Robinson v Sydney West Area Health Service

[2007] NSWADT 77

CITATION:	Robinson v Sydney West Area Health Service [2007] NSWADT 77
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Richelle Robinson RESPONDENT Sydney West Area Health Service
FILE NUMBER:	031119
HEARING DATES:	28 April 2006
SUBMISSIONS CLOSED:	17 July 2006
DATE OF DECISION:	5 April 2007
BEFORE:	Behrendt L - Judicial Member; Mooney L - Non Judicial Member; Lowe A - Non Judicial Member
CATCHWORDS:	Disability Discrimination - Goods and Services - Indirect discrimination
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Bradley v State of New South Wales (No. 2) [2003] NSWADT 94 Byham v Preston City Council (1991) EOC 92-377 Dee v Commissioner of Police and Anor [2003] NSWADT 217 Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Finance Sector Union v Commonwealth Bank of Australia (1997) EOC 92-889 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 Langley v Niland [1981] 2 NSWLR 104 Omeri v Quality Assurance Service Pty Ltd (2003) NSWADT 188 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Robinson v Wentworth Area Health Service (No 2) [2005] NSWADT 220 Siddiqui v Australian Medical Council (2000) EOC 93-059 Strong v Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176 Tabbouch v Noyeaux [2003] NSWADT 6 Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council EOD [2002] NSWADTAP 26
REPRESENTATION:	APPLICANT In person RESPONDENT E Brus, Barrister
ORDERS:	1. The Tribunal finds the Applicant’s complaint to have been substantiated; 2. The Respondent is to pay the Applicant $5 000 as damages; 3. The Respondent is enjoined from continuing or repeating the imposition of the requirement that to receive free doses of methadone, the applicant must attend the Woodlands Clinic every weekday during the morning. For example the Respondent could, if requested by the Applicant, provide the Applicant with an additional take home dose on any weekday that she attends the clinic for dosing, and with two additional take home doses on any Friday she attends the clinic for dosing, up to a maximum of four take home doses in any seven day period.

1 The applicant, Ms Richelle Robinson, lodged a complaint against the respondent, Wentworth Area Health Service, with the Anti-Discrimination Board on 10 May 2002 alleging indirect discrimination on the ground of disability in the provision of services.

2 Ms Robinson is addicted to methadone and is required to take a daily dose. This dose is administered by the Woodlands Clinic, located in the grounds of the Blue Mountains District ANZAC Memorial Hospital and was run by the Wentworth Area Health Service. At the time of the hearing in April 2006, there had been changes in the boundaries and the clinic fell under the Sydney West Area Health Service.

3 Ms Robinson’s complaint was that on 11 February 2002 the respondent implemented a policy that required her to attend the clinic daily in person to receive her dose. Dosing would be administered between the hours of 7.15am to 10.45 am. The applicant states in her points of claim that prior to the introduction of the new policy she was able to attend the clinic on Mondays, Wednesday and Fridays and was able to receive take-home doses on those days for the remaining days of the week, in accordance with her doctor’s prescription.

4 Ms Robinson claims she has two disabilities. She has Hepatitis C which she states makes her nauseous (particularly in the mornings) and she has chronic back pain related to a spinal condition which she states makes it difficult for her to walk the distance between her home in Wentworth Falls and the bus stop for the bus to Katoomba and the distance between the bus stop in Katoomba and the Woodlands Clinic. Ms Robinson says that, although currently she has a friend who can drive her to the Clinic, in the past (and at the time of her original complaint to the Anti-Discrimination Board) she did not have access to a car and was therefore reliant on public transport. She states that she cannot be certain how much longer the arrangement whereby she is driven to the Clinic can continue. In addition, she states that there are no buses between Wentworth Falls and Katoomba on Sundays.

5 Ms Robinson claims that the combined effects of these disabilities make it impossible for her to attend the Clinic every morning. She claims that the requirement that she attend the Clinic every morning is not reasonable.

6 Ms Robinson also claims that she has asked for home dosage on occasions due to her health but on each occasion that request has been refused and she cannot afford to purchase the doses from a private provider.

7 The President of the Anti-Discrimination Board referred the applicant’s complaint to the Administrative Decisions Tribunal (“the Tribunal”) on 23 September 2003.

Evidence Before the Tribunal

8 Ms Robinson provided medical evidence that she was a methadone addict who suffered from Hepatitis C and from chronic pain related to a spinal injury. This was information that Ms Robinson had also given to the staff member of the Wentworth Area Health Service. The Wentworth Area Health Service did not dispute these conditions.

9 Attached to the Points of Claim and statement by Ms Robinson was a letter dated 5 February 2002 from Western Area Health Service. It informed Ms Robinson that the Woodlands Clinic was to be the service provider for her methadone treatment and stated the conditions of that service provision. Also attached was a bus timetable for the Mountainlink bus service that operates between Wentworth Falls and Katoomba showing that there are no services on Sundays.

10 On 26 February 2004 the Wentworth Area Health Service wrote to Ms Robinson’s legal representative asking for further and particulars, namely, details of the disabilities Ms Robinson was alleging she was discriminated on the basis of, what definition of disability under the Anti-Discrimination Act 1977 (NSW) she was relying on and the basis on which she alleged that she was treated less favourably by the respondent than persons without these alleged disabilities. On 1 March 2004, Ms Robinson’s legal representative withdrew from acting for Ms Robinson and she has been self-represented since then.

11 At a case conference on 2 April 2004 a further direction was given to Ms Robinson that she was required to provide the further and better particulars that the Wentworth Area Health Service had requested.

12 On 11 May 2004 Ms Robinson provided material to the respondent that included a letter from Ms Robinson’s doctor stating that she has a back condition but did not provide details of how this may affect her mobility. This material did not appear to have been lodged with the Tribunal.

13 The Wentworth Area Health Service asserted that those documents did not answer their request and in letters dated 14 May 2004 and 20 May 2004 again requested a reply to their request for further and better particulars.

Application to Dismiss the Complaint Heard on 30 August 2004

14 On 30 August 2004, the Tribunal heard an application made by the Wentworth Area Health Service under the former s.111 of the Anti-Discrimination Act 1977 (NSW) to dismiss Ms Robinson’s claim on the basis that Ms Robinson had not filed sufficient material to substantiate her complaint and the failure to provide further and better particulars had placed them in a position where it was difficult to respond to the allegations and make out their defence.

15 The former section 111(1) of the Anti-Discrimination Act 1977 stated:

Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.

16 The Wentworth Area Health Service, in making that application under s.111, claimed that Ms Robinson has failed to give particulars as to the basis on which she claims a breach of s.49B(1)(a) and s.49B(1)(b) and that, instead, she was asserting that she has a disability. They argued that if that is the case, the Tribunal has no jurisdiction and the complaint should be dismissed.

17 Further, the Wentworth Area Health Service claimed that Ms Robinson’s complaint was “misconceived” or “lacking in substance” because there was no evidence that there was a breach of the legislation. They argued that, taken at its highest, Ms Robinson had not made a case for a breach based on the material she had presented to support her case.

18 Without the further and better particulars that they had requested, the Western Area Health Service asserted that it was in the position of having to speculate about the case they were expected to respond to and this placed them in an unfair and difficult position.

19 In its decision of 30 November, 2004, the Tribunal found that, although there were evidentiary holes in Ms Robinson’s case, the principle of natural justice dictated that she should be allowed further opportunity to provide more detailed evidence; as per s.73, Administrative Decisions Tribunal Act 1997 (NSW) and Omeri v Quality Assurance Service Pty Ltd (2003) NSWADT 188. The Tribunal noted that Ms Robinson was self-represented and was appearing against experienced legal counsel so that, while not making her case for her, the Tribunal must ensure that Ms Robinson understood the proceedings and had an adequate opportunity to put her case forward.

20 In paragraph 39 of its judgement, the Tribunal gave Ms Robinson the following direction:

It is the view of the Tribunal that Ms Robinson should be given an opportunity to provide further evidence of her claims as it would be manifestly unjust to deprive her of the opportunity to provide the better and further particulars that would make out her case. She will need to provide evidence of her medical conditions and evidence of her inability to meet the requirements set by the Wentworth Area Health Services for the dispensation of methadone. She also needs to make out her claim that the requirement to attend in person to receive methadone is one that disadvantages those who have her disability and does not disadvantage those who do not have it. She will also need to show that the requirement that she attend in person is unreasonable. Ms Robinson should also submit material to the Tribunal that quantifies her damages. To this end, Ms Robinson should produce:
(a) medical evidence of the extent of her disabilities and their effect on her. In particular, she needs to show that her Hepatitis C and chronic back pain make it impossible for her to attend the clinic daily.

(b) If possible, this evidence should also include material that informs the Tribunal as to why the alternative drugs are not suitable to her situation.

(c) evidence of her financial position to show that she cannot afford to pay for pharmacy doses.

(d) evidence to support her claim that she is stable and suitable for take-home doses.

21 It is also clear from Ms Robinson that she was deeply affected by not being able to attend her mother’s funeral because she was unable to get take-home doses. She gave evidence that her failure to attend the funeral led to a rift with her family that has not healed.

22 Throughout her evidence Ms Robinson complained that she felt that when she attended the Woodland’s Clinic she was often subjected to ridicule by certain staff members. For example, Ms Robinson complained that on one occasion a staff member of the clinic who parodied the way she walked and referred to her as Charlie Chaplin mocked her. These incidents added to her distress at being at the clinic and although they did not relate to her claim of discrimination, it added to an impression that the clinic was not sympathetic to her disabilities.

23 Ms Robinson’s evidence was that she felt very strongly that methadone addicts are discriminated against and that she finds the policies, procedures and the attitude of staff members at the Woodlands Clinic demeaning and degrading. She described this as an infringement of her human rights and describes her treatment at the Woodlands Clinic as amounting to “a loss of liberty”. She expressed her frustration about the lack of avenues for complaint about her concerns with the way in which she is treated when she attends the clinic. As the Wentworth Area Health Service stated in its final submissions to the Tribunal, Ms Robinson seemed to be focused on the fact that, after 16 years of complying with the rules and regulations set out by the service, she is still required to attend in person.

Ms Robinson’s Subsequent Evidence

24 Ms Robinson submitted further information to the Tribunal following the decision in the s.111 application. This included:

(a) a letter from Dr. John Harrison dated November 2004 which detailed the pain that Ms Robinson complained of in relation to her back condition;

(b) a letter from Ms. Robinson to the Tribunal detailing the effects of her Hepatitis C, endometriosis and spinal conditions, describing the difficulties she encounters when taking public transport to the clinic and the impact that attending the clinic daily has had on her life. In particular, Ms Robinson noted her inability to attend her mother’s funeral and to attend educational courses. She also noted the way that complying with the rules of the clinic makes her feel a “loss of liberty” and the way in which she finds the procedures and policies of the clinic humiliating and demeaning;

(c) Ms Robinson’s clinic notes from Blue Mountains District ANZAC Memorial Hospital;

(d) a game printed in the magazine User’s News Issue No. 41, Spring 2004 which details the difficulties faced by methadone addicts in attending clinics for doses;

(e) a letter from Ms Robinson to the Tribunal detailing the problems she has when at the clinic including encountering patients who are violent or engage in criminal activity and enduring sarcastic remarks about her medical condition from staff. The letter also describes the way in which Ms Robinson feels the procedures of the clinic infringe on her human rights and that she feels she has no avenue for redress in relation to her complaints about the behaviour of clinic staff towards her. Ms Robinson also details her budget showing that she has only $26 left after paying her expenses. She also lists the remedies she seeks from the Tribunal, namely, a better co-ordinated health care system, the introduction of a card system for methadone addicts to replace the current system and the prevention of new clinic staff making decisions that will “change people’s lives at the drop of a hat”.

(f) a letter from Dr. Simon Whitehead dated 3 March 2005 stating that Ms Robinson has a chronic painful condition affecting her spine, namely, Cervical Spondylosis and Lumber Spondylosis, and was unlikely to gain significant improvement and this should be regarded as “an essentially lifelong condition.”

25 After the receipt of Ms Robinson’s additional material, the Wentworth Area Health Service filed a further application under the former s.111 seeking to have the complaint dismissed on the grounds that it was misconceived and/or lacking is substance because there was no factual basis to the allegations.

26 The Wentworth Area Health Service also claimed that the remedies that the applicant sought were beyond the power of the Tribunal to grant and that it would be contrary to the public interest to allow the complaint to proceed.

27 At the hearing on 3 June 2004, the Tribunal gave Ms Robinson the opportunity to present her case in its entirety before the application under s.111 was considered.

28 In addition to the material filed with the Tribunal, Ms Robinson gave sworn evidence as to the way in which her Hepatitis C and spinal conditions made it difficult for her to attend the clinic and that her doctor had told her that her condition would not improve.

29 Ms Robinson also said that her medical conditions made it hard for her to travel to the clinic though admitted that she now has a friend who drives her to the clinic. She also informed the Tribunal that prior to arranging for her friend to take her to the clinic she had trouble walking the mile from the bus stop to the clinic. She did say that the pharmacy where she can occasionally pick up a take-home dose was also in Katoomba so she would have to travel as far to get them though the difference is that she can pick up the take-home dose any time during the day whereas the clinic is only open between 7.15-10.45 am.

30 Ms Robinson gave evidence that she did not want to take alternatives to methadone as she did not want to feel like a guinea pig, had had bad experiences in the past in taking experimental medication and did not feel the same relief from other medication from the pain in her back as she did from methadone. She also gave evidence that a take-home script costs $8 each and this is clearly beyond her financial means.

31 The respondent’s assertion that Ms Robinson’s complaint was misconceived and lacking in substance because they have no factual basis required the Tribunal to take the evidence that Ms Robinson has presented at its highest. In dismissing the application for dismissal of the proceedings under the former s.111, the Tribunal made the following observations at paras 31-32, 41-42 and 44:

It is clear in Ms. Robinson’s Points of Claim that hers is a claim of indirect discrimination on the basis of disability. While she is clearly concerned and often distracted by her belief that she is discriminated against because she is a methadone addict, her Points of Claim make clear that she claims a disability for the purposes of this matter on the basis of having Hepatitis C and chronic back pain. She has two letters from doctors that attest to her chronic spinal condition and she gave oral evidence and wrote to the Tribunal about the way in which the pain in her back and the nausea from her Hepatitis C make it hard to attend at the clinic daily and in person between the hours of 7.15 to 10.45 am. In this way, she has given evidence to show that she has problems with her mobility as a result of her disability that make it difficult for her to attend. While Ms Robinson gave evidence that she can now attend because she has a friend who can drive her, when she lodged her complaint she had no such arrangement and was reliant upon public transport or hitch hiking.

Ms Robinson did not provide any expert witnesses to attest to her disability at this stage but relied on her own accounts and some letters from the Wentworth Area Health Service. It can be asserted that her evidence of her medical condition is not the best evidence that could be presented to the Tribunal at a hearing. However, it is open to the Tribunal to take the evidence she has already submitted in determining whether she has made out a prima facie case for the purposes of defeating a s.111 application. Indeed, the Tribunal believes that Ms Robinson has shown evidence that she suffers from the medical conditions she claims and, for the purposes of this application, has shown a disability even though the Tribunal would expect to see further evidence of this at a full hearing.

…

In her evidence to the Tribunal, Ms Robinson, expressed the view that the policy requiring attendance in person between set hours was inconvenient, rigid and inflexible. She explained to the Tribunal that she was able to get take-home doses before and then the policy was changed with no explanation. Even when the policy caused her great personal hardship, like the inability to attend her mother’s funeral, no explanation was given as to why the policy was implemented in the way it was. This change in policy without explanation is the basis upon which Ms Robinson asserts that the policy is not reasonable and the Tribunal finds that, for the purposes of this hearing, she has made out a prima facie case.

The Tribunal, in finding that the s.111 application should be dismissed, also gave consideration to the fact that Ms Robinson was self-represented and therefore not as aware of the legal elements and intricacies of the case she has to meet as if she had the benefit of legal counsel. For this reason, the Tribunal needs to be flexible to ensure that Ms Robinson has an opportunity to make her case. Even though this flexibility may place some additional burden on the Wentworth Area Health Service, in this case it has been afforded to Ms Robinson to ensure that she is afforded natural justice.

…

While Ms Robinson failed to provide the best evidence of her medical condition, she did convince the Tribunal that she suffers from a disability and that she experienced difficulty in reaching the Woodland’s Clinic during the hours in which it administered methadone dosages. She also made a case to show that the policy requiring daily attendance in person between set hours at the Woodland’s Clinic was unreasonable. Accordingly, the Tribunal finds that, taking Ms Robinson’s evidence at its highest, there is enough material in her complaint to satisfy the Tribunal that there is a case to answer. This is enough for her to answer the respondent’s application to dismiss under s.111. Strong v Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176.

32 After the Tribunal had dismissed the further application under s.111, it reconvened to allow the respondent to cross-examine Ms Robinson (the only witness called to support her case) and to hear the Wentworth Area Health Service’s evidence.

33 In support of the Wentworth Area Health Service’s case, Mr Hedge, Network Director, Drug and Alcohol, for the Sydney West Area Health Service of the Nepean Hospital gave evidence. In his affidavit signed 7 April 2006, he noted that the policy adopted in relation to methadone doses at the Woodlands Clinic that Ms Robinson attended was the same as the other clinic under the administration of the Wentworth Area Health Service. This practice was, according to Mr Hedge, consistent with the Western Area Health Service’s “Model of Methadone Treatment” which was endorsed in 1997 and consistent with the “Model of Pharmacological Service Delivery” which had been outlined and endorsed in the NSW Health Department’s strategic directions document, “NSW Drug Treatment Services Plan 2000-2005”.

34 Mr Hedge’s evidence was that the policy “requiring patients to present daily to receive doses of methadone under supervision was established to provide a service for new patients to be stabilised over a period of no less than 3 and no greater than 12 months, and for chronically unstable patients to be supervised. This policy anticipates that public clinics within the WAHS will then facilitate the transfer of stabilised patients, such as the applicant, to general practitioners and community pharmacists for management. The policy of restricting take-away doses by Clinics is designed to provide a system of fairness in which stable patients can be treated in the community sector thereby allowing access to the service for patients in acute needs.”

35 Further, Mr Hedge explained that the Pharmacotherapies Home Deliveries Policy is designed to accommodate patients who are unable to travel to the clinic when they have been assessed as having an acute exacerbation of chronic illness or as being incapacitated. This includes “post-natal, post-operative, a single parent of ill children, has an acute exacerbation of chronic illness (eg HIV), acute complaint requiring medical attention or incapacitation (eg injury). Capacity to provide home-dosing services is restricted by resource availability and is not available on weekends or public holidays.”

36 Mr Hedge said that he had, on one occasion, met with Ms Robinson to discuss her requests for takeaway doses but determined that she did not fall within the criteria set out in the policy that would make her eligible for them. He gave further evidence that Ms Robinson was given takeaway doses from the pharmacy at Katoomba on 15 occasions in the period between July 2003 and June 2004. Since January 2005, the applicant has been dosed at the clinic from Monday to Friday and given takeaway doses on weekends and public holidays with takeaway doses being picked up from the pharmacy at Katoomba.

37 The records of the Wentworth Area Health Service showed that Ms Robinson was given home doses on three occasions – 27 December 2002, 6 January 2003, 3 March 2003 – and had occasionally made arrangements for doses to be given outside of the clinic’s normal operating hours.

38 In relation to the failure to provide takeaway doses to Ms Robinson to enable her to see her dying mother, Mr Hedge said that, while a note was made on her file that she had wanted to see him on 1 May 2002 that she did not attend the appointment. There were no notes on the file that relate to a request for a transfer to another clinic to be nearer her mother and if such a request had been made, Mr Hedge believed it would have been complied with. On 10 December 2004 there was a note stating that “Kurt’s Godmother is dying” and a nurse gave takeaway doses to Ms Robinson.

39 Mr Hedge gave further evidence during his cross-examination in response to a member of the Tribunal:

Q. Does anyone at all at any of the clinics under WAHS get home takeaways?

…

A. Look there may be rare cases in which takeaways are granted but - -

Q. In what sorts of circumstances?

A. Look generally really acute circumstances. To be honest I haven’t done any review of our performance in the last four years that would tell me that we have or that we haven’t. There may be circumstances in which people are required urgently to attend something important, but without really doing a review of the – of what we’ve actually done I don’t think I can tell you that. In general we try, if people need takeaway doses, and they need them on a regular basis, then we try to facilitate a process which means they can do that but through a community pharmacy.

…

Q. Why is it that the health service can’t ensure that home doses and takeaways are provided for free?

A. Essentially because if we don’t have a process in which people are encouraged to move into the community sector then we’re left with in public Methadone treatment with a system that creates enormous problems, and the enormous problem we have in the public Methadone system is that patients have been in the Methadone treatment for a very long period of time, they’re very stable, on the whole, and there are heroin users who need access to Methadone treatment who simply cannot get across to public Methadone treatment.

…

Q. Why couldn’t you provide them for free from the clinic, just take them home for free, what’s the problem with that?

A. Well, there’s no real problem except that the policy is designed to ensure that the clinic provides treatment to those in the most acute need, and without providing a process in which people can be encouraged to seek community sector treatment people who are novel heroin users won’t get access to Methadone treatment because our public clinics will be full of people who are stable.

Q. But at the moment you’re providing treatment to Richelle five days a week in a public clinic anyway?

A. Yes we are.

Q. So why couldn’t you ensure that they will provide that she was getting free takeaways at the local pharmacy, why they can’t be provided in a public way, like for free, at a local pharmacy?

A. Well there’s no ostensible rule why a public clinic cannot provide takeaway doses, except that this organisation has made a policy decision that says that no takeaway doses are provided in the public sector. There are many other public clinics that provide Methadone takeaway doses free of charge, or with a small fee.

…

Q. Can I just confirm with you that you’re saying that no other clinic within the Western Sydney area provides free takeaway doses?

A. No, no, I haven’t said that at all.

Q. Can you explain to me what you know?

A. … There are, as I said, five public clinics in a new area health service. There are very different takeaway dose policies in place across those area health services – across the area health service in those clinics. The two clinics in what was formally known as Western Sydney Area Health Service provide takeaway doses of up to four per patient per week.

…

Q. So there is no policy reason then for why you can’t provide free takeaway doses?

A. Well there is in covering the two clinics in what was formally the Wentworth Area Health Service.

Q. But no general health policy reason?

A. No. As I said there is no specific policy in New South Wales that indicates a clinic is unable to provide free takeaway doses.

40 Mr Hedge gave further evidence that the cost that attaches to the methadone doses at pharmacies is not for the methadone (which is subsidised by the federal government) but is an administrative fee that cannot be claimed back under the Pharmaceutical Benefits Scheme. The clinic would not be able to pick up the cost of the administrative fee, according to Mr Hedge, due to the increased financial commitment that such a policy would create.

41 It was Mr Hedge’s evidence that Ms Robinson expresses reluctance to become involved in case management through the Woodlands Clinic, that she continues to receive access to free methadone dosing services at the Woodlands Clinic and has attempted to accommodate and will continue to attempt to accommodate Ms Robinson’s needs according to their policies in relation to dosing and takeaway dosing and relaxing the Clinic’s hours where possible.

42 In written submissions to the Tribunal, the Wentworth Area Health Service asserted that the main reason for Ms Robinson’s complaint was that she felt that after 16 years of complying with the rules and regulations, she should be entitled to take-home doses. Further, they allege that Ms Robinson’s complaints relate not so much to a breach of the Act but to her belief that she suffers discrimination because she is a methadone addict and has used the proceedings “to obtain a public forum for ventilation of her various grievances about the policies”. As such, they argue, the claim is a misconceived claim of discrimination on the grounds of disability.

The Claim of Discrimination on the Ground of Disability

43 As this is a claim of indirect discrimination, Ms Robinson must also show more than just that her disability makes it difficult for her to attend the clinic. The test she must meet is set out in sections 49B and 49M of the Anti-Discrimination Act 1977 (NSW).

44 Section 49B articulates what constitutes discrimination on the ground of disability. It states:

(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of disability if, on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
…

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

45 Section 49M prohibits discrimination on the basis of disability in the provision of goods and services. It states:

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
…

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person’s disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

46 There was no dispute that Ms Robinson has a disability within the meaning of the Anti-Discrimination Act. She suffers from both Hepatitis C and chronic back pain. Nor was there any dispute that the respondent is providing Ms Robinson with a service and that the respondent’s policies affect the terms on which she is provided with that service. In order to establish that she has been discriminated against “indirectly”, Ms Robinson must prove that:

a. the respondent has imposed a requirement or condition on her;

b. she cannot comply with that requirement or condition,

c. a substantially higher proportion of persons who do not have her disability comply or are able to comply; and

d. the requirement or condition is not reasonable.

47 The requirement is that to receive her methadone doses, Ms Robinson must either attend the Woodlands Clinic every weekday during the morning, or attend a pharmacy and pay for her dose at $8 per dose.

Ms Robinson’s ability to comply with the requirement

48 The Wentworth Area Health Service asserted that Ms Robinson failed to show that her disabilities prevent her from attending the Woodlands Clinic on a daily basis.

49 Ms Robinson does not have to show that she cannot comply with the requirement at all. She must show that she cannot practically comply with it or that compliance is more difficult for her than it is for others. Bradley v State of New South Wales (No. 2) [2003] NSWADT 94, Byham v Preston City Council (1991) EOC ¶92-377, Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council EOD [2002] NSWADTAP 26.

50 Ms Robinson had medical certificates to support her claims about her disabilities but these said little specifically that could shed light on how they might affect her ability to regularly attend at the clinic and therefore make it difficult for her to comply with the policy requirement that attendance be in the morning.

51 However, Ms Robinson gave credible evidence of how her spinal disability and associated pain affected her mobility, and of how her Hepatitis C frequently made her nauseous in the mornings. The Tribunal determined that the combined effect of these disabilities on Ms Robinson made it extremely difficult for her to attend the Clinic each weekday between the hours of 7.15am to 10.45am.

52 Attending the pharmacy in Katoomba to receive her doses on either a daily or a regular basis was a little easier for her, as she had all day to attend, as opposed to having to attend only in the morning. It would still be a significant problem for her to do so given the nature of her mobility difficulty. In addition, the Tribunal accepted the evidence given by Ms Robinson that given the level of her welfare benefits and the level of her other necessary expenditure she is unable to afford to purchase regular doses at the pharmacy.

53 We find that Ms Robinson is not able to comply with the requirement. While her disability does not prevent her from attending the clinic every day, compliance causes her enormous difficulty.

Can a substantially higher proportion of persons who do not have her disability comply?

54 In establishing this aspect of her case, Ms Robinson must give careful consideration to the group or pool that she seeks to compare herself with. In Finance Sector Union v Commonwealth Bank of Australia (1997) EOC ¶92-889 Justice Sackville identified several principles in defining these groups including that the selection of the base group should be calculated to reveal the significance of the characteristic (in this case, the disability) to compliance. This was described by Justice Heerey in Siddiqui v Australian Medical Council (2000) EOC ¶93-059 as follows:

The comparison is not strictly speaking between two groups in the sense of separate independent entities but rather between a subgroup (the complainant’s group) within a larger group (all who face the same term, condition or requirement) … It is clear that the base group is a group which is affected by the term, condition or requirement in question … the particular section of the public upon whose lives the impact of the relevant requirement or condition has to be measured.

55 Ms Robinson has to compare the capacity of people with her disability to comply with the requirement with the capacity of methadone addicts without her disability to comply.

56 Wentworth Area Health Service assert that Ms Robinson gave no evidence about what the appropriate comparator might be and no evidence to support the assertion that a substantially higher proportion of methadone addicts without Ms Robinson’s disabilities could comply with the conditions that Ms Robinson is unable to meet.

57 While Ms Robinson did focus her evidence on the discrimination she felt that she suffered as a methadone addict rather than the technical legal elements of her case, the legal test for indirect discrimination in relation to a disability is a complicated one and it is not always easy for a layperson with little formal education like Ms Robinson to grasp the intricacies of the test.

58 In her submissions to the Tribunal, Ms Robinson did not identify an appropriate comparator for the purposes of the test she was required to meet and she did not produce any evidence to the Tribunal about how the proportion of people who do not suffer from the disabilities that she has can comply with the requirement. The failure to identify such evidence is symptomatic of the fact that she is self-represented and therefore not as able to place her evidence before the Tribunal in a manner that would be expected from an experienced legal practitioner.

59 In Robinson v Wentworth Area Health Service (No 2) [2005] NSWADT 220 the Tribunal identified the appropriate comparative group in Ms Robinson’s case as being methadone addicts who have to attend the clinic who do not have her disabilities. While the Tribunal cannot make the applicant’s case for her, it is reasonable to imply from Ms Robinson’s evidence that by saying she is unable to meet the requirement of attending the clinic in person because of her chronic back pain and her Hepatitis C, she is comparing herself to those methadone addicts who do not have those disabilities. The Tribunal is a forum that has many self-represented parties appear before it. This requires the Tribunal to give attention to the specific difficulties that face self-represented parties. This in certain circumstances may mean that the Tribunal can rely on the evidence before it to draw conclusions that the party may not have articulated or submitted.

60 While Ms Robinson did not specifically produce any evidence to show that a substantially higher proportion of people who are methadone addicts who do not have her combination of disabilities are able comply with the requirement, the Tribunal has determined that it is obvious that this would be the case. A substantially higher proportion of methadone addicts without any mobility problems and who do not suffer from nausea in the mornings would be able to comply with the requirement than people with Ms Robinson’s disabilities.

61 It is Ms Robinson’s particular combination of disabilities that makes it practically impossible for her to comply with the requirement. It is clear to the Tribunal that a significantly higher proportion of people who are methadone addicts who do not have her combination of disabilities would be able to comply with the requirement.

Was the requirement not reasonable?

62 In proving the elements of her case, including that the requirement is not reasonable, Ms. Robinson carries the burden of proof to the standard of the balance of probabilities. This standard was restated in Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 as being, in all civil cases, a requirement that the standard of proof to be met by the applicant is on the balance of probabilities. Carrying this burden of proof requires Ms Robinson to show that the Wentworth Area Health Service was acting unreasonably in its requirement that she attend in person and the Tribunal must start at the position that the requirement is reasonable. It is not enough for the Tribunal to infer that it is probably the case that the requirement is rigid and without basis.

63 Ms Robinson gave evidence that she had been able to have take home doses previously and this flexibility seemed to provide the basis for her belief that there was no reason as to why the take-home doses could not be provided to her now.

64 In his evidence, Mr Hedge explained that the rationale for the policy was to encourage a situation where new patients could be stabilised with the intention that those stabilised patients would then be treated by the community sector, leaving the clinics to deal with only the most acute cases.

65 The Tribunal understands the public policy and resources rationale behind the requirement but does not accept that this rationale is sufficiently critical to override Ms Robinson’s needs in relation to the combined effect of her disabilities. The Tribunal understands that the requirement is not always applied rigidly, in that people with certain kinds of disability are provided with home and/or takeaway doses. However, it has been rigidly applied to Ms Robinson.

66 The Tribunal accepts that the impact of rigidly applying the requirement on Ms Robinson is that, given the nature of the effect of her combined disabilities, she either has to skip doses (on mornings that she is too nauseous or insufficiently mobile to attend the Clinic), or that, if sufficiently mobile, she has to attend the pharmacy later in the day and then pay a fee for her dose that, given her level of welfare benefits, imposes an enormous financial burden on her.

67 Ms Robinson has not asked for and does not need regular home dosing. She has asked for regular takeaway doses so that she does not have to attend either the Clinic or the pharmacy daily and also does not have to pay for her doses.

68 In the Tribunal’s view, it would not impose any significant additional burden on either the staffing or resources of the Clinic or Wentworth Area Health Service for Ms Robinson to be provided with regular takeaway doses. Arguably, to give Ms Robinson an extra takeaway dose (or even two) at the same time as giving her an ordinary dose would only require a little more time and effort from staff. Indeed, it could equally be argued that giving Ms Robinson takeaway doses could alleviate the burden on the staff at the Clinic because they would not have to provide a service to her every day. In addition, the actual cost of providing the methadone would be the same whether the dose was given at the Clinic or given as a takeaway.

69 For these reasons, the Tribunal finds the imposition of the requirement on Ms Robinson as not reasonable having regard to the circumstances.

Remedy

70 Ms Robinson sought relief in the form of a better co-ordinated health care system, the introduction of a card system for methadone addicts to replace the current system and the prevention of new clinic staff making decision that will “change people’s lives at the drop of a hat.” Ms Robinson did not put forward a claim for monetary compensation.

71 In their application for dismissal under s.111, the Wentworth Area Health Service claimed that the Tribunal cannot grant the remedies Ms Robinson seeks and that this, therefore, takes the applicant’s claim beyond the Tribunal’s jurisdiction.

72 The Tribunal, in dismissing that application, noted that while it cannot grant Ms Robinson relief in the form that she seeks, section 108(2) provides the Tribunal’s power to grant remedies. It states:

(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,

(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant,

(d) order the respondent to publish an apology or a retraction (or both) in respect of the matter the subject of the complaint and, as part of the order, give directions concerning the time, form, extent and manner of publication of the apology or retraction (or both),

(e) in respect of a vilification complaint, order the respondent to develop and implement a program or policy aimed at eliminating unlawful discrimination,

(f) make an order declaring void in whole or in part and either ab initio or from such time as is specified in the order any contract or agreement made in contravention of this Act or the regulations,

(g) decline to take any further action in the matter.

73 Section 108(2)(b) empowers the Tribunal to enjoin the respondent from continuing or repeating any conduct rendered unlawful by the Act. Section 108(2)(a) allows theTribunal to make an order to compensate for loss and damage: Tabbouch v Noyeaux [2003] NSWADT 6.

74 Ms Robinson’s evidence was that she was deeply distressed and upset by the respondent’s conduct. She felt that she was being punished and humiliated by the rigid way in which the policy of attendance in person at specific hours was applied to her. While she gave no medical evidence to support this evidence, Ms Robinson was a credible witness and the Tribunal accepts that she was distressed as a result of being forced to comply with the requirement despite her disabilities. Taking Ms Robinson’s situation into account, the Tribunal awards damages for non-economic loss of $5 000. 00.

75 The Tribunal understands that Ms Robinson’s disabilities do not make her attendance at the clinic impossible but do cause her extreme difficulties in being able to meet the requirement that she attend every day. For this reason, the Tribunal believes that the respondent should be enjoined from continuing or repeating the imposition of the requirement that to receive free doses of methadone, the applicant must attend the Woodlands Clinic every weekday during the morning. The requirement should be tempered to accommodate Ms Robinson’s specific disabilities.

Orders

1. The Tribunal finds the Applicant’s complaint to have been substantiated.

2. That the Respondent pay the Applicant $5 000 as damages.

3. The Respondent is enjoined from continuing or repeating the imposition of the requirement that to receive free doses of methadone, the applicant must attend the Woodlands Clinic every weekday during the morning. For example the Respondent could, if requested by the Applicant, provide the Applicant with an additional take home dose on any weekday that she attends the clinic for dosing, and with two additional take home doses on any Friday she attends the clinic for dosing, up to a maximum of four take home doses in any seven day period.