 and 7 August. Ms Nowak may have assumed that Dr Walsh was agreeable to providing immediate ongoing therapy for her son, because that is what Ms Nowak wanted, but her own evidence discloses that nothing that Dr Walsh said could amount to a promise or representation to that effect. Further, the context in which Dr Walsh is alleged to have given this ‘reassurance’, according to Ms Nowak’s witness statement, is that “we needed help asap which I expressed to [Annabel] over the phone and via email in (sic) several occasions. Waitlist are for over a year with other practitioners and we have already waited on [Annabel] waitlist for almost half a year”. The only phone call Ms Nowak made to Dr Walsh was on 4 August 2021. The earlier email to which she refers was sent on 25 March 2021, where she wrote “As most of us we are in need of support. For us is more than ever as we have received few extra diagnosis”.[38] In her complaint to the HRC, Ms Nowak said that they were “desperate for a psychologist”.[39] It is reasonable to infer that Ms Nowak communicated her desperate need for help to Dr Walsh by telephone on 4 August and that Dr Walsh expressed a willingness to help if and to the extent that she could.
[38] Witness statement of Eve Nowak dated 8 December 2022, annexure A
[39] Complaint lodged online with the HRC on 24 March 2022
I turn now to consider the requirements of section 53CA of the HRC Act.
Ms Nowak clarified in her submission to the Tribunal that she claims Dr Walsh breached section 20(b) of the Discrimination Act, which prohibits a person who provides services from discriminating against another person in the terms or conditions on which the provider provides those services to the other person. I read the words “provides those services” as sufficiently wide to include an offer to provide those services. Where a complaint is about indirect discrimination, a complainant must show that the terms or conditions have, or are likely to have, the effect of disadvantaging the person and that the effect of disadvantaging them is because of the person’s protected attribute.
The first task is to correctly identify the services that Dr Walsh provides, which I would describe as providing various forms of psychological therapy and counselling for adults and children. Ongoing face-to-face therapy sessions for children was part of the services that Dr Walsh provided at the relevant time.
However, it is incorrect to describe a requirement that Ms Nowak attend an initial appointment with Dr Walsh in the absence of her son and then attend a further appointment with the child present as a “term or condition” on which Dr Walsh “provides those services” to Ms Nowak’s son. It is impossible to envision the provision of services in the form of ongoing therapy for a young, autistic child with severe communication difficulties and possibly also counselling support for the parents, without the psychologist undertaking some form of preliminary psychological assessment of the child’s needs and meeting with the parents. The latter cannot be divorced from the former. It would be equivalent to describing the requirement that a patient needing medication must see a doctor to obtain a prescription, as a ‘term or condition’ of the doctor providing the service of issuing a prescription.
Even if I am wrong, I cannot see how a requirement for Ms Nowak to attend an initial appointment with Dr Walsh on 6 August had, or was likely to have, the effect of disadvantaging her son. It may have been distressing for Ms Nowak to discuss her family’s situation, but that did not disadvantage her son. Similarly, the fact that she paid Dr Walsh’s fees for the consultations has nothing to do with the question whether her son was disadvantaged in a relevant respect. In that context, part of the relief Ms Nowak seeks by these proceedings is an order that Dr Walsh repay the cost of the consultations. However, the fees paid to Dr Walsh do not reflect any loss or damage suffered by the child if unlawful discrimination is established. If Ms Nowak wishes to pursue a claim for compensation for loss or damage that she suffered as a result of (as she claims) being misled, she would have to bring a civil claim for damages against Dr Walsh. Those circumstances have nothing to do with a complaint of alleged unlawful discrimination in the provision of services to her son.
Nor can I see how a requirement that the son attend an appointment with Dr Walsh in the presence of his mother on 7 August 2021 had, or was likely to have, the effect of disadvantaging him.
That brings me back to the allegation that Dr Walsh mislead Ms Nowak that she was still taking on new patients in the telephone conversation on 4 August 2021, a few days before the scheduled appointment. The disadvantage said to flow from this is that Ms Nowak’s son’s access to ongoing therapy was delayed.
First, assuming that Dr Walsh did in fact offer reassurance “that she can take new referrals”, as discussed earlier, the statement was neither incorrect nor misleading. Indeed, the fact that Dr Walsh agreed to take Ms Nowak’s son on as a new patient after the appointment on 7 August, albeit initially on a cancellation basis because she was booked out until the end of the year (but importantly, not afterwards), shows that the statement was true. And while Ms Nowak clearly was not happy with the arrangement, she was initially content to abide by it without putting her son’s name on a waiting list to see another psychologist.
Second, even if it could be said, contrary to my view, that Dr Walsh’s insistence on Ms Nowak and her son attending appointments on 6 and 7 August was a ‘term or condition’ on which Dr Walsh was prepared to provide any form of ongoing therapy to her son, how did that requirement have the effect of disadvantaging her son? The onus to establish this lies on the complainant.
Third, let it be supposed for the sake of argument, that Dr Walsh had said to Ms Nowak on 4 August that she was booked out to the end of the year and that, if she agreed to take Ms Nowak’s son on as a patient, she could do so initially only on a cancellation basis until her appointment schedule freed up. What would Ms Nowak have done? Would she have gone ahead with the appointment given that she was “desperate” for a psychologist? Or would she have refused to proceed and instead put her son’s name on a waiting list to see another psychologist? If she had done so, what difference would it have made to her son’s psychological well-being in the interim? Would her son have been able to access ongoing therapy earlier than would be the case if she stayed with Dr Walsh? Was that outcome preferable to accessing therapy on a cancellation basis until Dr Walsh’s appointment book freed up? None of these issues are addressed by the complainant’s evidence.
It will be apparent from the foregoing discussion that I am not satisfied that the first part of the complaint has any substance. It does not reach the minimum evidentiary threshold necessary to give rise to a presumption that unlawful discrimination has occurred. It would be contrary to the Tribunal’s objectives to require the respondent to incur the time, trouble and expense of responding to a part of the complaint that seeks to impugn Dr Walsh’s professional standing and integrity, but which is patently lacking in merit and has no prospect of succeeding if the matter is allowed to go to a contested final hearing.
The second part of the complaint: whether Dr Walsh unlawfully discriminated against Ms Nowak’s son by offering to accept him as a patient only on the basis that he would be offered appointments on a cancellation basis
Although the solicitor representing Dr Walsh at the hearing submitted to the contrary, I accept that an offer of therapy on a cancellation basis only is capable of being viewed as the ‘terms and conditions’ on which Dr Walsh was prepared to provide face-to-face therapy sessions to Ms Nowak’s son, so as to bring the circumstances within the purview of section 20(b) of the Discrimination Act. I am prepared to make that assumption for the purposes of this analysis.
The issue is whether a rebuttable presumption arises that by doing so Dr Walsh indirectly discriminated against Ms Nowak’s son.
It is necessary to ask two questions. First, how was Ms Nowak’s son disadvantaged by the imposition of this condition? Second, why was he disadvantaged by the condition imposed on him?
Ms Nowak says that the disadvantage lay in the fact that this arrangement was inadequate for her son’s needs. That may be taken as a given. But what was the alternative? Regular face-to-face therapy sessions were not possible because Dr Walsh was booked to the end of the year. While Ms Nowak could have put her son’s name on a waiting list with one or more other psychologist, there is no evidence that he would have obtained access to ongoing therapy earlier than by taking up Dr Walsh’s offer.
In that context it is appropriate to refer to Dr Walsh’s account of what she said to Ms Nowak at the end of the appointment on 7 August. As mentioned earlier, Ms Nowak included Dr Walsh’s response to the HRC complaint as part of her evidence. Dr Walsh’s account is more detailed but is broadly consistent with Ms Nowak’s version. Importantly, Ms Nowak did not dispute Dr Walsh’s more detailed account.
Dr Walsh told Ms Nowak that she was booked out until the end of the year but was able to offer her appointments for the remainder of the year on a cancellation basis and that this was working well with other patients. Dr Walsh told Ms Nowak that this was the best she could do “at this stage”. There is no suggestion in either version of the conversation that this arrangement was expected to continue into the new year. It is not open to speculate that because Dr Walsh was booked to the end of the year, there would not be opportunities in the new year to schedule ongoing therapy sessions on a regular basis, which was the outcome Ms Nowak wanted. This probably explains why Ms Nowak did not take up Dr Walsh’s suggestion that she was welcome to seek help elsewhere. Dr Walsh recalls Ms Nowak saying she would be happy for any help. I imagine that was true.
For these reasons, I am not satisfied that Ms Nowak has established that the imposition of a condition that therapy sessions would be offered on a cancellation basis only had, or was likely to have, an effect of disadvantaging Ms Nowak’s son. That makes it unnecessary to consider whether any such disadvantage was because of the child’s protected attribute. It follows that the second part of the complaint also lacks substance.
The third part of the complaint: whether Dr Walsh unlawfully discriminated against Ms Nowak’s son by imposing a ‘term or condition’ that he must be double vaccinated
Ms Nowak alleges that Dr Walsh informed her by email on 27 December 2021 that “she will only see double vaccinated patients for face-to-face appointments”. She alleges that this discriminated against her son because he was not vaccinated and thus was precluded from having face-to-face therapy sessions.
It is necessary to have regard to what Dr Walsh actually said in her email, which was “… please let me know if you want to resume sessions next year so I can plan ahead. At this stage I am only seeing double vaccinated people and that rules out some people from face-to-face appointments”. Although the statement is in the present tense (“at this stage I am only seeing…”) I accept that it could be understood as referring also to Dr Walsh’s present plans for the future – i.e., next year.
Section 20(b) of the Discrimination Act prohibits discrimination in the terms or conditions on which services are provided to a person – in this case, Ms Nowak’s child. Such discrimination can exist only if the provider “imposes, or proposes to impose,” a term or condition on the provision of services to the person that has, or is likely to have, the effect of disadvantaging the person because of their protected attribute.[40]
[40] Discrimination Act, section 8(3)
Dr Walsh’s invitation for Ms Nowak to let her know whether she wanted to “resume sessions next year” is curious, given that apart from the initial consultations in August, there had been no further sessions in the following months. It may be that, as submitted on behalf of Dr Walsh, the email was a generic message sent to all Dr Walsh’s patients with minor changes to personalise each email. However, if that is the case, Ms Nowak was not to know.
It is necessary to keep in mind, however, that when the email was sent no child under the age of 11 had been vaccinated against COVID, much less been double vaccinated. The approval of the Pfizer vaccine for children aged between 5 and 11 was first announced on 10 December 2021, with vaccinations commencing from 10 January 2022. Even where a parent wanted to have their child vaccinated, it would likely be many months before it could reasonably be expected that the child could be double vaccinated.
Ms Nowak says in her complaint that her son “has his legal right to not to disclose his vaccination status and to access health services regardless of his vaccination status”. I doubt the first part of the statement is true, given that state and territory directives mandated at various times that a range of restrictions should apply to persons who could not provide evidence that they were fully vaccinated against COVID-19.
It is obvious that there was no occasion for Ms Nowak to discuss her son’s vaccination status before Dr Walsh sent the email in December 2021 because he, along with all children of his age, had not been eligible to be vaccinated. That he was unvaccinated at the time must be taken as a given. Accepting for the purposes of this analysis that Dr Walsh’s email reasonably may have triggered a concern in Ms Nowak that her son may be denied the opportunity to have face-to-face appointments with Dr Walsh in the new year (assuming Ms Nowak had decided already that her son should not be vaccinated) the occasion for such a discussion arose upon receipt of Dr Walsh’s email.
Ms Nowak chose not to have that discussion and instead ceased contact with Dr Walsh and embarked on her complaint to the HRC. Why she did not take the obvious step and contact Dr Walsh to clarify the position is unclear. The result, however, is that Dr Walsh never had the opportunity to consider whether what she may be understood to have been planning “at this stage” – namely, to see only double vaccinated patients when she resumed face-to-face appointments in February 2022 – should apply to Ms Nowak’s son, notwithstanding that there may be medical contraindications that meant he could not, or should not, participate in the vaccination programme for children of his age, which was due to start on 10 January 2022. She cannot be said to have ‘imposed’ or ‘proposed to impose’ a condition of double vaccination on providing services to the child in those circumstances.
Ms Nowak correctly accepted that her child’s vaccination status is not a protected attribute. While section 5AA of the Discrimination Act gives an extended meaning of disability, there is no evidence that having ASD and ADHD precludes a child from being vaccinated against COVID-19. It may be, as Ms Nowak claims, that her son has other (presently unidentified) medical conditions that may preclude him from being vaccinated but there is no medical evidence to support her claim. However, if such contraindications do exist, they should have been raised in communications with Dr Walsh following receipt of the email on 27 December 2021.
For these reasons, I find that Ms Nowak has failed to establish that Dr Walsh imposed, or proposed to impose, a condition that Ms Nowak’s son must be double vaccinated before agreeing to have face-to-face sessions with him. This part of the claim also must fail.
Conclusion and orders
Where I have found that all three parts of the complaint are lacking in substance for the reasons given earlier, the appropriate order is to dismiss the application under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.
………………………………..
Senior Member M Orlov
| Date(s) of hearing: | 12 December 2022 |
| Applicant: | In person |
| Solicitor for the Respondent: | Ms L Remedi, Colin Biggers & Paisley Lawyers |
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