PW v Royal Prince Alfred Hospital & ors (EOD)

[2007] NSWADTAP 36

Appeal Panel - Internal

CITATION:	PW v Royal Prince Alfred Hospital & ors (EOD) [2007] NSWADTAP 36
PARTIES:	APPELLANT PW FIRST RESPONDENT Royal Prince Alfred Hospital SECOND RESPONDENT Sydney South West Area Health Service THIRD RESPONDENT State of New South Wales (NSW Department of Health)
FILE NUMBER:	079010
HEARING DATES:	10 May 2007
SUBMISSIONS CLOSED:	10 May 2007
DATE OF DECISION:	16 July 2007
BEFORE:	O'Connor K - DCJ (President); Rees N - Judicial Member; Lowe A - Non Judicial Member
CATCHWORDS:	Anti-Discrimination Act - transgender discrimination - refusal of service - the first element, provision of an actual service - not proven - no contravention - Anti-Discrimination Act - s38M - characterisation of service by Tribunal - matter of fact - no error
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	041031
DATE OF DECISION UNDER APPEAL:	02/05/2007
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Health Services Act 1997
CASES CITED:	PW v Royal Prince Alfred Hospital & ors [2007] NSWADT 31 Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245 Waters v Public Transport Corporation (1991) 173 CLR 349 Waters and IW v City of Perth (1997) 191 CLR 1
REPRESENTATION:	APPELLANT In person FIRST, SECOND AND THIRD RESPONDENTS C Ronalds SC instructed by K Thomas, solicitor, Department of Health
ORDERS:	Appeal dismissed

REASONS FOR DECISION

1 The appellant, PW, was born a male. For the last ten years she has lived as a woman. She has been diagnosed as having gender dysphoria. It is not disputed that she is a transgender person.

2 In October 2002 the Royal Prince Alfred Hospital (RPAH) refused (and continues to refuse) to provide her with sexual reassignment surgery on a public patient basis. The relevant regional health authority, the Sydney South West Area Health Service (SSWAHS) has also refused PW’s request. In January 2003 PW made a complaint to the Anti-Discrimination Board (the ADB) against RPAH, the SSWAHS and the State of New South Wales under the Anti-Discrimination Act 1977 (the Act) alleging that the refusal contravened s 38M of the Act. After investigation, the ADB decided that the complaint was unlikely to be resolved by conciliation. In accordance with the wishes of PW, in February 2004 the President referred the complaint to the Tribunal.

3 Section 38 M provides relevantly:

‘ 38M Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) … services to discriminate against another person on transgender grounds:

(a) by refusing to provide the person with those … services, or

(b) in the terms on which the other person is provided with those … services.’

4 The three respondents deny that their refusal contravened this provision. They accept that sexual reassignment surgery could be provided by a public hospital to public patients. Their position throughout the proceedings has simply been that sexual reassignment surgery is not among the services offered by public hospitals in New South Wales to public patients. The result is that transgender persons must look to the private system, with its costs, for that surgery.

5 The Tribunal upheld the respondents’ defence and dismissed the complaint: PW v Royal Prince Alfred Hospital & ors [2007] NSWADT 31. PW now appeals.

6 An appeal may be made in relation to a ‘question of law’, and, with the leave of the Appeal Panel, may extend to the merits: Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113. It is not necessary that an error of law be demonstrated before consideration can be given to extending the appeal to the merits: Lloyd v Veterinary Surgeons Investigating Committee (2005) 64 NSWLR 245. The Tribunal’s notice of appeal is divided into a section which asks the appellant to identify questions of law, and another section for use if the appellant seeks leave to extend to the merits to give reasons in that regard. PW set out two points as questions of law and applied for leave to extend the appeal to the merits, giving further reasons.

7 The Tribunal held, first, that s 38M(a) is only concerned with refusal to provide actual services. The case-law supporting this conclusion is set out in the Tribunal’s reasons and will not be repeated here. In addition to the authorities relied on by the Tribunal, see also Waters v Public Transport Corporation (1991) 173 CLR 349 at 375 per Brennan J:

‘Because of the correlation between the terms on which a service is performed and the performance of the service, the existence of discrimination can be ascertained only by reference to the terms on which an actual service is performed by the putative discriminator. The service relevant to an alleged act of discrimination is the service which the putative discriminator performs , not a service which the putative discriminator has been accustomed to perform, nor a service of a higher standard which the putative discriminator could perform but is not performing.’ (emphasis added)
8 On appeal PW did not challenge the Tribunal’s conclusion that an actual service must be identified.

9 The next step in the Tribunal’s reasoning involved the characterisation of the service or services placed in issue by the complaint. The Tribunal characterised it as ‘SRS [sexual reassignment service] as a non-chargeable hospital service’ (at [21]). It specifically rejected PW’s alternative characterisation – which it described as ‘a combination of discrete surgical procedures that are performed in other contexts on other patients’ (at [21]). It is convenient to set out the whole of para [21] at this point:

‘21 We must define the service that PW has been refused ‘with precision’ so that the relevant issues can be determined. We find that the service PW requested and that was refused was SRS as a non-chargeable hospital service. It is not accurate to characterise the service as a combination of discrete surgical procedures that are performed in other contexts on other patients. While many of those procedures have elements in common with SRS, SRS is a unique combination of procedures requiring input from psychiatrists, endocrinologists, plastic surgeons and, in some cases, colorectal surgeons. The provision of SRS requires considerable planning and expertise. It is not just a matter of combining and then providing elements of services that are already provided as non-chargeable hospital services in other contexts.’
10 As the service requested (as found by the Tribunal) was not one actually provided by the respondents, it followed that there had not been any refusal of any actual service. Accordingly s 38M was not applicable to the circumstances.

The Appeal

11 PW’s first and main point contains a reiteration of the argument summarised and rejected by the Tribunal at para [21] of its reasons, i.e. that the relevant ‘service’ comprised the various procedures that make up sexual reassignment surgery. She referred again to the following items in the Medicare Benefits Schedule: item 37405 – complete or radical amputation of the penis; item 30644 – exploration of spermatic cord; item 37342 – urethroplasty; item 35565 – vaginal reconstruction; and item 45563 – neurovascular island flap. The respondents accepted that, in various circumstances (say, for example, cancer of the penis; ambiguous genitals), one or more of these procedures might be performed on public patients.

12 She submitted that the term ‘sexual reassignment surgery’ is the one used by a layperson to describe a collection of procedures. She submitted further that when requesting an operation that requires multiple procedures it is not reasonable to expect the ordinary person to request each procedure by item number and a collective term would be used. Among her other submissions was that the Tribunal has ‘no jurisdiction to allocate a collective name to procedures that are clearly and precisely defined by statute’.

13 She said that as a person entitled to receive health services under Medicare she was entitled to receive any of the Medicare listed services unless the health provider came up with a ‘plausible reason’ for refusal.

14 As noted earlier, the respondents have acknowledged throughout the proceedings that a decision could be made to provide sexual reassignment surgery in the public hospital system. The respondents led evidence before the Tribunal as to why such a step was not practical. For example RPAH’s CEO, Mr Gill, told the Tribunal that its unavailability was, primarily, a result of resource allocation decisions. Ms Ronalds SC, counsel for the respondents, also noted that it was surgery of a kind that needed to be performed on a regular basis for skills to be maintained. She said that only one surgeon undertook this surgery in New South Wales, Associate Professor Haertsch. He also gave evidence to the Tribunal.

15 In her original letter of complaint to the Board, PW had in fact complained of being denied ‘sexual reassignment surgery’. She was legally represented at first instance. Cognisant by then, it would seem, of the need to identify an ‘actual service’ being performed by public hospitals in New South Wales, her submission to the Tribunal was that the services were constituted by the specific procedures mentioned above. As noted earlier, the respondents agreed that the individual procedures are available in public hospitals.

16 The Tribunal, like the respondents, accepted that many of the itemised procedures to which PW had referred had elements in common with sexual reassignment surgery. As the Tribunal noted at para [21]: ‘SRS is a unique combination of procedures requiring input from psychiatrists, endocrinologists, plastic surgeons and, in some cases, colorectal surgeons. The provision of SRS requires considerable planning and expertise. It is not just a matter of combining and then providing elements of services that are already provided as non-chargeable hospital services in other contexts.’

17 ‘Service’ or ‘services’ are words of an ordinary kind. They are the subject of a broad inclusive definition under the Act: s 4. The judgments in the leading cases, Waters and IW v City of Perth (1997) 191 CLR 1 are consistent in holding that the characterisation of the service is a question of fact for the primary tribunal. An extreme mischaracterisation may give rise to legal error. The Tribunal was conscious of the latter point, emphasised in Waters by McHugh J at 404-5:

‘Before there can be a finding of discrimination by a person in relation to the provision of goods or services … the relevant goods or services must be identified with sufficient precision to relate them to the facts of the case and the issues that arise for determination. If a person is alleged to have refused to perform services, for example, the services in question must be identified in sufficiently precise terms to enable the Board to determine whether or not there has been a refusal to perform those services. What is sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as ‘the public transport system’. If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, ‘transportation of members of the public by trams’ might identify the service with sufficient precision to enable the relevant issues to be resolved.’
18 McHugh J went on to note the characterisation of the service was of particular importance in the case because the contention was that the terms and conditions on which the service was supplied unlawfully discriminated against the complainants. It was important to the identification of the terms and conditions that the service itself be identified ‘with precision’. Cited with approval IW v City of Perth per Brennan CJ and McHugh J at 17.

19 Further, a tribunal vested with the power to decide matters according to the substantial merits of the case and not bound by the rules of evidence (as this Tribunal is – ADT Act, s 73) may have regard to evidence that might not be admissible under the rules binding courts, provided it does so fairly: see generally Waters per Dawson and Toohey JJ at 390.

20 In our view, the finding made by the Tribunal was clearly open to it on the evidence. This point of appeal is rejected.

21 Statutory Duty. PW’s second point of appeal is that the Tribunal erred in its conclusion that the respondents do not have a statutory obligation to provide the requested procedures. PW refers to ss 9 and 10(g) and (h) of the Health Services Act 1997, setting down the purposes of area health services such as SSWAHS. They provide:

‘ 9 Primary purposes of area health services

(cf AHS Act s 19)

The primary purposes of an area health service in its area are as follows:

(a) to provide relief to sick and injured persons through the provision of care and treatment,

(b) to promote, protect and maintain the health of the community.

10 Functions of area health services

(cf AHS Act ss 19 and 20)

The functions of an area health service are as follows: …

(g) to investigate and assess health needs in its area,

(h) to plan future development of health services in its area, and, towards that end:

(i) to consult and plan jointly with the Department of Health and such other organisations as it considers appropriate, and

(ii) to support, encourage and facilitate the organisation of community involvement in the planning of those services, and

(iii) to develop strategies to facilitate community involvement in the planning of those services and to report on the implementation of those strategies in annual reports and to the Minister, …’

22 These are general provisions describing the role and responsibilities of area health services. They speak of ‘purposes’ and ‘functions’. They do not include any statements of duty, either of a general kind or in respect of the provision of particular services. We agree with the Tribunal’s conclusions on this point at [23] and following of its reasons.

23 Merits Points. Under the merits heading of the notice of appeal, PW criticises aspects of the Tribunal’s account and understanding of the evidence given by Professor Haertsch. PW criticises the Tribunal’s summary of the preliminary steps and approvals required before sexual reassignment surgery is performed. Whether or not the Tribunal erred on some matters of detail in its description of this evidence, its primary finding remained open. The matters raised are minor ones.

24 Leave. Findings of fact made by a primary tribunal should not lightly be disturbed. It would be manifestly unfair to the respondents to give PW leave to extend the appeal to the merits. The application is refused.

25 Postscript. A systemic decision not to provide a particular service (sexual reassignment surgery in the present case), or to stop performing that service in a particular way (introduction of driver-only trams and removal of conductors as in Waters) may specially impact on a group who possess an attribute that has led to them being the subject of protection under anti-discrimination laws.

26 More particularly, a requested service may be one of a kind that is only relevant to a protected group. This case provides an example of a service of that kind. It may be that consideration should be given to extending anti-discrimination laws to cover situations where a systemic policy has such an effect (with appropriate defences relating to the public interest and reasonableness), rather than have any such assessment forestalled (as has occurred here) because the complainant is unable to demonstrate that the requested service is a present, actual service of the respondent.

Order

Appeal dismissed.