Taikato and Nakhle v Western Sydney Area Health Service

[1999] NSWADT 52

CITATION:	Taikato and Nakhle v Western Sydney Area Health Service [1999] NSWADT 52
DIVISION:	Equal Opportunity
APPLICANT:	Jo-Anne Taikato and Gassan Nakhle
RESPONDENT:	Western Sydney Area Health Service
FILE NUMBER:	7 of 1997
HEARING DATES:	02/15/1999; 02/16/1999; 02/17/1999
SUBMISSIONS CLOSED:	02/17/1999
DATE OF DECISION:	19 July 1999
BEFORE:	G Ireland - Judicial Member K Edwards - Member O McDonald - Member
PRIMARY LEGISLATION:	Anti Discrimination Act 1977
APPLICATION:	Disability Discrimination - Goods and Services -
MATTER FOR DECISION:	Principal matter
REPRESENTATION:	Applicant: K Chamberlain of counsel instructed by Penmans, Solicitors Respondent: C Ronalds of counsel instructed by D Frew, solicitor
ORDERS:	1. In relation to the claims of Ms Taikato against the Respondent: - That the claim of indirect discrimination under Section 49A (3) of the Act is not substantiated and is dismissed. - That the claim of unlawful discrimination in relation to the finding of direct discrimination, under Section 49K (1) (b) of the Act is substantiated. - That Section 49K (2) (a) and (b) of the Act does not apply to exclude the discrimination under Section 49A (1), from being unlawful. - That the Tribunal under Section 113 (1) (b) (i) of the Act directs that the Respondent pay by way of damages to Ms Taikato an amount of $15,000.00 within a period of 21 days from the date of this decision. 2. That the claim by Mr Nakhle under Section 49A (1) of the Act is not substantiated and is dismissed. 3. That either party be at liberty to apply to the Tribunal within 21 days from the date of this decision to seek an order for the payment of the costs of the parties arising out of this inquiry. If such an application is not made in this period, the Tribunal directs that there be no order as to the costs in relation to this inquiry.

PER IRELAND AND EDWARDS

1 The decision of the Tribunal in this inquiry is not unanimous. The majority decision is the decision of the judicial member, Mr G Ireland, and the non-judicial member, Ms K Edwards. Mr O McDonald, non-judicial member, has produced a separate decision which differs from the reasons of the majority.

2 In this document, the references to the Tribunal and its views, refer to the majority members of the Tribunal and to the views of those two members.

3 The Tribunal has completed its inquiry into a complaint made jointly by the Applicants and referred to the Tribunal by the President of the Anti-Discrimination Board under Section 94(1) of the Anti-Discrimination Act 1977 (NSW) (“the Act”). The President attached a report of his investigation into the complaint, and by consent, a copy of that report was an exhibit in the inquiry.

4 The complaint, although made jointly, is not, on examination, capable of being dealt with as a joint claim and, by consent of the parties, the Tribunal proceeded on the basis of the complaints by Ms Taikato, and the complaints of Mr Nakhle, being considered as separate complaints, with the evidence presented to the Tribunal, being treated as evidence applicable to each complaint.

GENERAL BACKGROUND

5 The two Complainants are not married but have been living in a de-facto relationship for a number of years. They were unable to conceive a child. They first attended the Infertility Out-Patients Clinic at Westmead Hospital on 13 May 1992. That Clinic is a separate Clinic from the Westmead Fertility Centre. The Clinic investigates causes of infertility. The Complainants attended the Clinic on a number of occasions from 13 May 1992 to 10 February 1993. They first attended the Westmead Fertility Centre for assessment for assisted reproductive technology treatment on 8 June 1993.

6 Dr Howard Smith has been the Clinical Director at the Fertility Centre since 1988. During the relevant periods relating to Mrs Taikato’s treatment at the Clinic and at the Centre, Dr Smith was a member of staff of both the Clinic and the Centre. Dr Smith was directly involved in the investigation conducted at the Clinic in relation to Mrs Taikato and subsequently was responsible for the treatment she received at the Centre. In March 1993 the Clinic, through Dr Smith, obtained from Professor Farrell, Professor in Hepatic Medicine and Head of the Department of Gastroenterology and Hepatology at Westmead Hospital, an opinion as to her status in relation to her infection with Hepatitis B and Hepatitis C and the risk of her transmitting one or more of these viruses to her offspring, if she eventually became pregnant.

7 Professor Farrell, in a letter to Dr Smith of 8 March 1993, confirmed that Mrs Taikato suffered from chronic active Hepatitis, due to the combined infection of the Hepatitis B and Hepatitis C viruses. He stated that her condition indicated that she did not have active Hepatitis B viral replication and that she suffered from a liver disease which was due mainly to the Hepatitis C infection. She had a course of Interferon treatment during the last four months of 1990 but she had not responded to this treatment. He stated that the amount of inflammation of her liver could be contributing to infertility. He stated that the Hepatitis B infection posed no real problem in relation to transmission to an infant. In relation to transmitting Hepatitis C to her baby, he stated that it would be at worst about a 5% or less chance of transmission. He stated, “We also do not know whether such transmission is true transplacental spread in utero or whether like B, it is related to contamination of maternal blood at the time of birth”.

8 After consideration of this advice, Dr Smith on 20 April 1993 wrote to Ms Taikato’s General Practitioner. Dr Smith advised that Ms Taikato and Mr Nakhle had attended the Clinic on 7 April 1993 to enquire about further treatment for their primary infertility. He stated that they have now been attempting to become pregnant for more than 9 years and that investigations by a number of specialists had not identified an abnormality responsible for the infertility. He then stated, “For this reason, they would be offered treatment on the GIFT Program.” The term “GIFT” means Gamete Intra Fallopian Transfer. In his letter to the General Practitioner, Dr Smith stated, “For this reason, arrangements have been made for them to attend the Human Reproduction Unit at Westmead Hospital and I expect they will commence a cycle of treatment within the next few months, providing this does not interfere with any treatment being organised through the Hepatology Clinic.”

9 In his evidence to the Tribunal, Dr Smith describes the GIFT procedure, “Whereby oocytes [eggs] are removed from a female’s ovaries and inserted into her fallopian tubes along with sperm. Fertilisation takes place in the fallopian tubes. GIFT can be distinguished from In Vitro Fertilisation (IVF) where fertilisation of the oocyte by sperm takes place “in vitro” in a laboratory. GIFT does not, therefore, involve the creation of embryos in a laboratory. However, usually when performing GIFT, any excess eggs obtained from the female which are not inserted into the fallopian tubes with sperm are taken back to the laboratory for fertilisation in vitro and cryo preservation. Although this technical distinction exists between IVF and GIFT, the term “IVF” is often used to describe several different kinds of fertility treatment including GIFT.”

10 Dr Smith also stated that in the first half of 1993 he had conversations with Professor Tony Cunningham, a Virologist, and Director of the Westmead Institute of Health Research, regarding the risk of transmission of Hepatitis B and C to the laboratory staff and other embryos through the assisted reproductive treatment of Hepatitis B and C positive patients. Dr Smith also had meetings with the medical nursing and scientific staff of the Centre in relation to this issue. Dr Smith continued that, “As a result of these discussions and my own expert knowledge in assisted reproductive treatment, I was of the view that there was a risk of the spread of Hepatitis B and C to other embryos if genetic material which was infected with Hepatitis B and potentially infected with Hepatitis C, was cryo preserved. This risk resulted from the fact that the plastic vessels in which sperm and embryos are frozen sometimes leak or shatter during the cryo preservation process. This has happened previously at the Human Reproduction. Should this occur, I was concerned that the infected material could contaminate the storage medium and infect other embryos stored in the cryo preservation tank. The Human Reproduction Unit [the Centre] did not, at that time, have separate storage tanks for cryo preserving genetic material which was an infection risk. I was also concerned about the risk of transmission of Hepatitis C to laboratory staff through the practice of mouth pipetting. This is the movement of genetic material by means of a glass pipette operated by mouth by the laboratory staff. Mouth pipetting is necessary in the handling of embryos in the laboratory and we had no equipment at that time to move this material in an alternative manner. Laboratory staff, could at that time, be immunised against Hepatitis B, but could not be immunised against Hepatitis C".

11 Dr Smith also stated that because of these issues, he decided, in concurrence with members of the clinical and laboratory staff at the Centre, that Ms Taikato would not be provided with cryo preservation but that the GIFT treatment could proceed.

12 When Ms Taikato first attended at the Centre on 8 June 1993 she was seen by Dr Kim Matthews. She was accompanied by Mr Nakhle. Dr Matthews did not give evidence to the Tribunal. Included in the written material exhibited to the Tribunal, was a copy of Clinical Notes made by Dr Matthews in relation to her attendances on Ms Taikato and Mr Nakhle on that occasion. The material also included copies of what are referred to as Consent Forms, being a form headed “Request and Consent for In Vitro Fertilisation" and a form headed “Consent for Freeze-Thawing of Fertilised Oocytes”. Both forms are signed by Ms Taikato and Mr Nakhle. The forms are dated 8 June 1993. Dr Matthews’ Clinical Notes of that meeting refer to the Consent Forms being signed but make no reference to the intention not to cryo preserve any excess eggs obtained from Ms Taikato during the GIFT process.

13 Dr Smith in his evidence acknowledged that it was possible that Dr Matthews was not aware of the decision already taken by Dr Smith that any excess eggs obtained from Ms Taikato would not be cryo preserved. The two Consent Forms signed by Ms Taikato and Mr Nakhle are the same forms used for patients proceeding to the full In Vitro Fertilisation program including the cryo preservation of additional eggs.

14 Mr Nakhle stated in his evidence that his understanding of those documents was, “Any extra embryos that were made for me and my spouse would be frozen and nothing else would be done with them apart from – any healthy embryos, and they were all health embryos because there is something that they state there if it is not a health embryo they don’t have to freeze them.”

15 In relation to the signing of the forms, Mr Nakhle stated, “When I was signing the forms, I raised concerns about my embryos and if they could be dealt with without my consent and I was guaranteed that they would never be touched without our consent, that was the only conversation that I had to do with that, was when we were signing the forms, I just wanted to make sure that no one would touch them.”

16 Ms Taikato, in her evidence relating to the signing of the Consent Forms, said that there was a long conversation with the Head Sister. It is possible that Ms Taikato was confusing Dr Matthews as a Nursing Sister. Ms Taikato stated that the conversation was about the procedure of IVF, “If they harvested my eggs and they were fertilised, about the freezing of those embryos and about being consented for the procedures that were happening.” When asked about what she was told concerning the freezing of the embryos, Mrs Taikato, stated, “That we would be contacted or that it would go through an IVF Ethics Committee if anything was to happen to those embryos.”

17 The Tribunal notes that such a statement is consistent with the provisions of the Consent Forms. Ms Taikato also stated, “Well they were going to take me through the GIFT program and even though I was going through GIFT, there was still discussion that if there were more embryos left that they would be frozen.” Mrs Taikato said that this statement was made to her by the Head Sister. Ms Taikato said that they were given the forms to read and told that if there was any questions that they were to discuss them with the Nurse. Mrs Taikato said that the conversation with the Nurse led her to believe that discussions would take place with she and Mr Nakhle before anything was done in regard to the embryos. When questioned further about what was said to her and Mr Nakhle at that time, Ms Taikato said, “And I asked also what, would be the outcome if there were more, more than the required amount of – because they only are allowed to put three embryos back into the woman’s uterus. I asked what would be – what would happen if there were more than the required amount that they were going to put back and I was told that they would be put into freezing for later use.”

18 Included in the material exhibited to the Tribunal, but not referred to in the evidence of any of the witnesses, is a form signed by Ms Taikato dated 13th August 1993 which is part of the Hospital Admission Form relating to her admission for a planned operation described as “transvaginal oocyte pickup and GIFT”. The part of the form headed “Consent by Patient” describes the consent to undergo the operation and/or investigation of “transvaginal oocyte pickup and gamete inter fallopian transfer”. Mrs Taikato’s signature to that form is witnessed by Dr Smith.

19 The GIFT procedure on Mrs Taikato was carried out in the operating theatre on 18 August 1993.

20 Before describing the processes relating to Mrs Taikato’s operation, it is necessary to relate to the evidence of Dr Smith in describing the GIFT process. He confirmed that GIFT is a variation of IVF and that people who are having the GIFT treatment have the same process initially. There is a small variation applied from the time the eggs are actually collected from the female. Dr Smith stated, “Once the eggs have been collected, then there are two possible ways of handling them from that point. In the standard IVF routine the eggs are taken to the laboratory and mixed with a sample of the husband’s sperm and left in the incubator in the laboratory for – usually 2 days. That is the standard IVF procedure, and during that time in the incubator the egg and the sperm you would expect at least some of them would join together and that is called fertilisation, and those fertilised eggs can then be replaced into the woman’s uterus, usually on the third day after they have been collected. Now in the GIFT procedure, which is the variation, at the time eggs are collected, we in advance have prepared a sample of the husband’s sperm and take it into the operating theatre, so it is available in the operating theatre at the time the eggs are collected, and instead of them taking the eggs back to the laboratory, in the operating theatre the scientists quickly mixes egg and sperm together and places – then gives it back to the Doctor who places that mixture back inside the woman’s fallopian tube. So that in fact is placed back inside her body for fertilisation to occur within the next twelve hours or so but inside her body.” He stated that it is not known whether fertilisation occurs in that procedure until pregnancy is confirmed, two weeks later.

21 Dr Smith described the process of freezing fertilised eggs in these terms, "[the eggs] have been taken to the laboratory as separate eggs and sperm, they have been put together and left overnight, and then they’re examined to confirm that the egg and the sperm have joined together. They’re left to grow for another day in the incubator, and then on that day, the normal process would be to transfer one or two of those fertilised eggs back to the woman’s uterus, and if there are other eggs which became fertilised in the laboratory, then one of the options you have is to preserve them by freezing them".

22 Dr Smith described the other choice in relation to the eggs, is, if the couple did not wish to preserve the eggs, the eggs were left in the incubator and allowed to fragment, a process which normally occurred on the next day.

23 When asked what was the practice to determine the parents’ choice in 1993, Dr Smith stated, “Simply to explain that to them and to tell them they were the possibilities.” He stated that the explanation was given before the treatment was started and he then said, “Now of course there have been other factors overriding that particularly, in this particular case, but this was the first instance that we came across this concern, and that is that the possibility of storing them, there were some very real practical issues of being uncertain whether these tissues carried a virus which when placed into a storage …”.

24 The freezing process is described by Dr Smith in these terms, “The freezing/thawing process though adds an element of risk to the process and I should explain, to freeze the tissue, to store it, it has to be stored in liquid nitrogen at minus you know 300 to 200oC and to do that there is a fairly intricate process requiring a machine which extracts the water from them and replaces the water with anti-freeze basically. It is a very carefully controlled process requiring machinery that controls the rate at which the fluids move and the rate at which the temperature is decreased, and that process, if it is successful, will allow you to place them into a deeply frozen state and if they’re in that state, then so far as we know, they can be kept indefinitely.” The freezing is carried out in a machine described as a Planar Freezer

25 In 1993 the Centre had only one machine to freeze all samples. It did not have a duplicate machine. Dr Smith described the machine as very expensive, in the order of $15,000.00. Dr Smith stated that it was not possible that the Centre could have purchased a second freezing machine to accommodate the freezing of Ms Taikato’s excess oocytes. He stated, “They’re often actually not even available in the country, they need to be imported so it is usually a number of months before they become available”.

26 After the machine freezes the eggs, Dr Smith described that the eggs are placed in a tank which sits on the floor and is as high as a desk and the tank contains liquid nitrogen. “It is a large stainless steel thermos flask .. and into that tank are placed the samples of all the couples who are having this treatment so that there would be hundreds of fertilised eggs in there from different couples … the fertilised eggs are actually stored in each obviously in a different straw … there could be more than one egg in the one straw … it is open at one end … it is plugged at the other end with some material that just forms a plug, like cotton wool. The egg is introduced into that and then it is frozen once it is inside there and then the open end is actually sealed with some powder, and once it is frozen, that is placed inside this large tank along with all the other samples.” The straw containing the egg cannot be sealed until the water in the straw is withdrawn by a process of adding fluids and different concentrations of water and glycol. The machinery is a box that sits on a bench and it has various pipes and fluids coming in and out of it and is attached to a source of liquid nitrogen vapour.

27 Dr Smith stated that a scientist in the unit, Dr Kossakowski, expressed concern that there was a possibility of contaminating the machine and particularly of contaminating the storage tank if embryos carrying a virus were placed in the tank along side other embryos. This could occur if one of the straws containing a contaminated embryo fractured. Dr Smith stated, “The critical time for that to occur is in fact when it is being placed or removed from the tank, there is a possibility that the liquid nitrogen which may evaporate will expand and cause the plug at the end to blow off or the tube itself could be cracked simply by physical abrasion.” In 1993 there were approximately 500 straws stored in the tank.

28 Dr Smith stated that in relation to Ms Taikato and Mr Nakhle,

“It was never the intention of our embryologist for this particular couple in fact to freeze tissue and so the scientists in fact had anticipated, we had discussed this previously that this couple would be treated using the GIFT routine and that we would not be cryo preserving any other tissue. The reason for doing that was to prevent the possibility of virus containing material from – contaminating things in the laboratory which might pass onto other couples. So that their intent, that was our understanding at the beginning of this treatment. …. So that in this situation, that was the intent that we agreed after a long discussion we could offer this couple treatment based on the GIFT routine, and that was on the basis of the data that we had before us before we had commenced the treatment. …. So we set out with the intention of doing GIFT. At the time we came with the eggs and the sperm to replace them in her fallopian tubes, in fact the Doctor involved found that the tubes were scarred and blocked and it was not possible to replace this mixture of egg and sperm back into her fallopian tubes. … That was discovered after the eggs had been collected and the sperm had been collected, they had been mixed together and they were ready to be replaced into her fallopian tubes. All that happens in the operating theatre. It was discovered at that point that in fact it was not possible to do this. The scientists then after a lot of further discussion, in fact they had great reluctance to do this, said well look we can actually keep this mixture of egg and sperm in a disposable plastic cultured dish. In other words, it is a once only for this particular couple. We can keep it in this dish. …. It has a lid on it, it is a small dish only a couple of centimetres diameter, really with a lid on, that’s placed – so it is a sealed container placed inside the incubator in the laboratory to allow the possibility that the fertilisation then could occur in the laboratory and then two days later we could replace fertilised eggs back into this woman’s womb as according to the normal IVF procedure.”

29 When asked about the particular concerns of the staff, Dr Smith stated, that there were two concerns. The first being that the material containing the Hepatitis C virus might enter the equipment and affect the health of the fertilised eggs of other couples. The second concern was a concern to the staff themselves, that is the scientists who have to deal with the contaminated tissues in the laboratory. The scientists were required to manipulate the material by moving them around and processing them in the laboratory. This process involved transferring the eggs from the culture dish into the tube by using a pipette. The scientists applied suction by putting a rubber tube at the end of the pipette into the scientist’s mouth. Dr Smith stated that this was a technique common to IVF procedure and the reason for it was that it was the only way scientists could exert the very fine control of suction that was necessary. Subsequently further skills have been developed which enable hand held devices to be used but in 1993 it was done by mouth pipetting, the concern being that the scientist could aspirate fluid that may contain the virus.

30 In 1993 the scientific knowledge of the transmission of Hepatitis C from one person to another was not clear and today it is still not clear how some people contact the virus. In 1993 there were instances of Hepatitis C reported from people inhaling vapour or fluid that contained the virus. Those instances had been reported generally at that time.

31 When Ms Taikato attended Westmead Hospital on 18 August 1993, ten oocytes were removed from her ovaries. On laparoscopy, it was found that her fallopian tubes were involved with chronic salphingitis and had smooth clubbed ends. The fimbrae were not visible and there were extensive adhesions. In these circumstances it was not possible for Ms Taikato to become pregnant by the GIFT treatment. The scientist attached to the Centre, Dr Kossakowski, an Entomologist in charge of Mrs Taikato’s and Mr Nakhle’s genetic material in the laboratory, attended to the transfer of the oocytes taken from Ms Taikato to the laboratory where they were incubated in disposable plastic culture dishes. Seven of the ten eggs, became fertilised.

32 Ms Taikato returned home after completion of the procedure for the harvesting of her eggs on 18 August 1993. On the following day, 19 August 1993, Mr Kossakowski telephoned Ms Taikato at her home and told her that seven of her eggs had been fertilised and requested that she return to the Hospital on the following day for the purpose of having three of those eggs implanted into her uterus.

33 Ms Taikato returned to the Centre on 20 August 1993 when three of the seven fertilised eggs were placed into her uterus. On the afternoon of 20 August 1993 Mr Kossakowski had a conversation with Dr Smith in which Dr Kossakowski reminded Dr Smith that as the laboratory did not have duplicate equipment which could allow the quarantining of Ms Taikato’s fertilised oocytes that the process of cryo preserving the oocytes may cause the freezing equipment and storage vessel to become contaminated.

34 Dr Smith stated that he decided that as there was no time to assemble equipment to allow cryo preserving in separate facilities nor was it practicable to find a laboratory which would agree to cryo preserve them or to transport them to such a laboratory, that he saw no option other than to not freeze them.

35 As a result, the four remaining fertilised oocytes were left in the disposable culture dish. On 21 August 1993 when the culture dish was inspected by Mr Kossakowski, the remaining embryos were observed to have become fragmented. The culture dish and its contents were disposed of in accordance with the protocol for the disposal of human tissue from the laboratory.

36 Mrs Taikato stated that on 20 August 1993 Mr Kossakowski had spoken to her before he did the implant. He showed her under the microscope three embryos which were to be implanted into her and she stated, “At the same time I was told that the remaining embryos had been destroyed because of my Hepatitis C status and because of the fear of contamination ... and he also went on to say that because I was still very young and fertile that there would not be a problem in harvesting more eggs.” Ms Taikato said that she could not be certain that Mr Kossakowski had used the word “destroyed” in describing the fate of the remaining four fertilised eggs.

37 Ms Taikato stated that her next attendance at the Clinic was on 23rd September 1993. There is some dispute as to that date. Dr Smith gave evidence that the appointment took place on 27th September 1993. It is more likely that this latter date is correct. There is no significance in the precise date and the Tribunal has adopted the 27th September 1993 as the date on which Ms Taikato next attended at the Clinic. She was accompanied at that appointment by Mr Nakhle. Ms Taikato described the conversation with Dr Smith on that occasion, related to whether or not Dr Smith wished to further treat Ms Taikato and Mr Nakhle because of Mrs Taikato’s Hepatitis status and also because of their marital status and Mr Nakhle’s methadone treatment. Ms Taikato stated that Dr Smith said that the IVF cycle was a failure and that he needed to discuss the situation further with his team before they would offer further treatment to her and Mr Nakhle. She said that her understanding of their position from Dr Smith’s statement to them was that they had now been temporarily suspended from the program until further discussion had taken place between Dr Smith and his team at the Centre.

38 In an Affidavit relating to the conversation that he had with Ms Taikato and Mr Nakhle on this occasion, Dr Smith stated,

“I hope you will understand, we could not take the risk of spreading either of the Hepatitis viruses through the laboratory equipment. Since your treatment cycle in August the staff of the Human Reproduction Unit has been planning the best way help couples in your situation. I expect we will be able to offer you more treatment. However, this should wait at least until we are able to test for the presence of the Hepatitis C virus rather than just the Hepatitis C anti-body and until a Policy decision is made by the team.”

39 On 27th September 1993 Dr Smith wrote to the General Practitioner treating Ms Taikato in which he described what had occurred at the procedures on 18, 19 and 20 August 1993, and he concluded,

“Their situation will be discussed at a monthly meeting of the HRU team in the near future before they are encouraged to attempt this form of treatment again.”

40 Annexed to the Affidavit of Dr Smith was a copy of Minutes of a Meeting held at the Human Reproduction Unit on 11 November 1993. The Minutes referred to an item at the Meeting headed, “Hepatitis C” and the Minutes recorded,

“It was decided by HRU staff that for the reasons stated above and because there is no immunisation against this that there is no treatment for Hepatitis C patients at this stage with a view that these patients can contact the Unit again in six months time to see if there is any update to Hepatitis C.”

41 The reason stated above was, “The affects of Hepatitis C are still largely unknown.”

42 On 11 November 1993, Dr Smith wrote to Ms Taikato informing her of the decision taken at the Meeting of the staff at the Unit and advising her that it had been decided to delay commencing treatment of any patient for at least the next six months until the situation has been clarified, and concluded by saying that the situation will be re-evaluated within the next six months and sooner if new information becomes available which would affect the decision.

43 Dr Smith also stated that he telephoned Ms Taikato and Mr Nakhle on 11 November 1993 and told them, “The unit has decided to postpone further assisted reproduction treatment for you until we are able to demonstrate absence of the virus by blood testing. We hope to be able to offer routine testing of the Hepatitis C virus within six months.” In their evidence, Ms Taikato and Mr Nakhle state that in the telephone conversation Dr Smith stated that they had been terminated from the program. Dr Smith denies that he made such a statement or that any such decision had been taken or that that description was a correct description of the situation.

44 Minutes of the Meeting of the Unit held on 5 May 1994 were exhibited to the Tribunal. Under the heading, “Hepatitis C” the following is recorded, “Antigen still not detected therefore effects on transmission are still largely unknown. HRU Policy remaining the same for treatment of Hepatitis C patients. Scientists said to have bloods of infectious Hepatitis B and C patients earmarked for their attention.”

45 The Minutes of the Meeting of the Unit held on 2 February 1995 show that in relation to Hepatitis C, the Meeting discussed the Centre’s Policy of treating Hepatitis C patients which still stood, “ie, PCR Assay positive no treatment until further information comes to light re Hepatitis C.”

46 Dr Smith wrote to Ms Taikato and Mr Nakhle on 11 May 1995 to provide them with an update of the situation in relation to the Hepatitis C investigation at the Hospital. The letter stated that the Hepatitis C virus assay (PCR assay) is still not available as a routine investigation, but the laboratory has agreed to do an assay on a small number of patients. The letter stated that if Ms Taikato and Mr Nakhle wished to be reconsidered for IVF treatment at the Hospital, Dr Smith would like to obtain another serum sample from each of them which could be assayed for Hepatitis C virus. The letter enclosed the necessary forms required for this blood test. Ms Taikato stated that she did not contact the Hospital after receiving that letter “because we had already spoken with Dr Smith about it.” Ms Taikato and Mr Nakhle did not attend at the Hospital to enable the tests to be conducted.

47 Dr Smith stated that since May 1997 the Centre had purchased facilities which allowed it to cryo preserve genetic material which is infectious in quarantine facilities. On the 15 April 1997 the Centre wrote to all participants whose treatment with assisted reproductive technologies was delayed due to the Hepatitis status. A copy of that letter was sent by the Legal Office for the New South Wales Department of Health to the Solicitor acting for Ms Taikato and Mr Nakhle on 5 August 1997. No response was received by the Centre from Ms Taikato and Mr Nakhle to that letter. The letter stated that full facilities were now in place at the Centre to enable it to offer all aspects of assisted reproduction treatment and inviting recipients to contact the Secretary of the Centre if they remained interested in having this form of treatment. The letter also invited recipients to contact Dr Smith or Acting Professor Illingworth at the Unit, to discuss the appropriate treatment for their situation. Ms Taikato confirmed that she received a copy of the letter of 15 April 1997 directly sent to her and that she also received a copy through her Solicitor and that she did not respond to that letter.

48 In explaining her reaction to the letters written by Dr Smith, Ms Taikato stated that the letter written by Dr Smith on 27 September 1993 was written at her request following his telephone conversation with her on that day. Ms Taikato said that she requested Dr Smith to put in writing what he had said to her on the phone and that there was a difference between what she was told on the phone by Dr Smith and what was stated in the letter. The difference being that in the telephone conversation, Dr Smith did not mention that it was intended to re-evaluate the situation of the treatment of Hepatitis C patients in the Unit, in the next six months. Ms Taikato stated that she had the distinct understanding from the telephone conversation with Dr Smith that she and Mr Nakhle had been terminated from the program and there was no further prospect of treatment at the Unit.

49 In relation to the letter of 27 April 1997, Ms Taikato stated that she received that letter after the date on which she and Mr Nakhle had lodged their complaint with the Anti-Discrimination Board. The complaint was received at the Board on 24 October 1994 and was lodged on their behalf by the Co-Ordinator of the NSW Users and Aids Association. Ms Taikato stated that she did not respond to that letter, “Because I wasn’t going to put myself and my husband through what we had already been through. It was devastating.”

50 Dr Smith, in dealing with the events on and after 27 September 1993, described the situation at the Unit in relation to the treatment of patients with Hepatitis C, as dependent on the tests that were available to determine the possibility of patients carrying the virus. Prior to May 1993, assay tests for measuring Hepatitis C antibodies was not available and first became available to the Unit in May 1995. At that time, the test enabled the Unit to measure antibodies but not the actual virus itself. Experience had demonstrated that persons who had antibodies in their blood had a significant possibility of still having the virus in their blood but there were some persons who did not have the virus in their blood but still had the antibodies.

51 When Dr Smith wrote the letter on 11 May 1995 to Ms Taikato and Mr Nakhle, progress had been made in the assaying of the Hep C virus to the extent that research laboratories, but not the Centre at Westmead, could test whether persons with the Hepatitis C virus through their body’s immune mechanism had been able to clear the virus from their circulation. Such persons were regarded as being “infective”. Although this test was not available in the Centre in 1995, on a very limited basis the Centre could arrange for these tests to be conducted on couples who had Hepatitis C antibodies in their serum. Of the couples who were tested in this way, about 60% had the virus as well as the antibody but the other 40%were allowed, by the Centre, to proceed through the full IVF treatment including the freezing of fertilised eggs. Dr Smith stated that the intention of writing the letter of 11th May 1995 was to indicate to Ms Taikato and Mr Nakhle that they had not been forgotten and to keep them up to date and to assure them that there was hope that in due course something could be done to allow them to go through the treatment.

52 Dr Smith stated that eventually finances became available to the Centre which allowed it to purchase duplicate equipment so that it now has two freezing machines and separate storage tanks which are specifically designated for persons who test positive to the Hepatitis C virus. The Centre has also duplicated the laboratory’s bench top work space which eliminates the hazard of the virus and vapours being transmitted into the room and the scientists no longer use mouth pipetting and move the embryos from one dish to another by hand held pipetting. The Centre is now able to offer the full treatment to couples who have the Hepatitis C virus. This situation applied from 1997 and that was the reason for writing the letter of 15th April 1997 shortly after the arrival of Professor Peter Illingworth in the Centre. Dr Smith stated that the Unit no longer makes any distinction between persons with Hepatitis C and that the scientists now test to determine which patients should be treated using separate equipment.

PRELIMINARY ISSUE

53 Early in the inquiry, counsel for the Respondent submitted that the enquiry should proceed on the basis that the law applicable to the determination of the issues before the inquiry, was governed by the provisions of the Act as amended by the Anti-Discrimination (Amendment) Act 1994. These submissions were supported by Counsel for the Complainant. It was important for the Tribunal to rule on this question as the Amendment Act made significant changes, effective from 8 August 1994, to the provisions of the Act which applied to this complaint as it stood prior to that date. Notwithstanding the submissions from Counsel for both parties, the Tribunal ruled that consideration of the complaint by the Tribunal was governed by the provisions of the Act as they applied prior to the Amending Act. Because of the significance of this ruling, the reasons for the Tribunal’s views are now incorporated in this decision.

54 Counsel for the Respondent submitted that as the complaint was lodged at the office of Anti-Discrimination Board at a time subsequent to the commencement of the amending Act, the Act as amended in 1994, is the applicable provision that should be applied to this complaint.

55 It is the view of the Tribunal that in considering the reference in sub-section 1 of Section 88 of the Act, to the making of a complaint, it is necessary to consider all the words of the subsection

“a complaint in writing in respect of any contravention of this Act or the regulations which is alleged to have been committed by a person.”

56 The reference in the section to a complaint in respect of any contravention of the Act which is alleged to have been committed by a person, must refer to a contravention of the Act as it stood at the date on which it is alleged the contravention was committed. It seems to the Tribunal that it is not only inappropriate but also logically inconsistent to consider the commission of an unlawful act at a time and in relation to legislation as it stood subsequent to the date on which it is alleged that the contravention was committed.

57 The submission of the Respondent proceeded on the basis that the jurisdiction of the Tribunal was grounded on the making of a complaint to the Anti-Discrimination Board. In the letter of reference from the President of the Board to this Tribunal, the President stated that he was referring the complaint to the Tribunal under Section 94(1) of the Act. That Section refers to the requirement for the President to refer the complaint to the Tribunal together with a report.

58 The Tribunal is of the view that the linchpin for the inquiry by the Tribunal is the complaint as submitted to it by the President of the Board. When consideration is given in this inquiry to the actual complaint that was made and considered by the President, it is clear from the material in the report by the President and in particular by reference to the letter that he wrote to the Respondent advising of the receipt by him of the complaint, that the President considered the complaint in relation to “the legislation as it stood at the time the discrimination is alleged to have occurred.” With that letter to the Respondent, the President annexed a copy of Section 49A and 49K of the Act as it stood in 1993, which is the time at which it is alleged the contravention of the Act occurred. It is clear to the Tribunal that the President considered the complaint only by reference to that legislation and that when subsequently, he exercised his discretion to consider the complaint out of time under Section 89, he did not thereby give to the complaint any additional authority in terms of the legislation as it had been amended at the date on which he exercised that discretion.

59 The issue, in the view of the Tribunal is put beyond doubt by reference to the savings and transitional provisions contained in Schedule 1 of the Act and incorporated in the Anti-Discrimination (Amendment) Act 1994. Section 3 in Schedule 1 is headed “Operation of Amendments” and is in the following terms:

“3. Except as otherwise provided by this part:

An amendment made by the amending Act does not apply to or in respect of anything done or omitted to be done before the commencement of the amendment; and

This Act continues to apply to anything done or omitted before the commencement of such an amendment as if the amendment had not been made.”

60 For these reasons, the Tribunal has proceeded to consider this complaint on the basis that it is governed by the law as it stood in 1993, prior to the Anti-Discrimination (Amendment) Act 1994.

THE RELEVANT PROVISIONS OF THE ACT

61 The provisions of the Act in 1993 and up to 4 August 1994 were as follows:

The definitions of “physical impairment” and “physically handicapped person” are contained in section 4(1) of the Act, as follows::

“‘physical impairment’, in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment;”

“‘physically handicapped person’ means a person who, as a result of having a physical impairment to his body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his opportunities to enjoy a full and active life;”

Discrimination on the grounds of physical impairment is governed by Part 4A of the Act. The relevant provisions for the purposes of this complaint were:

“49A. (1) A person discriminates against a physically handicapped person on the ground of his physical impairment if, on the ground of –

(a) his physical impairment,

(b) …

(c) …

he treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person who is not a physically handicapped person.”

“49A (3) A person discriminates against a physically handicapped person on the ground of his physical impairment if he requires the physically handicapped person to comply with a requirement or condition –

(a) with which a substantially higher proportion of persons who are not physically handicapped comply or are able to comply;

(b) which is not reasonable having regard to the circumstances of the case; and

(c) with which the physically handicapped person does not or is not able to comply.”

“49K. (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a physically handicapped person on the ground of his physical impairment –

(a) by refusing to provide him with those goods and services; or

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

(2) Nothing in subsection (1) renders unlawful discrimination by a person against a physically handicapped person on the ground of his physical impairment if –

(a) it appeared to the firstmentioned person, on such grounds as, having regard to the circumstances of the case, it was reasonable to rely, that the physically handicapped person would be unable, because of his physical impairment, to use the goods or services concerned; or

(b) in respect of the provision of services, the firstmentioned person did all such things as were reasonably practicable, having regard to the circumstances of the case, to assist the physically handicapped person to use those services but the physically handicapped person was unable, because of his physical impairment, to use those services.”

JOINT COMPLAINT

62 Reference has been made to the unusual circumstance of this complaint which is made jointly by Ms Taikato and Mr Nakhle. The evidence demonstrates that although the general background to the complaints was common to each Complainant, the greatest proportion of the circumstances related to and directly affected Ms Taikato. The appropriate course, in the view of the Tribunal, is to proceed to examine the complaint of Ms Taikato and to leave an examination of the complaint of Mr Nakhle, to be dealt with subsequent to the conclusions reached in relation to Ms Taikato’s claim.

PHYSICAL IMPAIRMENT AND PHYSICALLY HANDICAPPED PERSON

63 It was submitted by the Respondent that the circumstances relating to Ms Taikato did not bring her within the definition of physical impairment and physically handicapped person.

64 It is first necessary to determine whether Ms Taikato suffered physical impairment within the terms of the definition in Section 4(1) of the Act. Two aspects of that definition are critical, firstly, whether in the case of Ms Taikato her condition was an illness or injury and secondly, whether, if it was an illness or injury, she suffered from a defect or disturbance in the normal structure and functioning of her body.

65 Ms Taikato carried the Hepatitis B and Hepatitis C virus and it is the latter virus which was of concern to the Centre. That concern stemmed from the inherent quality of the eggs produced by a female who suffered from Hepatitis C. Professor Anthony Cunningham, the Director of the Westmead Institutes of Health Research at the Westmead Hospital and Professor of Research Medicine and Deputy Director of the Centre for Infectious Diseases Microbiology at the University of Sydney, described the nature of this inherent quality of an egg from a Hepatitis C patient as

“when an egg is actually taken from the ovary it is taken by needle per vaginum …. And there is puncture of the little blebs or bubbles on the surface of the ovary that contained the egg. Now when this is done there is bleeding and the egg actually when it is sucked into the tube for later insemination is actually surrounded by blood … but the point is that the egg has been surrounded by blood in which Hepatitis C lives, and there is absolutely no argument about the concentration of Hepatitis C in blood. … It is clearly present in blood and therefore there is a risk of a virus attaching itself and remaining attached to that embryo.”

66 In describing Hepatitis C, Professor Cunningham stated that it can affect other organs but in terms of its main manifestation as disease, it is mostly through the liver. He stated that if a person gets acute Hepatitis C it is debilitating and described it as more debilitating than long term influenza. He stated that in the case of chronic Hepatitis, it also becomes debilitating as it progresses.

67 Professor Cunningham had not examined Ms Taikato and did not have knowledge of her clinical history and he was unable therefore to relate specifically to Ms Taikato’s degree of infection. He described the way in which Hepatitis can affect persons in their every day lives, by saying that there is a whole spectrum of symptoms that develop as the liver diseases become worse which can be anything from swollen feet to bruising at later stages but tiredness is the concern and when the disease is advanced, the tiredness becomes severe and affects a person's normal activities.

68 Evidence in relation to Ms Taikato included a letter from Professor G Farrell, the Professor in Hepatic Medicine and Head of the Department of Gastroenterology and Hepatology for Westmead Hospital, on 8 March 1993, written to Dr Smith. Professor Farrell describes Ms Taikato as having chronic active Hepatitis and that her liver disease is due mainly to Hepatitis C infection. He stated that her recent liver tests are a little worse than before and that her liver biopsy two and a half years ago showed quite sever chronic Hepatitis with bridging fibrosis not amounting to cirrhosis. He stated that the amount of inflammation in her liver could be contributing to infertility.

69 Dr Smith in his evidence stated that he was influenced in his concerns about the cryo preserving of eggs from Ms Taikato by the opinion expressed to him by Professor Cunningham about the quality of the eggs obtained from Ms Taikato being contaminated with the Hepatitis C virus.

70 Ms Taikato gave evidence that after she contacted Hepatitis C sometime in 1990 or 1991, she was not able to do her housework as she had been able to because she wasn’t feeling well and that she was lethargic and felt like vomiting and that she did vomit at times, and that she had no energy. She stated that she was not able to thoroughly do her housework or to mow the lawns or to ride a bike – all activities which she was able to participate in fully before she contracted the virus.

71 In examining the application of the definition of physical impairment to Ms Taikato, there is no evidence to show that her condition related to an injury and it is necessary then to consider whether her condition was an illness. The term “illness” is defined in the Macquarie Dictionary (Second Edition – 1991) as “state of bad health; sickness.” The Dictionary also defines “health” as “soundness of body; freedom from disease or ailment.” Sickness is defined as “a particular disease or malady.” Professor Cunningham describes the condition of a person with Hepatitis C as a disease and in Ms Taikato’s case, being an acute sufferer because of her liver condition, Professor Cunningham described that state of her condition as a debilitating condition. In these circumstances, the Tribunal considers that Ms Taikato’s condition arising from her status as a Hepatitis C sufferer, was an illness.

72 It is then necessary to consider whether Ms Taikato suffered a defect or disturbance in the normal structure and functioning of her body. Again, the Tribunal is of the view that the evidence establishes that because of the acute nature of her condition and the damage suffered to her liver, that she had a defect in the normal structure of her body, and applying the decisions on the interpretation of the phrase “normal structure and functioning” as a hendiadys – a single idea expressed in two words joined by the conjunction “and”, that such a defect was in Ms Taikato’s case, a defect in the normal structure and functioning of her body. (See Kit v Tourism Commission and Others (1987(EOC92-196)) at 76880 and 76881; Bogie v University of Western Sydney (1990(EOC92-313 at 78140); Hurley v Electricity Commission of New South Wales (1992 (EOC92-438 at 79100)).

73 It is then necessary to consider whether Ms Taikato, as a result of her physical impairment, and having regard to any community attitudes relating to persons having that impairment and to the physical environment, Ms Taikato is limited in her opportunities to enjoy a full and active life. No evidence was put before the Tribunal by either party in relation to community attitudes or to the physical environment as they apply to persons having the Hepatitis C infection. The evidence establishes, in the view of the Tribunal, that Ms Taikato did in fact have limited enjoyment of a full and active life. She gave evidence about the adverse impacts on her of her sense of lethargy and sickness. In addition, the evidence of Professor Cunningham demonstrates that a female with the Hepatitis C virus has the inherent disability of the blood attaching to the eggs obtained from her ovaries being contaminated with the Hepatitis C virus. There is also the evidence of Professor Farrell that the inflammation of her liver could be contributing to her infertility. All this evidence points to a limitation in her opportunities to enjoy a full and active life. As was stated in Bogie at 78143, the words “limitation to a person’s opportunity to enjoy a full and active life” should be given a broad operation. “Thus any limitation in his or her opportunities will suffice, unless, perhaps, it is a limitation so trivial as to deny it the quality of a real (as distinct from a virtually insignificant) limitation.” As was further stated in that decision, the matter must be assessed objectively. A similar approach was taken in Holdaway v Qantas Airways Limited (1992(EOC92-395 at 78809), “apart from these specific matters, the evidence relating to the degree of vigilance and self discipline, as well as the constant testing and medication procedures, required of the complainant because of his insulin-dependent diabetes, establishes that his impairment is one which is ever present in his mind and which constantly dictates his behaviour throughout his every day life.” Similar comments would be appropriate to describe the constant reminder on a day to day basis to Ms Taikato of her condition.

74 In the view of the Tribunal, the application of these principles to the circumstances relating to Ms Taikato requires the Tribunal to find that Ms Taikato is a person who is physically handicapped within the meaning of that definition in the Act.

UNLAWFUL DISCRIMINATION

75 To determine whether the Respondent discriminated against Ms Taikato on the ground of her physical impairment, the Complainant sought to establish that the Respondent discriminated against her, directly under Section 49A(1) of the Act, and indirectly under Section 49A(3) of the Act. It is necessary to examine each of these contentions.

Direct Discrimination

76 Counsel for the Complainant stated the proposition for the direct discrimination claim in the broadest possible form. He contended that because of her physical impairment, Ms Taikato was treated less favourably because she was not given the opportunity to be provided with the freezing process of her embryos, whereas persons who were not infected by Hepatitis C at the material time were allowed to have their embryos preserved.

77 A detailed examination of the material before the inquiry requires that the proposition so stated on behalf of the Complainant should be refined and the circumstances justify the description of the direct discrimination allegations of Ms Taikato as:

The Respondent discriminated against Ms Taikato, the person physically handicapped, by allowing her to participate in the IVF program of the Respondent and in particular the GIFT procedure in that program, on terms less favourable to the terms on which a person who did not suffer the physical handicap, were allowed to participate in the program and that procedure. The less favourable terms being:

1. Ms Taikato would not be permitted to have fertilised eggs preserved by the process of cryo preserving (by freezing and storage), and

2. Ms Taikato would not be kept informed of the extent and nature of the treatment in which she was allowed to participate.

78 In the view of the Tribunal, the evidence supports both parts of this proposition.

79 The evidence shows that the Centre was offering to Ms Taikato and that Ms Taikato accepted, that the procedure that she would undergo in the operating theatre on 18 August 1993 was the GIFT procedure which referred to the transfer of her eggs, fertilised in the operating theatre, into her fallopian tubes. What occurred in the operating theatre when it was discovered that her fallopian tubes were blocked and therefore unable to receive the fertilised eggs, was a practice that is normally undertaken in these circumstances according to Dr Smith, and her remaining eggs were transferred to the laboratory where the scientists mixed the egg with her husband’s sperm and obtained seven fertilised eggs. Ms Taikato was allowed to return after the procedure in the operating theatre on 18 August and was told that the remaining eggs were being fertilised with a view to her returning to have three of the eggs transferred to her uterus at a later date. She was telephoned by the laboratory scientist on 19 August and told that seven of her eggs had successfully fertilised and she was requested to return on 20 August for the transfer of three eggs to her uterus.

80 At no time during this period was she consulted about her agreement to this process nor was she told of the intentions of Dr Smith and the scientist of their decision not to allow the four remaining fertilised eggs to be cryo preserved.

81 Dr Smith agrees that he had formed the view, even before Ms Taikato was admitted into the Centre, following discussions with the scientists in the Centre and discussions that he had with Professor Cunningham, that he would not risk the contamination of the Hepatitis C virus which would be attached to Ms Taikato’s eggs being transmitted either to the scientists in the laboratory or to the eggs of other patients stored in the laboratory, by allowing those eggs to go through the process of cryo preserving.

82 Dr Smith acknowledged that he did not communicate this intention to Ms Taikato or to Mr Nakhle at any time during the preliminary stages of the preparation for the procedure or during the procedure itself. The first that Ms Taikato knew that her remaining four eggs had not been preserved was on 20th August 1993 when she was told by the scientist, Dr Kossakowski when she was going through the process of the transfer of the three surviving eggs. Dr Kossakowski told her according to Ms Taikato, that the remaining four embryos had been destroyed. It is unlikely that the phrase “destroyed” was used. The evidence shows that those four remaining embryos had not been preserved.

83 The Tribunal is also satisfied that the evidence supports that Dr Smith had not conveyed his intention not to cryo preserve Ms Taikato’s fertilised eggs, to those members of the staff of the Centre who took Ms Taikato and Mr Nakhle through the normal procedure of signing consent forms prior to the GIFT procedure.

84 In the case of participants in the program who were going through the GIFT procedure, it was the normal practice for a Doctor in the Centre to spend time with the participants and explain to them the procedures in which they were about to participate. The Centre had produced standard forms for this purpose. In the normal case, it would be anticipated that the GIFT procedure would include, if there were excess fertilised eggs obtained, the transfer of those eggs to the laboratory where they would be cryo preserved. The forms which were signed by the patient, were consistent with that practice and one of the main purposes of the forms was to have the patient indicate her willingness to have excess fertilised eggs preserved or alternatively, disposed of immediately or donated at the discretion of the Unit. If the patient elected to have the alternative of cryo preserving, then the second form consenting to freeze/thawing was required to be completed by the patient. This form provided for the patient to confirm their intention concerning the continuing storage and management of the fertilised eggs for two years after the freezing process and thereafter annually and provided for the handling of the eggs in the event of the death of the patient or the expiry of a period of ten years.

85 Ms Taikato stated that she and Mr Nakhle signed both forms in the presence of Dr Matthews who she mistook for a nurse. Ms Taikato and Mr Nakhle both stated that Dr Matthews did not advise them that there was an intention not to cryo preserve any fertilised eggs of theirs. The signing of these two forms would be inconsistent with the giving of such advice. Following the interview with Dr Matthews, Ms Taikato and Mr Nakhle then spent time with a Nursing Sister who explained to them, as is the normal practice of the Centre, the preliminary requirements relating to the GIFT operation. Again, Ms Taikato and Mr Nakhle both state that the Nursing Sister did not mention any intention not to cryo preserve their excess fertilised eggs.

86 It is understandable in these circumstances, that Ms Taikato and Mr Nakhle, on 18 August 1993, when they went to the Centre for the purpose of Ms Taikato undertaking the GIFT operation, expected that any excess eggs which were harvested would be dealt with in the usual way by the Centre and would go through the process of cryo preservation.

87 Dr Smith stated that there was no issue of seeking to obtain the consent of Ms Taikato and Mr Nakhle to the non-preservation of the surviving fertilised eggs, between 18 August and 20 August 1993, because there was no option to offer them. He stated that in principle, the decision not to freeze the eggs was taken even before the treatment was started. He explained that the actual decision not to preserve the four remaining eggs of Ms Taikato was made on the day the eggs were collected, ie, on 18 August 1993.

88 On the afternoon of 18 August 1993, Dr Kossakowski telephoned Dr Smith to advise him that there were still four surviving fertilised embryos and to remind him of the decision that the risk could not be taken of freezing those embryos. Dr Smith reaffirmed to Dr Kossakowski that the decision had been taken previously and directed him to act accordingly. It is not clear from the evidence whether Dr Smith in his telephone conversation that evening with Ms Taikato advised her then that the four remaining embryos were not to be cryo preserved or whether, according to Ms Taikato’s evidence, she was not told until she went back to the Hospital on 20 August for the purpose of a transfer to her uterus of the other three fertilised eggs

89 It is clear from Dr Smith’s evidence that he would not have discussed or sought her consent to the non cryo preservation of the four eggs, as he stated that at the time he spoke to her the decision was irreversible. Dr Smith also agreed that over the two day period between 18 August 1993 and 20 August 1993, Ms Taikato’s status was that she had passed from the GIFT procedure into the IVF program.

90 The distress of Ms Taikato in the knowledge that having gone through the procedures on 18 August 1993 to 20 August 1993 her remaining fertilised eggs were not cryo preserved, is exacerbated by the evidence of Dr Smith on the failure of the Centre to inform Ms Taikato and Mr Nakhle of the risks of contamination about which the Centre had such deep concerns. Dr Smith acknowledges that he did not advise Ms Taikato of those risks and the concerns of the Centre until a telephone conversation with her after she had returned home on 20 August 1993.

91 He agreed that it would be significant for patients in the IVF program to be informed of the issue of the contamination of laboratory equipment and the issue of infection between frozen embryos, because it affects the outcome of the reason for the patients participating in the program, as the dealing by the Centre with the embryos is a very important part of the IVF treatment.

92 The responsibility to keep patients informed is confirmed in the code of practice issued by the Reproduction Technology Accreditation Committee to units using IVF related reproductive technologies, in November 1992. Paragraph 2.4 of that Code states,

“Information for patients should include comprehensive details about treatment options and the treatment regime …. It is the medical practitioner’s overall duty and responsibility to ensure that voluntary and informed consent is obtained prior to the commencement of any treatment. … Information given should be comprehensible to patients. At times the educational background of patients might make it essential for a more detailed explanation than usual. …”

93 Dr Smith acknowledged that he was aware of that Code and he was aware about the importance of informed decision making by patients. When questioned as to why when the decision was made not to cryo preserve Ms Taikato’s eggs that that guide line was not followed, Dr Smith responded, “There was no decision for them to make.”

94 The Tribunal is satisfied that the evidence establishes that Ms Taikato was treated less favourably by the Respondent when compared to the manner in which the Centre treated persons who did not suffer from Hepatitis C, both by not preserving her fertilised eggs following the procedure applied to her between 18 August and 20 August 1993, and by not keeping her informed of the extent and nature of the limitations of the procedure that was intended to be applied to her.

95 In order for the less favourable treatment suffered by Ms Taikato to be discrimination within the terms of Section 49A (1), it is also necessary to establish that the less favourable treatment occurred in the same circumstances or in circumstances which are not materially different to the circumstances in which the Centre treated persons who were not suffering from Hepatitis C. The Respondent has submitted that the circumstances relating to Ms Taikato were materially different from the circumstances which applied to persons who are not suffering from that virus. The material difference being the circumstance that the eggs that were obtained from Ms Taikato were, for the reasons described by Professor Cunningham, likely to be contaminated by the surrounding blood with the virus. That contention, if apt, would prevent the necessary comparison essential to support the finding of discrimination under the Section.

96 In the view of the Tribunal, the contentions of the Respondent in this respect, are not correct. Although on the first blush, the proposition seems to have validity in relation to the first leg of the Complainant’s contention, ie, that the less favourable treatment related to the failure to cryo preserve the fertilised eggs of Ms Taikato, it would not be applicable to the other part of the contention that the less favourable treatment related to the failure to properly inform Ms Taikato of the nature of the treatment to which she would be subjected. That latter part of the Complainant’s case is not dependent upon a comparison being made in relation to the infected status of the eggs obtained from Ms Taikato. Although Dr Smith stated that there was no option available to the Centre other than the decision not to cryo preserve her eggs, this position does not excuse the Centre's failure to advise Ms Taikato of that decision and to explain to her the reasons for it or the subsequent action of the Centre in taking Ms Taikato and Mr Nakhle through the normal process of completing the forms relevant to preservation of eggs. These failures on the part of the Centre occurred irrespective of the actual status of Ms Taikato’s eggs. Although it could be said that Ms Taikato potentially would produce eggs which were infected by the Hepatitis C virus, and that she was different from other patients and therefore not entitled to be kept informed of decisions taken relevant to her participation in the IVF program at the Centre, is not an argument that can be sustained in the face of the decision to allow her to continue to participate in the IVF program.

97 There is a further reason, in the view of the Tribunal, for rejecting the argument of the Respondent, that a comparison is not appropriate to be made between Ms Taikato and other patients who are not affected by Hepatitis C, because of the infected nature of Ms Taikato’s eggs. To accept such a proposition would be tantamount to accepting that in relation to handicapped persons, they could never qualify under Section 49A(1) to bring a claim of discrimination because in each case the basis of their impairment would defeat their claim. They would fail on the comparison required by this Section, for their circumstances to be similar to the circumstances of a non-handicapped person. Clearly such a result is absurd. The position was referred to by Samuels J A in Jamal v Secretary Department of Health 1998 NSWLR 252 at 264. The Court of Appeal was considering the application of Section 49A(1) of the Act to a physically handicapped medical practitioner. His Honour said:

“Part IVA deals with discrimination on the ground of physical impairment. Hence its provisions assume that the physically handicapped candidate for employment is in all respects other than her physical impairment, qualified for the job. Otherwise it would be impossible for the employer to treat her less favourably on the ground of her physical impairment, than another qualified person who was not fully handicapped. Hence the phrase, “In the same circumstances, or in circumstances which are not materially different” must be read as containing the same assumption.”

98 The Tribunal is of the view that the Complainant has substantiated that she has been discriminated against by the Respondent, in the terms of Section 49A(1) of the Act, in that she was subjected to less favourable treatment, on the grounds of her physical handicap, in both the circumstances outlined earlier.

INDIRECT DISCRIMINATION

99 The Complainant contends that the Respondent has also discriminated against her, indirectly, on the ground of her physical handicap, as the Respondent required her to comply with the following conditions, which a substantially higher proportion of persons who are not physically handicapped comply or are able to comply; which is not reasonable in the circumstances; and which Ms Taikato was not able to comply:

1. That Ms Taikato not be allowed back into the IVF program until she had passed a test which established that she was not infected actively by the Hepatitis C virus.

2. That Ms Taikato not be allowed back into the IVF program at the Centre until the Centre had in place a certain policy or protocol to enable the Unit to cryo preserve oocytes without the risk of contamination to staff or to the cryo preserved oocytes of other persons stored in the Centre.

100 The evidence establishes that after 20 August 1993, the Centre had decided that it could not continue to provide further treatment to Ms Taikato until it was able to establish by assay tests that she not actively carrying the Hepatitis C virus. This is clear, from the evidence of Dr Smith and from the correspondence and Minutes of the Meetings at the Centre which are set out earlier in the background information to this decision.

101 It is not as clear that the Centre had formulated a requirement that it had to have in place a protocol to enable separate preservation of fertilised eggs infected or potentially infected with the Hepatitis C virus, before allowing Ms Taikato back into the program. On balance, the Tribunal accepts that the effect of what took place after 20 August 1993 and until the 27 April 1977 in relation to Ms Taikato, was that the Centre had determined that it would not accept Ms Taikato into the program until it was able effectively to treat her fertilised eggs in segregation from the eggs of other patients. All elements required to be established under Section 49A(3) of the Act have been established other than the issue of whether the conditions that were imposed for Ms Taikato to be re-admitted into the IVF program at the Centre, were reasonable. In the view of the Tribunal, the Complainant has the onus of satisfying the Tribunal that the conditions, in the circumstances, were not reasonable.

102 The requirement of reasonableness in a provision of the nature of Section 49A(3), was examined by the Court of Appeal in the Federal Court of Australia in the Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Anor 150ALR1, where the Court was considering Section 5(2)(b) of the Sex Discrimination Act (Commonwealth) 1984 which is in terms similar to section 49A(3) of the Act. The Court decided that in determining whether conduct was not reasonable, so that the conduct would constitute indirect discrimination, the following principles were applicable:

• The test is an objective one, in which the nature and extent of the discriminatory effect is weighed against the reasons advanced in favour of the requirement or condition and all the circumstances of the case are taken into account;
• Because the non-reasonableness of the requirement or condition is itself part of the definition of discrimination (the section) is to be applied according to its terms and not influenced by any concept of discrimination existing outside the statutory definition;
• It would be erroneous to assume that any difference of treatment between the Complainants and other employees is prime face discriminatory and therefore unreasonable. The Complainants bear the onus of establishing that the condition or requirement is not reasonable in the circumstances of the case;
• Reasonableness (or non-reasonableness) for the purposes of the Section, is a question of fact, but can only be determined by weighing all relevant factors; and
• The question is not whether the decision to impose the condition or requirement was the “correct” one, but whether the requirement is not reasonable having regard to the circumstances of the case.

103 The Court also held that when considering whether action claimed to constitute indirect discrimination was not reasonable, it was essential to consider the grounds relied on by the alleged discriminator to support the reasonableness of the impugned condition or requirement.

104 In the circumstances of this complaint, the Respondent refers to the risk associated with the treatment of the eggs of Ms Taikato in the laboratory at the Centre where the contamination arising from the eggs could infect the members of the staff of the Centre in the laboratory, and, if the eggs were cryo preserved in the storage tanks in the straws where it is possible for the straws to fragment or in other instances for material in the straw containing the contaminated egg to be set loose, that the eggs of other patients at the Centre would be contaminated. It was submitted that in these circumstances the imposition of conditions of this nature, was reasonable.

105 If such conditions had been imposed on Ms Taikato prior to her acceptance into the IVF program at the Centre, the argument for the reasonableness of the conditions would be strong. It is a different proposition to impose such conditions as a pre-requisite to allowing Ms Taikato to continue her participation in the IVF program at the Centre.

106 Given the circumstances which so adversely affected Ms Taikato by 20th August 1993, which the Tribunal has found discriminated against her, an examination is required as to whether the Centre was justified in excluding her at that point without apparently making any effort to find ways of accommodating her special situation. Her special situation being that the medical tests that were able to be conducted on her at that time were not capable of excluding her from being an active Hepatitis C carrier. The Centre would be required to examine her situation on the basis that she could not be eliminated as an active Hepatitis C carrier and that her eggs may be contaminated by that virus. What steps could be taken by the Centre to accommodate Ms Taikato in the IVF program without risk to its staff and to the eggs stored in its laboratory?

107 In examining these risks they, in practical terms, translate to an examination of several situations. Firstly, the method adopted by the scientists for selecting eggs for fertilisation by mouth pipetting, presented a danger of ingesting contaminated material. Professor Cunningham however states that that was an antiquated practice and that hand pipetting was the practice that was available and subsequently has been adopted in his laboratory. The reason why it was not adopted in the laboratory was, as stated by Dr Smith, that mouth pipetting was considered a more accurate method for dealing with the selection of eggs. Secondly, there was the risk described by Professor Cunningham of transmission of infection in the air. By April 1997 the Centre had overcome this problem by installing a second ventilated work station. No evidence was given as the cost of installing a second work station. Thirdly, there was the lack of a second set of equipment and storage tank for segregating and storing separately the infected eggs of a Hepatitis C carrier. By April 1997 the Centre had established separate equipment and a separate storage tank and was able to deal satisfactorily with contaminated eggs. In cross-examination, Dr Smith said that the Centre was unable to purchase separate equipment in 1993 because of the cost and that a separate storage tank would cost approximately $15,000.00 and that other equipment would need to be imported. That is the status of the evidence on the question of reasonableness.

108 It is necessary for the Tribunal to determine in the circumstances relating to Ms Taikato, and not as a general proposition of reasonableness dealing generally with the risks associated with the handling of infected embryos, whether the conditions imposed on Ms Taikato after August 1993 by the Centre, were reasonable.

109 The Complainant bears the onus of satisfying the Tribunal that the conditions were not reasonable. Because there was no evidence led by the Complainant which would satisfy the Tribunal as to whether the Centre could in August 1993 and within a reasonable time thereafter, without undue imposition on its resources, have established the necessary protocol in its laboratory to handle infected eggs or whether at that time there were tests available elsewhere, other than through the Centre, to establish whether Ms Taikato was an active Hepatitis C carrier, on balance, the Tribunal considers that the Complainant has failed to discharge this onus. The Tribunal accordingly is not satisfied that the Complainant, Ms Taikato, has substantiated that the Respondent has indirectly discriminated against her within the provisions of Section 49A(3) of the Act.

Discrimination on the Ground of Disability

110 It is also necessary in considering whether discrimination has occurred within the provisions of section 49A(1) of the Act, to determine whether the less favourable treatment suffered by the Complainant was 'on the ground of' her physical impairment. The appropriate test requires a causal connection between the less favourable treatment and the Complainant's impairment.

111 In the circumstances relating to the finding by the Tribunal that the Complainant has been unfairly treated, that treatment of the Complainant stems from her physical impairment. If she did not actively suffer from the Hepatitis C virus she would not have been excluded from the complete IVF program at the Centre; and she would not have suffered from the failure of the Centre to inform her of its decision to withhold that choice from her.

112 The intentions of the Respondent, and the reasons of its staff, for taking the courses of action which they did take, is not relevant, if when examined objectively, the effect of those actions caused the Complainant to be treated less favourably and were sufficiently connected to her impairment. The Tribunal finds that the less favourable treatment suffered by the Complainant occurred as a result of, and was causally connected with, her physical impairment.

UNLAWFUL DISCRIMINATION

113 As the Tribunal has found that the Respondent has discriminated against the Complainant under Section 49A(1) of the Act, it is now necessary to consider whether within the terms of Section 49K of the Act that discrimination was unlawful.

114 It follows, in the view of the Tribunal, from its finding in relation to the discrimination under Section 49A(1) of the Act, that it was unlawful by virtue of Section 49K(1)(b), for the Respondent to discriminate against Ms Taikato on the grounds of her physical impairment in the terms on which the Centre provided her with the services of the IVF Program. As stated earlier in this decision, the less favourable treatment which constituted the direct discrimination related to the terms on which Ms Taikato was permitted to participate in the program and the terms on which she was informed about her participation in the program.

Exclusion of Respondent from liability

115 The Respondent has submitted that the discrimination is not unlawful by virtue of sub-section 2 of Section 49K of the Act and the Respondent relies on both sub-paragraph (a) and sub-paragraph (b) of Section 49K(2).

116 In considering the application of those two sub-paragraphs, the Respondent has submitted that the Tribunal should apply the principles stated by the Federal Court of Appeal in Commonwealth of Australia v Human Rights and Equal Opportunity Commission and Anor 152ALR182 where the court considered the principles to be applied to the exception in Section 15(4) of the Disability Discrimination Act (Commonwealth) 1992 the relevant parts of which are in the following terms:

“Neither paragraphs 1(b) nor 2(c) renders unlawful discrimination by an employer against the person on the ground of the person’s disability, if taking into account the person’s past training, qualifications and experience relevant to the particular employment, and if the person is already employed by the employer, the person’s performance as an employee, and all other relevant factors that is reasonable to take into account, the person because of his or her disability:

(a) would be unable to carry out the inherent requirements of the particular employment”

117 The case related to a soldier with positive HIV and his discharge from the Australian Defence Forces. Burchett J said,

“As the illustrations I have given show, a narrow construction of Section 15(4) would have serious consequences both for employers and for third persons. I do not think Parliament intended the Section to be construed so as to have those consequences. It is to be borne in mind that the decision whether a person would be unable to carry out the inherent requirements of the particular employment must be reached taking into account “all … relevant factors that it is reasonable to take into account.” Where work involves interaction or contact with others, this will generally be a relevant factor that is reasonable to take into account. Another such factor may be the existence of a liability in a particular employment to the arising of a known type of emergency."

118 Later His Honour said:

“Where remedial legislation contains exemptions designed to strike a careful and practical balance between competing community interest, a Court which distorts that balance in the name of furthering the remedy risks usurping a political role, and in so doing, frustrating the will of Parliament. The Disability Discrimination Act was intended to relieve the deprivation and humiliation that too often accompany misfortune but not at the cost of creating further misfortune. A line was drawn at Section 15(4) to protect, at least, employers and fellow employees which might be affected by a disabled person’s inability to carry out the inherent requirements of an employment. The legislative choice as regard where that line was to be drawn must be respected.”

119 The Tribunal now proceeds to consider the application of Section 49K(2), without giving that sub-section a narrow construction and by examining, objectively, the circumstances of the case.

120 Sub-paragraph (a) of Section 49K(2) requires a consideration of whether it was reasonable in the circumstances of this case, for the Centre to rely on the grounds on which it did rely, that Ms Taikato would be unable because of her active Hepatitis C to use the services offered to her by the Centre.

121 The services which the Centre offered to the Complainant, was the program of IVF treatment provided to patients at the Centre. The Centre allowed her to be admitted to its operating theatre for the purpose of carrying out the Gift procedure, being a segment of its IVF program, and when it was discovered during that procedure that she was not able to complete that procedure, she was admitted to the further segment of the IVF Program, but in her situation without the final stage of the cryo preservation of her fertilised eggs. Ms Taikato was not informed of this restriction to her participation in the IVF services offered to her by the Centre.

122 In this context 'the services' must be considered in a holoistic fashion and be not limited to the machinery and mechanics of the GIFT and IVF programs as medical procedures but including the counselling and consent procedures and documents.

123 The four fertilised eggs obtained from Ms Taikato were capable of being cryo preserved up to the time when, as a result of the action taken by the staff of Centre, they were not preserved. The failure by the Centre to complete this final stage in the IVF program for Ms Taikato, was the result of the limitations in the facilities of the Centre, at that time, for the handling of fertilised eggs potentially infected with the Hepatitis C virus. This limitation did not relate to the inability of the Complainant to use those facilities or to participate in the full IVF program offered to her by the Centre, and which the Centre led her to believe would be provided to her.

124 This is not a case where the physically handicapped person is unable to use the services offered by the discriminator.

125 In the circumstances, it was not reasonable for the Centre to rely on the limitations in the use of its services by Ms Taikato, to justify its decision that she would be unable to use the services offered to her by the Centre.

126 Sub-section (a) in the circumstances does not apply to except from being unlawful the discrimination to which the Tribunal has found Ms Taikato was subjected by the Centre.

127 In relation to the application of the sub-paragraph (b) of Section 49K(2), the paragraph requires consideration of whether Ms Taikato was unable because of her Hepatitis C status to participate in the program. It is only if the physically handicapped person is unable to use the services that the paragraph requires consideration of whether the Centre took all reasonable steps to assist her to do so. These aspects have to be considered in the light of the finding that there has been discrimination by the Centre. On the view contended for by the Respondent, the Tribunal should take a broad approach and examine objectively whether in the circumstances the Centre had done whatever was reasonably practicable to assist Ms Taikato to participate in the IVF program.

128 Firstly, in the application of the paragraph, the Tribunal does not accept that in taking a broad and objective view of the application of the Section that the Tribunal is entitled to ignore the words “that the physically handicapped person was unable, because of his physical impairment, to use those services.” Ms Taikato was able to participate in the program. She did participate in the program although she was prevented, by the Centre, from fully participating in the total program because the Centre was not in a position, because of its practices and its lack of the necessary equipment, to deal with her infected eggs in a manner that would not risk contamination to its staff and other non-effected embryos of other patients.

129 It cannot be said, in the view of the Tribunal, that Ms Taikato was unable to participate in the program. She could have participated in the complete program including the freezing and preservation of her fertilised eggs if the Centre had changed its process of pipetting from mouth to the hand method, had installed the necessary covers over its work bench and had provided separate equipment for freezing and storing the frozen embryos.

130 The discrimination that the Tribunal has found that the Centre subjected Ms Taikato, was in part reflective of its failure to allow her to complete the full program. However, the other part of the discrimination was the failure of the Centre to inform her at all relevant times, in accordance with established guidelines and in accordance with what the Director of the Centre regarded as appropriate, as to the limitations that applied to her participation at the beginning of the program and throughout her participation in the program.

131 Ms Taikato participated fully in the program, and was considered able to do so, up to the point where on 20 August 1993 her remaining four fertilised embryos were allowed to fragment and were not preserved. The action taken by the Centre at that time prevented her from continuing to participate in all stages of the IVF program.

132 In these circumstances, the Tribunal considers that Ms Taikato was not unable to use the full services of the IVF program. She was prevented from doing so by the action taken by the Centre.

133 Further, it is necessary to consider whether the Centre did all things that were reasonably practicable having regard to the circumstances of the situation to assist Ms Taikato to use the full services of the Centre. This requires consideration of the steps that could have been taken by the Centre to enable the four remaining fertilised embryos of Ms Taikato to be cryo preserved. The evidence of the Respondent, through Dr Smith, was that as at 20 August 1993, the Centre did not have time to import the necessary equipment nor did it have the financial resources to afford to purchase the necessary equipment to allow Ms Taikato’s eggs to be cryo preserved. That is the only evidence produced by the Respondent to support the onus of satisfying the Tribunal that the Centre had taken all reasonable practical steps to assist Ms Taikato to have the full services provided to her.

134 Examining the matter broadly and objectively, the Tribunal is not satisfied that the Centre did all such things as was reasonably practicable to assist Ms Taikato in the circumstances. Ms Taikato had been a patient at the Clinic at which Dr Smith was Director for many months prior to her attending the Centre in May 1993 for the IVF program. Dr Smith would have been aware of the potential for Ms Taikato to enter the IVF program at least in May 1993 and most probably at a time well before that date. Ms Taikato signed the consent form for the operation on 13th August 1993. It was not as though the Centre was taken by surprise on 19th August 1993 that it had to face the question of preserving the fertilised eggs of Ms Taikato. Although the expectation of the operation for the GIFT process was to transfer fertilised eggs of Ms Taikato into her fallopian tubes, it was not unusual, according to Dr Smith, that a patient going through that process when it was found that the fallopian tubes were unable to accept the transfer of the eggs, to proceed to the full IVF program including the ultimate cryo preserving of eggs of the patient. Ms Taikato was the first patient with Hepatitis C at the Centre. It was not unreasonable for the Centre to give her situation special attention and to anticipate her needs including the likelihood that following the GIFT process Ms Taikato, like other patients in similar circumstances, would move into the further IVF program. The Unit could have anticipated, if it did not have the necessary resources, the acquisition of the necessary equipment to support the segregation of Ms Taikato’s eggs in the cryo preserving process.

135 In relation to the decision of the Centre not to cryo preserve the four remaining eggs of Ms Taikato, the Centre could have assisted her by informing her of its decision. Further, the Centre could have assisted her by limiting her choice as to the number of eggs to be fertilised or allowing her to make that choice. Dr Smith stated that persons with religious objections to the cryo preserving of fertilised eggs are given the choice of the number of eggs to be fertilised.

136 The Tribunal has determined that in considering these circumstances and having regard to the nature of the discrimination to which Ms Taikato has been subjected, the Respondent has not done all such things as were reasonably practicable to assist her to use the full services of the IVF program. No evidence was put before the Tribunal as to the financial constraints on the Centre at the time in terms of acquiring additional equipment except Dr Smith stated that the Centre did not have the money to afford to pay the $15,000.00 for the separate storage facility. No supporting evidence for this statement was provided to the Tribunal. No evidence was provided to support the statement that the difficulties which it was suggested would arise in importing at short notice the freezing equipment. The Tribunal considers that there was adequate notice to the Centre of the requirement for that equipment.

137 The acquisition of additional equipment to accommodate the special needs of persons such as Ms Taikato, was not the only way in which the Centre could have assisted her in a reasonable practical manner. The Centre should have provided her with the choices made available to other patients for whom the cryo preservation of eggs was not an option.

138 In the view of the Tribunal, the Respondent has not discharged the onus of satisfying it that in the circumstances the Centre did all such things as were reasonably practicable to assist Ms Taikato in the use of the IVF Program.

139 The Tribunal concludes that the discrimination to which Ms Taikato was subjected by the Centre was unlawful and that in the terms of sub-section 2 of Section 49K of the Act, the sub-section does not apply to exclude the unlawful discrimination.

MR NAKHLE

140 Mr Nakhle is included in the complaint with Ms Taikato. The submissions of the Complainant did not particularise the discrimination about which he complained other than, it was submitted, everything that was said concerning the discrimination relating to Ms Taikato applied to Mr Nakhle. Although he did not have Hepatitis C, he was discriminated against because his partner, Ms Taikato, had a Hepatitis C status. Mr Nakhle’s Hepatitis C had been cleared by a program on Interferon and he was not an active carrier of the disease.

141 The submission sought to bring Mr Nakhle within the provision of Section 49A(1) of the Act and to claim that he had been directly discriminated against.

142 However, to establish his discrimination, in terms of that section, Mr Nakhle would need to satisfy the Tribunal that he was a person who had been discriminated against on the ground of his physical impairment. As it was acknowledged, that Mr Nakhle at the relevant time did not suffer a physical impairment, he was therefore unable to qualify as suffering any discrimination based on his physical impairment.

143 The Tribunal accordingly is satisfied that Mr Nakhle has not substantiated his claim of discrimination under Section 49A(1) of the Act.

COMPENSATION

144 In view of the finding by the Tribunal that Ms Taikato has suffered unlawful discrimination by the Respondent, it is necessary to consider what orders should be made by the Tribunal as a consequence of that finding.

145 It is agreed by the parties that Ms Taikato has not suffered economic loss as a consequence of the discrimination. The submission of Counsel for Ms Taikato on the question of general damages sought an award of the maximum amount permitted to be made of $40,000.00 pursuant to Section 113(1)(b)(i) of the Act.

146 Ms Taikato did not provide evidence as to the extent of her suffering as a consequence of the discrimination. The Tribunal is in no doubt that the experience that she suffered would have caused her a deal of anguish and that anguish still continues. However, in the absence of specific details of the extent of her suffering, the Tribunal is not prepared to make a substantial award.

147 The Tribunal considers that it would be appropriate to order that the Respondent pay to the Ms Taikato by way of damages for the hurt and suffering that she suffered as a consequence of its discrimination, an amount of fifteen thousand dollars ($15,000.00).

COSTS

148 The parties did not address the Tribunal in relation to costs. In those circumstances it is considered appropriate to leave the question of costs so that the Complainant have leave to make an application for an award of costs to the Tribunal within twenty-one days of the date of this decision and in the event that the Complainant does not make an application in that period, the Tribunal directs that there be no order as to costs in relation to this inquiry.

SUMMARY

149 The findings and directions of the Tribunal in this inquiry are:

(1) In relation to the claims of Ms Taikato against the Respondent:
• that the claim of direct discrimination under Section 49A(1) of the Act has been substantiated.
• That the claim of indirect discrimination under Section 49A(3) of the Act is not substantiated and is dismissed.
• That the claim of unlawful discrimination in relation to the finding of direct discrimination, under Section 49K(1)(b) of the Act, is substantiated.
• That Section 49K(2)(a) and (b) of the Act does not apply to exclude the discrimination under Section 49A(1), from being unlawful.
• That the Tribunal under Section 113(1)(b)(i) of the Act directs that the Respondent pay by way of damages to Ms Taikato an amount of $15,000.00 within a period of 21 days from the date of this decision.
  (2)That the claim by Mr Nakhle under Section 49A(1) of the Act is not substantiated and is dismissed.

  (3)That either party be at liberty to apply to the Tribunal within 21 days from the date of this decision to seek an order for the payment of the costs of the parties arising out of this inquiry. If such an application is not made in this period, the Tribunal directs that there be no order as to the costs in relation to this inquiry.

Reasons for Decision

PER McDONALD (Dissenting)

150 The Complainants in this matter are a childless couple who attended the Respondent health service (Infertility Outpatients Clinic and subsequently The Westmead Fertility Centre) -(The Centre) for assistance in conceiving a child.

151 The Complainant had been diagnosed as suffering from chronic active hepatitis due to the combined infection with the hepatitis B and hepatitis C viruses. She was the first person known to have hepatitis C to have made application (in May 1992) for treatment at the Centre.

152 The details and nature of the complaint are described in the majority verdict.

153 In summary the complaints are that

• The Complainant was denied access to cryo preservation (storage in liquid nitrogen) of her fertilised embryos
• After one course of treatment the Complainant was denied further access to IVF treatment.
• The Complainant was not told the she was denied access to the full program and only discovered her lack of access after her surplus embryo's had been destroyed.
• And all of the above were discrimination on the grounds of her physical disability in the area of goods and services.

154 Hepatitis C is a relatively new viral disease discovered in 1986. Evidence was given that Hepatitis B was 10 times more infectious than Hepatitis C which in turn was 10 times more infectious than the HIV virus. The tests that were available at the time (1992) indicated the presence of the hepatitis C anti body which indicated the past presence of the virus but was not an indicator of current status. There was no test available for the virus itself although a test did become available later (1995). There is still no immunisation available for the disease and in 1992/93 there was much about the disease that was unknown including methods of transmission. The disease has serious and life long implications for those who become infected by it.

155 The hepatitis B infection (of the type she had ) did not disqualify her from full participation in the Respondent's fertility program.

156 Two processes are available at the Clinic to assist fertility. One process is carried out in entirely in the operating theatre. The other involves access to the operating theatre and the laboratory.

157 A procedure known as "GIFT" involves stimulation of mature egg production in the woman by the use of injections and the "harvesting" of these eggs at the optimum time. The "harvesting" is an operating theatre procedure. A large number of eggs can be harvested (10+). The eggs are microscopically examined in the operating theatre. Eggs that are not perfectly round are rejected as it is known they will not survive. Of the well shaped eggs that remain it is possible that some will not be at the optimum maturity and as a result cannot be fertilised however there is no way this can be determined by observation alone.

158 Because of this uncertainty of the quality of the eggs (the capacity to be fertilised) more than one egg is selected in the attempt even though the undesirable potential for multiple births exists. In 1993 a maximum of three eggs were used.

159 The selected eggs at this point are mixed with the sperm of the donor and, in a second medical procedure, immediately placed in the woman's Fallopian Tubes where fertilisation may take place. The GIFT procedure does not essentially involve any genetic material or any human tissues being transferred to the laboratory.

160 If the "harvest" of apparently good eggs exceeded three, two options existed. Leave the remaining eggs unfertilised or transfer the eggs and sperm to the laboratory to be fertilised and (after processing) storage in liquid Nitrogen for later use in a second and different process to attempt conception. The technology does not exist to cryo preserve unfertilised eggs.

161 This second procedure available at the clinic is applicable to women whose Fallopian Tubes are inaccessible or malfunctioning. This requires harvesting of eggs as described above but the eggs and sperm are removed to the laboratory where they are mixed together and stored in a nutrient solution at a controlled temperature to allow fertilisation to take place -in "Vitro" (in glass) hence "In Vitro Fertilisation" or IVF. Microscopic examination determines which eggs have fertilised and further, which fertilised eggs have a regular round shape. There is no expectation that irregular specimens have any hope of continued growth.

162 After 48 hours (about), a number of fertilised eggs are, in an second operating theatre procedure, "transferred" to the woman's uterus where conception may take place.

163 The unused fertilised eggs have the same option of liquid Nitrogen storage for later use.

164 After cryo preservation, fertilised eggs can be thawed and, after processing, inserted in the woman's uterus where conception may take place. This is a repeat of the transfer that followed the IVF procedure described above.

165 Four elements of the work in the laboratory and the equipment involved, were the subject of evidence.

MOUTH PIPETTING

166 Manipulation of eggs (fertilised or not) using "mouth pipetting" where the operator (in this case a laboratory scientist, uses mouth suction to pick up eggs into a fine glass tube (selecting individual eggs) for placement elsewhere. The evidence of Dr Smith was that mouth pipetting put the operator at risk of being infected by (in this case) hepatitis C for which there is no immunisation available. Dr Cunningham in his evidence was critical of mouth pipetting because of the risk and quoting his experience in Stanford University where "There are these devices which actually create a suction of the end of the tubs by rolling or by electrical devices.

167 In 1993 there were no mechanical "pipetting devices" at Westmead. Dr Smith when giving evidence stated firmly that mouth pipetting was still being done today (17 Feb 1999). "I'm relating my experience from discussion with the (laboratory ) scientists. I don't tell them how to do their work. They relate to me that that device which we use at Westmead is clumsy, and does not allow the same degree of fine control as the way that, of using the mouth control pippette."

168 Evidence was given of the size of the human egg as being about 50 microns in diameter. ( The diameter of thin human hair or two thirds of the thickness of newspaper )

VENTILATED HOOD or WORKSTATION

169 The manipulation of the human tissues, eggs and sperm is carried out at a ventilated workstation where the air flow is controlled so that air that has passed over the human tissues is immediately collected and cannot be inhaled by the station operator or any other person working in the laboratory. The control of the air flow is such that the specimen tissue is also protected from contamination.

PREPARATION FOR CRYO PRESERVATION

(Removal of water from tissues)

170 The first stage of the storage process where fertilised eggs are first placed and retained (but not sealed) in a plastic "straw" and this straw is processed in a machine using low temperature glycol. The processing progressively reduces the water content of the tissues and replaces the water with glycol. When the water content is low enough the straw is removed and the straw closed (but still not sealed).

171 Only the eggs of one donor are processed in the glycol replacement machine at any one time. The fluids remaining in the machine (glycol and water removed) are discarded after each use. The evidence was that there were concerns as to the capacity to sterilise this machine after use in a manner that would ensure the removal of possible viral contamination.

CRYROPRESERVATION (storage in liquid nitrogen at atmospheric pressure approx. -200O( Celsius )

172 Processed straws are immediately placed in what was described as a large stainless steel vacuum flask, the size of a desk ("the tank"), kept cold by boiling liquid nitrogen. The evidence was that this type of storage is believed to maintain tissue quality indefinitely.

173 The "tank" is a facility shared by approximately 500 donors. The evidence was that some plastic "straws" were found empty on removal, were found cracked and also occasionally burst on removal due to trapped liquid nitrogen boiling rapidly inside the straws. The incidence of such events was indicated as of the order of once a week.

174 The unchallenged evidence was that the harvesting process results in the collected eggs being exposed to a "sea of the mothers blood" which could transfer a virus to the exterior of the cell if the mother had such an infection. There was no way of reliably washing the virus from the cell exterior.

175 Further the evidence was

• Viruses are not destroyed by liquid nitrogen temperatures.
• The broken straws could result in a virus attached to one stored egg being transferred to a fertilised egg from another donor, in the nitrogen storage.
• That other donor could contract the virus (in this case hepatitis C) when the infected egg was placed in her uterus in a later IVF attempt.

  THAWING

176 A "reverse storage" or thawing process was implied where the stored material was re-hydrated by removing the glycol and replacing the water content and the material brought back to body temperatures.

FREEZE THAW

177 The three processes together are those described as Freeze Thaw in the consent documents

178 Despite her hepatitis condition, the Complainant was offered treatment at the Centre.

179 On or about 7 April 93 a decision was made to offer the couple treatment on the GIFT Program. It is clear from the evidence of Dr Smith that she was offered the GIFT Program only. The exclusions that she was NOT offered are dealt with below.

180 She and her partner were counselled by a member of the medical staff (Dr Matthews), by a member of the Nursing staff and by a laboratory scientist.

181 In their interview with Dr Matthews the couple signed a REQUEST AND CONSENT FOR IN VITRO FERTILISATION. The form document offered a series of options that were open to the couple as to how embryos surplus to immediate needs were to be treated. The choices were

• Disposed of immediately
• Donated at the discretion of the Human Reproduction Unit
• Cryo preserved at (the couples) expense for replacement at a later date.

182 The couple did not indicate a choice and none of these options were deleted.

183 A second document was signed on the same date (8/6/93) was a consent for the freeze thawing of fertilised oocytes. The second paragraph of this form reads.

" We understand that some fertilised oocytes may fail to continue to develop and will not be available for transfer. We understand that decisions as to the viability of the fertilised oocytes and freezing of such are the province of the Human reproductive unit".

184 The form contained a reference to a document which they confirmed they had received and read. In this document, titled IVF (In Vitro Fertilisation and GIFT (Gamete Intra Fallopian Transfer), under the heading of FREEZING OF EMBRYOS is the statement

"It may not be possible to freeze and thaw the extra embryos".

185 The evidence of the Complainants was that they were never told that cryo preservation was not available to them. They believed that having been offered a consent form that they were being offered the treatment.

186 The evidence of Dr Smith was that

"the plan initially was for no treatment at all". He consulted on the risks of Hepatitis C to a possible baby and he consulted on the risks to the laboratory and to personnel. He had resolved not to cryo preserve fertilised embryos possibly infected with hepatitis C in the "tank".

187 His evidence at one point was

"No I said my intention was not to contaminate the tank. Now if that meant not freezing them then that's what I was going to do. If there had been another option had (sic) miraculously come up then that could have been applied"

and elsewhere in his evidence he said in answer to a question about the ability of the Centre to provide cryo preservation

"I knew that at the time but there was a hope that things would change."

188 The couple were also interviewed by a member of the nursing staff and by a member of the scientific staff. There is no direct evidence of what knowledge the member of the nursing staff had of the decision not to cryo preserve but it is clear that the scientific staff were fully aware of the decision and to a large degree were responsible for the formulation of the policy (not to offer access to the laboratory).

189 In the end Dr Smith made a decision to offer "GIFT". His evidence on this was carefully couched. GIFT in its original form predated the availability of cryo preservation and needed no access to a laboratory for the fertilisation stage. He gave further evidence that not all fertilised eggs were suitable for preservation. He conceded that other patients who were offered GIFT would be offered cryo preservation even though many eggs in the end were rejected for reasons of viability and in some instances donors rejected the proposal to store fertilised eggs.

190 Dr Smith conceded that it was possible that Dr Matthews, who interviewed the couple and explained various matters including obtaining the signed consent forms, " was running under a different assumption and intention than (Dr. Smith) was)"

191 Dr Matthews was not available to give evidence but her notes were tendered. Dr Smith was confident that Dr Matthews had discussed hepatitis C with the couple.

192 The decision re the couples genetic material went beyond the question of access to the cryo preservation. The decision was that no tissue from the Complainant was to enter the laboratory where it could infect fertilised eggs from other couples and put laboratory staff at risk due to mouth pipetting and the possibility of airborne contamination. The intention was that IVF was excluded but the planned procedures for GIFT were not expected to need IVF anyway.

193 When the GIFT program was delivered for the Complainant on the 18 August 1993, 10 eggs were harvested and three were immediately mixed with her partners sperm. On attempting to place these eggs in her Fallopian Tubes it was discovered they were blocked (despite an earlier medical report that her tubes were normal and her sterility was likely due to her liver complaint.)

194 This put the Complainant in the position where she had suffered the invasive harvesting treatment for no result whatever. There was no possibility of completing the Fallopian Tube placement (GIFT).

195 The earlier decision to exclude the Complainant from the IVF program was reversed at this point. Her eggs and her partners sperm were taken to the laboratory where they were mixed and stored in the nutrient solution for 48 hours. All eggs were fertilised to widen the choice that would be made at the "transfer" point. 7 eggs were viable at this point. A choice was made of the three best eggs and in a second operating theatre procedure the eggs were transferred to the Complainant's uterus.

196 It is not clear who made this decision to grant access to the laboratory in the face of earlier discussions and decision.

197 The remaining four fertilised eggs were held in the laboratory (in the nutrient solution and at controlled temperature ) until microscopic examination showed that they had "fragmented" naturally and they were then disposed of in accordance with the laboratory protocol for disposing of human genetic tissue. The evidence was that there was no way of keeping fertilised eggs alive (in vitro) for more than 10 days at longest. It was thought that the nutrient needs of the eggs changed over time and at this stage it is not known how this might be accommodated. Dr Smith firmly rejected the suggestion that the fragmentation of the eggs was "destruction" initiated by the Centre while conceding that only cryo preservation could extend the potential of the eggs.

198 Dr Smiths statement included the substance of a conversation with the embryologist in charge of the Complainant's genetic material in the laboratory.

"On the afternoon of 20 August 1993 I had a conversation with Jacek Kossakowski to the following effect:

Jacek Kossakowski:

"The fertilised oocytes of (The Complainant) may carry both Hepatitis B and Hepatitis C viruses. The process of cryo preservation of these fertilised oocytes may cause the freezing equipment and the storage vessel to become contaminated by the viruses. This could expose fertilised oocytes from other couples to the viruses. I am not aware of any precedent for freezing such fertilised oocytes at the Hospital. The laboratory does not have duplicate equipment which would allow the quarantining of (the Complainant's) fertilised oocytes. (The Complainant ) will require her own freezing and storage equipment because of the viruses."

Howard Smith:

"It is not possible to guarantee that there will not be a risk to fertilised oocytes already in storage. In my experience fertilised oocytes will not survive in culture much longer than two days. There is no time to assemble the necessary equipment to allow the cryo preservation to occur nor is it practicable to find a laboratory which would agree to cryo preserve them or to transport them to such a laboratory. I can see no option other than to not freeze them at this time."

199 The Complainant did not become pregnant as a result of the three fertilised eggs implanted in the IVF attempt.

200 On the 27 September 1993 (immediately after it was clear that the Complainant had not conceived) Dr Smith spoke to the couple and outlined the events to date for the couple including that seven eggs had fertilised and three had been transferred to her uterus. He advised of the decision not to freeze the fertilised eggs because of the possibility of infecting fertilised (oocytes) from other couples. He noted that the laboratory did not have separate equipment to freeze store her fertilised eggs. He further noted that

"I expect that we will be able to offer you more treatment. However this should wait at least until we are able to test for the presence of the Hepatitis C virus rather than just the Hepatitis C antibody and until a policy decision is made by the team".

201 I note that the effect of this advice was in four parts

• The condition of her Fallopian Tubes did not allow any further GIFT attempts.
• The Complainant's surplus eggs had not been preserved and would not be available for subsequent attempts at conception via the IVF program.
• The Complainant would not be offered any further IVF program at present.
• The future for her was unclear but she was deferred rather than rejected.

202 Two years later, 12 May 1995, Dr Smith wrote to the Complainant and informed her that it had become possible to test for the hepatitis C virus. The offer was for her to be tested and if clear of the virus she could be considered again for treatment. She did not respond to the offer and in her evidence she said she knew that she was not free of the disease and that Dr Smith knew that Interferon had failed for her.

203 Two years later again on 15 April 1997 a joint letter from Dr Smith and Associate Professor Illingworth advised that full facilities "are now in place to offer you all aspects of this treatment"(to persons carrying the hepatitis C virus). Dr Smith in his evidence said that there were by this time there were fifteen patients in a situation similar to that experienced by the Complainant.

204 The Complainant did not respond to the offer.

205 In evidence Dr Smith gave a very broad estimate of what the cost would be of duplicating the laboratory equipment to avoid the risk of infecting other donors via their eggs. He indicated about $15000 for the tank and failed to put a figure on the water/glycol process machine or the controlled air flow work station. (I have used a figure of $20000 as a possible total cost which with installation costs is "in the ball park".) No figure was offered as to the operating cost of continually supplying liquid nitrogen as the consumable refrigerant nor was any figure offered as a comparison of the operating cost per donor when comparing a shared facility for 500 donors against a facility for a single user.

FINDINGS

PROCEDURAL DECISIONS

206 I concur with the majority decision in rejecting the claim of the Male Complainant.

207 The tribunal dealt with the issue of whether the inquiry should be governed by the Act in force at the time of the complaint or the August 1994 amendments. To the extent that the decision on this point is a matter for a lay member I concur with the position outlined in the majority judgement.

208 I concur with the position of the majority decision in finding that the Complainant is a person who is physically handicapped within the meaning of the Act .

DENIAL OF ACCESS TO CRYO PRESERVATION AND DENIAL OF ACCESS TO FURTHER PARTICIPATION IN FERTILITY PROGRAM

209 On the question of discrimination (on the grounds of physical disability) in the provision of goods of services it is claimed that discrimination occurred in that the Complainant was offered GIFT but deliberately not offered IVF and not offered cryo preservation as an adjunct of the IVF service.

210 The laboratory had a single set of equipment through which all genetic material accepted by the laboratory was processed.

211 The service that is the subject of the complaint was a communal service and the unchallenged evidence was that if the Complainant's genetic material was stored in that service there would be a small but real risk of infecting other users of the service with Hepatitis C.

212 The Complainant led no contrary evidence and, other than a submission on mouth pipetting made no attempt to disturb the evidence that led to this conclusion. There was no alternative to mouth pipetting available in that laboratory at that time. (Evidence was that mouth pipetting was still the most effective way of manipulating the eggs (oocytes)

213 The Complainant significantly did not submit that her fertilised eggs should have been stored in a manner that put other donors at risk of infection.

214 I hold it to be self evident that if a properly measured risk of infection existed that the operators of the laboratory could not and should not allow potentially infected material to enter the laboratory equipped as it was at that time.

215 The fact that the operators of the laboratory allowed the Complainant's eggs to be taken into the laboratory to be fertilised and maintained for 48 hours after the GIFT program could not be completed does not change the operating principal involved.

216 It appears that a scientist took a risk with his/her own health and processed the material. It is also clear that there was an immediate reaction (on the same day the fertilised eggs were transferred to the Complainants uterus) where the conversation between Dr Smith and Jacek Kossaokoski reinforced the technical risk assessment that had been previously made.

217 It is clear that the Centre did not discriminate against the Complainant on the basis of her dual hepatitis condition. Despite her condition she was treated for many months including two procedures in the operating theatre.

218 The procedure or process allegedly denied her was the IVF Program and the cryo preservation of her fertilised eggs and it was clear that the basis of the decision was that the equipment available at that time could not quarantine her possibly infectious eggs (fertilised oocytes) from fertilised oocytes belonging to other donors. These were the "services" allegedly denied her and which were the subject of this part of the complaint.

219 On this basis alone the complaint fails the test of Section 49 K (1) (a) and (b). At the relevant time there was no service that isolated her infectious material from other users of the service. Therefore there was no service hence discrimination in goods and Services could not have occurred.

220 Questions of "reasonably practicable... assistance ...to use those services" arise in 49K (2) (b) which section becomes relevant only if the test of 49K (1) is passed.

221 Section 49K (2) does not go as far as Section 49I (b) (which deals with discrimination in employment on the grounds of physical impairment). Section 49I (b) requires the reasonable provision of services or facilities.

222 There was no possible assistance that the Centre could have offered the Complainant that would have enabled her to use "those services" short of curing her of hepatitis C or removing the virus from her fertilised eggs both of which were beyond available technology.

223 To hold that duplicate equipment should have been provided for the Complainant's sole use requires first a conclusion that the words of s49K(2), "reasonably practicable assistance to use those services" can be expanded to have the same meaning as s49I(b) which requires "reasonable provision" of "services or facilities" and secondly that the requirement to provide duplicate equipment for sole use of the applicant is reasonable.

224 I hold the that wording "assistance to use those services" cannot be read as a requirement to provide other duplicate services.

225 Secondly the question of "reasonable provision" has a component of financial cost and cost effectiveness. The question of reasonableness does not hinge on whether the Centre is a Government facility or a private "for profit" service. If it were a commercial service it is easy to conclude that no operator who provided a communal service for 500 customers could be required (under this Act) to spend $20,000 plus operating costs to duplicate the service when a demand presented for a single client. It is my view that this requirement would be unreasonable.

226 As a government service the question of what services are available depends on an allocation of funds. It is well known that there are always more applicants for government funded health services than there are services available. The allocation of public funds involves not a "bottom line profit" but an application of funds which attempts to provide the most cost effective decision where the greatest number of people receive the greatest benefit. By any standard the expenditure of $20000 capital plus an operating cost is significant and it is axiomatic that this cost can only be found by diverting it from other potential beneficiaries in health or other areas of government.

227 I find that it would be unreasonable to require the Centre to provide duplicate services of this type as a response to any obligation they had under Section 49K (2) (b) to "do all things as were reasonably practicable... to assist ...the physically handicapped person to use those services"

228 The fact that the Centre did purchase and install such equipment four years later does not impact on their obligations under this Act in 1993.

229 I dismiss both the complaint relating to access to cryo preservation and the complaint relating to further participation in the Fertility Program

FAILURE TO INFORM COMPLAINANT OF LIMITATION OF ACCESS TO PROGRAM

230 The Complainant submitted that the failure to inform her that IVF and cryo preservation was not to be available to her was discriminatory on the grounds of her physical impairment. She offered no evidence as to why the Centre wished to keep her ignorant of the matter nor did she provide any evidence that would establish a causal link between the discrimination and the grounds.

231 It has already been found that the Complainant had a relevant physical defect.

232 It was common ground that the communication (to the couple) of their progress and prospects formed part of the "service".

233 The evidence of the Respondent on this issue was principally that of Dr Smith's.

234 He conceded that the initial consideration was that they could not treat the Complainant at all because of her hepatitis C condition.

235 On further investigation this exclusion was relaxed to the point where she was admitted to GIFT but only to the original form of Gift where no access to the laboratory (for IVF and/or cryo preservation) was to be provided.

236 When the GIFT procedure was performed access to the laboratory for IVF was given as an emergency one off event.

237 The staff of the Centre numbered about 15 at the time and the Complainant was the first hepatitis C patient they had knowingly dealt with. There were significant consultations internally and externally on the consequences of treating an hepatitis C patient. The Complainant was formally interviewed by a member of the medical staff, the nursing staff and by a scientist. There were many other points of contact between the staff at the Centre and the Complainant (and her partner)

238 Dr Smiths evidence suggests that she "must have been told" but he does not point to any incident or instruction that he issued to that effect.

239 Dr Smith at two points of spoke of a "hope that things might change and "something miraculous turning up". He was not asked to amplify these statements.

240 On balance I have formed the opinion that :

• A significant number of people in the Centre must have known of the decision and were aware that the patient had not been told.
• The failure to tell the Complainant could not have been an accident or an administrative failure
• The Complainant was not told of her exclusion from IVF and cryo preservation.

241 This finding does not establish that the question of "on the grounds her disability" is satisfied.

242 I have considered the following possibilities:

• While the Centre had decided not to allow participation beyond GIFT" they saw that the state of mind of the Complainant and her capacity to become pregnant from GIFT would not be assisted by the bad news and learning sooner rather than later would not benefit her.
• If the GIFT Program was successful (and the Complainant became pregnant) then the problem of exclusion from the rest of the program would not arise.
• If the number of eggs capable of being fertilised was three or less the problem of IVF and crypreservation would not arise.
• Prior to GIFT being attempted (and the discovery of blocked Fallopian Tubes) Dr Smith and staff could have considered that while the door was open on GIFT the exclusion from IVF and cryo preservation would not be particularly significant.
• Dr Smith and his staff were unwilling to be the bearer of bad news.
• In the absence of an instruction from Dr Smith no-one was going to be the bearer of this bad news.
• Dr Smith delayed telling the Complainant until the last possible minute in the hope of a "miracle" or of "something turning up".

243 The list is presented to illustrate that there can not be a presumption that "on the grounds of her disability" follows on automatically from the presence of the Complainant's relevant disability and the denial of a "service". Other possibilities could reasonably exist which would not lead to a finding adverse to the Respondent.

244 Except for Dr Smith's own evidence of hoping for a miracle, which was not pressed of formalised, no evidence was presented to support any of this (in this context of failure to a keep informed).

245 A mere assertion that the discrimination was on the grounds of physical impairment is no more likely to be true than a rebuttal without evidence or submissions. The belief of the Complainants, no matter how firmly held, was of no assistance in determining this matter.

246 The actions of the Centre staff during the failed GIFT procedure give a strong indication that they were not ill disposed to the patient.

247 On any reading of the events the staff:

• Overturned a management decision to keep the Complainants tissue out of the laboratory.
• One of them risked his/her health dealing with potentially infected material with equipment that put them at risk of infection
• They risked their own reputation for competence and that of the centre's in order to provide something for the Complainant who would otherwise have suffered months of invasive procedures for GIFT for no possible outcome at all.

248 The Complainant bears the onus of proof and no evidence was tendered or established in examination that bears on this point directly.

249 I did not find any evidence to link the failure to inform the Complainant with the necessary "on the grounds of her physical impairment" .

250 I dismiss both aspects of the complaint, the portion relating to access to the IVF service and cryo storage and that portion relating to failure to advise the Complainant of her exclusion the IVF program including cryo storage.