Robinson v Wentworth Area Health Service (No 2)

[2005] NSWADT 220

CITATION:	Robinson v Wentworth Area Health Service (No 2) [2005] NSWADT 220
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Richelle Robinson RESPONDENT Wentworth Area Health Service
FILE NUMBER:	031119
HEARING DATES:	03/06/2005
SUBMISSIONS CLOSED:	06/03/2005
DATE OF DECISION:	09/30/2005
BEFORE:	Behrendt L - Judicial Member; Mooney L - Non Judicial Member; Lowe A - Non Judicial Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	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 Li & Anor v Westbus Pty Ltd & Anor. [2002] NSWADT 260 Omeri v Quality Assurance Service Pty Ltd [2003] NSWADT 188 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Siddiqui v Australian Medical Council (2000) EOC ¶93-059 Strong v Hospitals Contribution Fund of Australia Limited [2004] NSWADT 176
REPRESENTATION:	APPLICANT In person RESPONDENT E Bruce, Barrister
ORDERS:	1. The Respondent’s application under s.111 of the Anti-Discrimination Act 1977 to have the Applicant’s complaint of indirect discrimination on the basis of disability is dismissed; 2. The Tribunal will set a date for a case conference in consultation with both parties.

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 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 Blue Mountains District ANZAC Memorial Hospital and run by the Wentworth Area Health Service.

3 Ms Robinson complains that on 11 February 2002, the respondent implemented a policy that required her to attend the clinic daily and in person to receive her dose and that dosing would be administered between the hours of 7.15 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 a disability on the basis of having Hepatitis C and because she is suffering from chronic back pain related to a spinal condition. This, she asserts, makes attending at the Woodlands Clinic in person difficult. She claims that the Hepatitis C makes her feel nauseous during the hours it administers methadone doses and this makes it difficult for her to make it to the clinic in the morning and that the back pain makes it difficult for her to walk the distance. Ms Robinson says that, although currently she has a friend who can drive her to the clinic, in the past she has not had access to a car and was therefore reliant on public transport. In addition, she states that there are no buses on Sunday.

5 She claims that when the Woodlands Clinic required her to attend daily and in person to receive her methadone dose she was unable to comply with this requirement due to her disabilities (Hepatitis C and chronic back pain). She claims that this requirement that she attend daily and in person is not reasonable.

6 Ms Robinson also claims that she had asked for home dosage on occasion due to her health but on each occasion that has been refused. She also asserts that 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 Attached to the President’s report was a Wentworth Area Health Service “Pharmacotherapies Service Nursing Assessment Form” that had been completed by a staff member. It stated that Ms Robinson 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 given to the staff member of the Wentworth Area Health Service.

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 Sunday. Also attached was the Western Area Health Service Pharmacotherapies Home Dosing Policy.

10 On 26 February 2004 the respondent wrote to the Public Interest Advocacy Centre requesting better and further particulars, namely, a request for details of what disabilities Ms Robinson is alleging she was discriminated on the basis of, what definition of disability under the Anti-Discrimination Act 1977 she is relying on and the basis on which she alleges that she was treated less favourably by the respondent than persons without these alleged disabilities. On 1 March 2004, the Public Interest Advocacy Centre withdrew from acting for Ms Robinson and she has been self-represented from that time.

11 At a case conference on 2 April 2004 further direction was given to Ms Robinson that she was required to provide the better and further 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 asserts that these 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 better and further 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 s.111 of the Anti-Discrimination Act 1977 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 better and further particulars had placed them in a position where it is hard to respond to the allegations and make out their defence.

15 Section 111(1) of the Anti-Discrimination Act 1977 states:

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 merely asserts that she has a disability. They argue 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 is “misconceived” or “lacking in substance” as there is no evidence that there is a breach of the legislation. They argue that, taken at its highest, Ms Robinson has not made a case for a breach based on the material she had provided to the Tribunal.

18 Without the better and further particulars that they have requested, the Western Area Health service asserted that it was in the position of having to speculate about the case they are expected to respond to and this puts them in an unfair 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. Omeri v Quality Assurance Service Pty Ltd [2003] NSWADT 188. The Tribunal, in its decision, noted that Ms Robinson was self-represented and was appearing against legal counsel with considerable expertise in the area of discrimination law 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 Ms Robinson submitted further information to the Tribunal following the decision in the s.111 application. This included

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

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;

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

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;

a letter from Ms Robinson to the Tribunal detailing the problems she encounters when at the clinic including encountering patients at the clinic 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 decision that will “change people’s lives at the drop of a hat”.

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.”

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

23 The Wentworth Area Health Service also claims that the remedies that the applicant seeks are beyond the power of the Tribunal to grant and that it would be contrary to the public interest to allow the complaint to proceed.

24 At the hearing of the s.111 application, the Tribunal gave Ms Robinson the opportunity to present her case in its entirety before the application was considered.

25 In addition to the material filed with the Tribunal, Ms Robinson gave oral evidence at the hearing on 3 June 2004. Under oath, she gave 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.

26 Ms Robinson gave evidence that her medical conditions made it hard for her to travel to the clinic though noted 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 on occasion can 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 7.15-10.45am.

27 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 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.

28 What was also apparent from Ms Robinson’s evidence is that she feels 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 describes 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.

29 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 been healed.

Findings – on the issue that Ms Robinson’s complaint was misconceived and lacking in substance

30 The respondent’s assertion that Ms Robinson’s complaint is misconceived and lacking in substance because they have no factual basis requires the Tribunal to take the evidence that Ms Robinson has presented at their highest. The power to summarily dismiss a complaint under that section should be exercised with extreme caution and the Tribunal must approach s.111 applications on the basis that the applicant must be given every reasonable opportunity to set out the content of a complaint and to produce evidence to support it. Fricke v Corbett Research Pty Ltd [2004] NSWADT 128; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4.

31 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.

32 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.

33 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.

34 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.

35 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.

36 A claim of indirect discrimination requires an investigation that a requirement that on it’s face may seem neutral and of equal application to all, in fact disadvantages a particular group of people. To make out a claim of indirect discrimination, Ms Robinson will need to show that the condition of reporting in person at the Woodlands Clinic for a daily dose of methadone is one that those who do not have her disability are able to comply with. She has not addressed this criterion specifically in her material before the Tribunal even though she has shown that it is not easy for her to attend the clinic.

37 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.

38 With these pronouncements as a guide, Ms Robinson will have to compare her capacity, given her disability (chronic back pain and Hepatitis C), to comply with the requirement (attendance in person at the Woodlands Clinic between certain set hours) with methadone addicts who have to attend the clinic who do not have her disability. That she has not articulated this precisely is perhaps indicative 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. While the Tribunal cannot make an applicant’s case for them, 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.

39 In order to satisfy the element of s.49B(1)(b), Ms Robinson will also have to show that the requirement of having to attend in person at the Woodlands Clinic between the hours of 7.15 to 10.45 a.m. is, having regard to the circumstances, unreasonable. Ms Robinson did give oral evidence that she had been able to have take home doses before and this prior flexibility in approach seemed to provide the basis to her belief that there was no reason as to why the take-home doses could not be provided to her now.

40 In proving that the policy is not reasonable, Ms. Robinson carries the burden of proof to the standard of the balance of probabilities. s140 of the Evidence Act 1995. 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. For the purposes of this hearing we are required to take the evidence in the applicant’s case at it’s highest to determine whether the evidence is capable of amounting to a contravention of the Act. Li & Anor v Westbus Pty Ltd & Anor. [2002] NSWADT 260.

41 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.

42 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.

43 It is anticipated that the Wentworth Area Health Service would seek to provide evidence to the Tribunal to counter Ms Robinson’s claim and demonstrate that daily attendance in person between set hours is reasonable or to meet the exception in s.49M(2) that holds that it does not amount to discrimination if a service would impose unjustifiable hardship on the person who provides it. However, at this stage, the Tribunal has not had the advantage of hearing any such evidence.

44 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.

Findings – on the issue that the remedies sought cannot be granted by the Tribunal

45 The Wentworth Area Health Service also claims that the Tribunal cannot grant the remedies Ms Robinson seeks and that this, therefore, takes the applicants claim beyond the Tribunal’s jurisdiction. 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 decisions that will “change people’s lives at the drop of a hat.” Ms Robinson did not put forward a claim for monetary compensation.

46 It is clear that the Tribunal cannot grant Ms Robinson relief in the form that she seeks. Section 113 provided the Tribunal’s power to grant remedies at the time the s.111 application was made by the Wentworth Area Health Service. It states:

113 Order or other decision of the Tribunal

(1) After holding an inquiry, the Tribunal may:

(a) dismiss the complaint the subject of that inquiry, or

(b) find the complaint substantiated and do any one or more of the following:

(i) except in respect of a representative complaint or a matter referred to the Tribunal for inquiry as a complaint pursuant to section 95, order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent’s conduct,

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

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

…

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

47 Clearly, Ms Robinson’s request for “a better co-ordinated health care system”, her request that a card system be introduced for methadone addicts and the prevention of staffing decisions “at the drop of the hat” are beyond the powers of this Tribunal to order.

48 However, the Tribunal is able to use the powers under s.113 to redress any wrongs done to the applicant that amount to a breach of the act.

49 Ms Robinson’s claim was based on her experiencing difficulties in attending the clinic due to her chronic back pain and Hepatitis C. If the Tribunal forms the view that that Ms Robinson has established a case for indirect discrimination on the basis of disability, it has the power to make an order under s. 113. If Ms Robinson is successful in her claim, it is within the Tribunal’s power to address any behaviour that amounted to discrimination. Section 113(b)(ii) empowers the Tribunal to enjoin the respondent from continuing or repeating any conduct rendered unlawful by the act and s.113(b)(iii) provides the power to order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant. There is nothing in s.113 that limits the Tribunal’s power to make orders to those specifically requested by the applicant so long as they redress a wrong suffered personally by the applicant.

50 For the above reasons, the Wentworth Area Health Service’s application under s.111 of the Anti-Discrimination Act 1977 to have the Ms Robinson’s complaint of indirect discrimination on the basis of disability is dismissed and the Tribunal will set a date, in consultation with the parties, for a case conference.