Tu v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute

[2010] NSWADT 290

CITATION:

TU v AMI Australia Holdings Pty Ltd t/as Advanced Medical Institute [2010] NSWADT 290

DIVISION:

Equal Opportunity Division

PARTIES:

APPLICANT
TU

RESPONDENT
AMI Australia Holdings Pty Ltd trading as Advanced Medical Institute

FILE NUMBER:

091101

HEARING DATES:

6 and 7 April 2010, 7 May 2010 and 23 July 2010

SUBMISSIONS CLOSED:

23 July 2010

 
DATE OF DECISION: 

7 December 2010

BEFORE:

Grotte E - Judicial Member; O'Sullivan M - Non-Judicial Member; Hayes E - Non-Judicial Member

CATCHWORDS:

Disability Discrimination - HIV - public health

LEGISLATION CITED:

NSW Anti Discrimination Act 1977
Disability Discrimination Act (Cth) 1992

CASES CITED:

Beattie (on behalf of Kiro and Lewis Beattie) –v- Maroochy Shire Council (1996) HREOCA 40 (20 December 1996)
Hall –v- Sheiban (1985) ALR 503

REPRESENTATION:

APPLICANT
Indraveer Chaterjee, solicitor

RESPONDENT
Natasha Petukh, In-House Counsel for the Respondent

ORDERS:

1. The Tribunal directs the Respondent to pay $30,000 to TU within 28 days of this decision
2. The Tribunal also directs the Respondent to refund in full the amount of $1995.00 to TU with credit to be given for any payment already made in this regard.

REASONS FOR DECISION

1 At the commencement of the Tribunal Hearing on 6 April 2010 the Applicant applied for a suppression order pursuant to section 75 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Given the sensitive nature of the Applicant’s disability, the Tribunal was satisfied that an order should be made pursuant to section 75(2) of the ADT Act that:

1)The disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the Applicant is prohibited;
2)The doing of any other thing that identifies or may lead to the identification of the Applicant is prohibited; and
3)The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence before the Tribunal is prohibited.

This decision is subject to this Order and accordingly it has been written in a way that will not lead to the identification of the Applicant. The Applicant has generally been referred to as the Applicant, but in the title of, and elsewhere in, this decision, the Applicant is referred to as ‘TU’.

The Complaint

2 On 26 February 2009 ‘TU’ lodged a complaint with the Anti Discrimination Board (the ADB) stating as follows:

“The Advanced Medical Institute (AMI) assists in the improvement of sexual health and in doing so, claims to restore the quality of men of all ages.

I sought treatment at AMI for erectile dysfunction and contacted AMI for a face-to-face consultation/assessment at their Bondi Junction office.

Consultation and Disclosure

On 4 December 2008, I had a consultation with Nurse Margaret who carried out a health assessment. During this time I disclosed my chronic conditions, being diabetes, Meniers disease and HIV. I also provided her with a full list of my medications to ensure that treatment at AMI would be appropriate and to ensure that the treatment would not interfere with my medications.

Nurse Margaret appeared to be recording all my personal details and information which I provided on a computer. I understood this to be a standard protocol for the initial face-to-face consultation.

After analysing the medical history I had provided her with, Nurse Margaret stated that I was an appropriate candidate for AMI treatment and recommended that my treatment include both injections and gel. Nurse Margaret stated that I would begin my treatment with the injections and after two weeks of such treatment, that I would commence using the gel provided that I had no reactions or complications with treatment by injection.

She stated that after the first two weeks I should contact AMI and request the gel.

Nurse Margaret then proceeded to contact Dr John Balafas, the prescribing doctor, by telephone. In my presence, she discussed my complete health status.

I then spoke directly to Dr John Balafas and discussed with him my medical conditions and medication regime, as I had done with Nurse Margaret. Dr Balafas stated that he could see no difficulty in my entering the program and stated to me the conditions under which the injections were to be administered.

Nurse Margaret then spoke once more to Dr Balafas after which she told me that she had been instructed by Dr Balafas to accept me into the treatment program. She then proceeded to outline the various treatment options that were available to me and the corresponding costs.

I opted for an eight month program, to be supplied with as much medication as I needed during this period. I paid in total by MasterCard after signing a contract. I paid the full total of $1995.00. Annexure A: a copy of the TaTU invoice, an AMI card I received and my MasterCard receipt.

Finally, I was informed that I would receive the medication by post. Within two weeks of my visit, I received and used a vial of injectable material and a container of gel. I used them in accordance with directions given.

Discriminatory events

Initial Refusal of Service

As scheduled and directed by both Nurse Margaret and Dr Balafas, two weeks after I have commenced treatment by injection, I contacted AMI Customer Service and requested the treatment gel, stating my name and that I had begun treatment with injections for two weeks as directed.

The representative whom I spoke to on the AMI Customer Service line told me that he could apparently find no record on my customer reference file that I was to receive the gel.

I requested that the representative contact either Dr Balafas or a senior nurse to verify that my call was genuine and that I was instructed by Nurse Margaret to contact AMI for the gel.

A short time later, I received a call from AMI, explaining to me that I should expect to receive the gel by post.

Refusal of any further treatment

On 22 December 2008, at 8:45am I received a call from a supervisor who told me that her name was Karen.

Karen stated to me, words to the effect, “You are no longer suitable for the treatment program due to your HIV status”.

Karen stated that the decision to go back on the initial finding by both Dr Balafas and Nurse Margaret that I was suitable for treatment, taking into account all my medical history that I had disclosed, including my HIV status, was a result of “a recent change in legislation”.

I requested that a copy of the “new” legislation to which she referred, be sent to me. Karen stated that she would provide a copy of this legislation by post, along with a full refund of all my treatment fees.

On 12 January 2009, I had still not received a copy of the “new” legislation which Karen has referred me to as the reason for the termination of my treatment program. I asked for a copy of the legislation and was told that she would not assist me with this. She did not state that there was nothing on my customer reference file and instead stated that she was, “only here to answer questions and I know nothing about your case.”

I had discussed with my HIV treating Doctors about the treatment I was seeking and received from AMI. They indicated to me that they are aware of the treatment provided by AMI, and that there would be no complications arising out of the AMI treatment.

Communication with AMI

On either 22 December 2008 or 23 December 2008, a message was left on my mobile voicemail. The caller identified himself only as “Brett”, leaving no other details about himself except for a return phone number and that I should call him before his last day of work prior to the Christmas holidays. I made several attempts to return Brett’s call and always found the number to be either engaged or unattended.

I contacted AMI on 12 January at 2:45pm to ask about the refund that I was expecting and spoke t a representative who told me that her manager would call me back. She said words to the effect, “I will get my manager to call you back. I have no information in my records for this refund.” This was the same call during which I asked about the legislation which was due to be sent to me.

On 12 January 2009 at 3:00PM, a “Brett” contacted me and identified himself to me as my Case Manager. He questioned why I had not returned his previous call, upon which I informed him of my earlier attempts to return his call despite not knowing his identity, which he had not until this call, disclosed to me.

Brett stated that AMI Privacy Policy prevented him from leaving any information on my voicemail about his status of Case Manager at AMI.

We then discussed the issue of the refund which he stated would not be in total, stating that I had been misinformed with the promise of a total refund.

On 22 January I spoke to Brett again in relation to the fact that no cheque for any refund had arrived. At this time I took the opportunity to also ask about why my treatment was terminated.

Brett stated that he had no knowledge of the reason for the termination of my treatment after initially being accepted for the treatment program. I asked Brett again and this time he stated, words to the effect, “It is a medical decision ad is confidential information”. I then informed him that Karen, the representative to whom I had spoken to on the AMI Customer Service line on 22 December 2008, had already told me that the termination was a result of new legislation and therefore, made on a legal basis. I explained my situation of acceptance and rejection again and he replied, “I cannot answer this.”

I am yet to receive any copy of the “new” legislation which was claimed to be the basis on which my treatment was terminated.

The basis of my complaint is that the respondent(s) have engaged in discriminative conduct against me on non-existent legal and medical grounds.”

3 The ADB carried out an investigation into the complaint and in doing so, wrote to the Director of Advanced Medical Institute Pty Ltd (AMI) seeking a response to the complaint.

4 On 1 June 2009 Gary Penny, Lawyer for AMI confirmed that ‘TU’ was prescribed medication by Dr Balafas on 4 December 2008. He confirmed that Nurse Margaret Coulten explained the procedures involved in the injectable medication to ‘TU’ and that he should telephone for additional medication after two weeks. It was confirmed that when ‘TU’ contacted AMI for that additional medication, he spoke with Nurse Baker who advised him that he was unsuitable for the medication and that he would receive a full refund of the cost of his program. Mr Penny stated the following:

“The decision to terminate the treatment was considered, in our view to be correct, in that ‘TU’ has an infectious disease and if deemed discriminatory, it was not unlawful, because it was a matter of public health pursuant to section 49P of the Act.

Further, when ‘TU’ says that the discriminative conduct was based on non-existent legal and medical grounds, at the time of the making of the decision, the company believed it to be correct. By way of explanation, if the treatment did not involve injectable medication the company would have no issue in providing medication as ‘TU’ could take steps to prevent infection through the use of a condom. The reason that the company has a concern regarding the use of injectables is that it understands that there is a risk of transmission where an injectable is used which is unable to be fully guarded against using a condom due to the location in which the injection must be made and the risk that a condom may not cover this spot…”

5 The complaint could not be resolved by way of conciliation and was referred to the Administrative Decisions Tribunal pursuant to section 93C of the Anti-Discrimination Act 1977 (ADA).

Tribunal Proceedings

6 The Applicant’s Points of Claim lodged in the Tribunal proceedings were as follows:

a)The Applicant claims against the Respondent, who was at all relevant times trading as Advanced Medical Institute.
b)At all relevant times, the Applicant suffered from a disability as recognised under the Act, the condition being HIV.
c)The Respondent provides services to men suffering from erectile dysfunction. Relevantly, the Respondent provides for a fee, products that can be delivered via injection or externally via a gel-base. These products are for purposes of alleviating erectile dysfunction.
d)On or about 4 December 2008, the Applicant sought advice and treatment from the Respondent, at the Respondent’s Bondi Junction office, in a face-to-face assessment.
e)During the assessment, the Applicant was interviewed by a nurse employed by the Respondent, who identified herself as “Margaret”. The nurse interviewed the Applicant on his medical history in order to assess his suitability for the services provided by the Respondent.
f)At this time, the Applicant made a full disclosure to the nurse of his relevant medical history, including his HIV positive status.
g)The nurse then proceeded to discuss the Applicant’s medical history with a doctor employed by the Respondent, Dr John Balafas. The nurse discussed the Applicant’s medical history with the doctor in the presence of the Applicant. The Applicant then spoke with the doctor about his medical history. The doctor then proposed a course of services to be provided by the Respondent.
h)The Applicant was deemed suitable to receive the Respondent’s products, to be delivered through injection and gel.
i)The Applicant discussed the various treatment options with the nurse, and entered into a contract with the Respondent.
j)The Applicant was advised by the nurse that he would receive the relevant materials, being the injectable material and the gel-based material, within the following fortnight. Further, the l)Applicant was advised that he was to initiate treatment with the injectable material and commence the gel-based medication two weeks following this, provided the Applicant suffered no adverse side effects.
k)The Applicant was further advised to contact the Respondent for further medication as required.
l)It was alleged that the Respondent failed to provide relevant information or undertake activities consistent with the Respondent’s position under section 49P of the Anti Discrimination Act (ADA).
m)It was alleged that at no time was the Applicant counselled by either the nurse or the doctor about any increase in risk of transmission of blood-borne viruses (BBVs) through use of the Respondent‘s injectable material.
n)It was alleged that at no time was the Applicant questioned as to his sexual practices, or whether the Applicant pursued an active sexual life.
o)It was alleged that at no time was the Applicant informed of any obligations he may have under the relevant public health law, being the NSW Public Health Act (1991).
p)It was alleged that at no time was the Applicant required to undergo testing for any sexually-transmissible infections (STIs) or BBVs.
q)It was alleged that the Applicant received both the injectable material and the gel-based material within the fortnight, and used the injectable material in accordance with the directions provided.
r)It was alleged that the Applicant followed up with the Respondent on or about 22 December 2008 for further medication as directed.
s)It was alleged that the Applicant was put in contact with a supervisor who informed him that he was no longer suitable for the Respondent’s treatment due to his HIV status, and could not be provided with the Respondent’s services due to recent legislative changes.
t)The Respondent discontinued providing the Applicant with services, being both the injectable material and the gel-based material for external application.
u)It was alleged that on 22 January 2009, following further queries by the Applicant, he was no longer suitable for the Respondent’s services for medical reasons.
v)It was alleged that in June 2009 the Applicant was advised by the Respondent that he would be suitable for the provision of services if he could provide a sign-off by a third party doctor that the use of the Respondent’s services would not create public health issues. The Applicant alleges that this was an unreasonable requirement.
w)The Applicant alleges the Respondent has contravened section 49M of the ADA.
x)The Applicant alleges the Respondent refused to provide services to him on 22 December 2008, being services for which the Applicant had already paid.
y)The Applicant alleges that the Respondent refused to provide those services on the grounds of his HIV condition.
z)The Applicant alleges that the Respondent failed to provide the Applicant with reasons for discontinuing the service in a reasonable and timely manner.
aa)The Applicant claims damages for loss suffered due to the Respondent’s conduct being for loss of consortium, psychological pain and suffering, and embarrassment.

7 In support of his claim, the Applicant relied on the following documentary evidence:

a)Tax Invoice dated 4 December 2008 issued by Advanced Medical Institute to TU in the sum of $1995.00 for an eight month treatment program;
b)Medical Report of Dr Michael Lowy, Men’s Health Physician, dated 16 November 2009;
c)Email from Karen Raines, Senior Medical Information Associate for Pfizer Australia dated 30 June 2009 regarding Caverject Impulse Restrictions with attachments;
d)Medical Report of Dr Ronald Penny, AO, Immunologist and AIDS Specialist, dated 18 December 2009;
e)Medical Report of Dr Sarah Pett, Infectious Diseases Physician, dated 10 January 2010.

8 Dr Lowy stated in his report that ‘TU’ has been receiving treatment from him in respect of penile injection therapy for erectile dysfunction. Dr Lowy stated that he has 17 years of experience treating men with erectile dysfunction with penile injection therapy. He stated that there has always been a small percentage of these men who are HIV positive and that he has successfully treated them over the years without any adverse outcomes.

9 Dr Lowy stated that “there is no risk of transmission of HIV through use of small-bore needles if the needle is only used once by the patient”. He stated that “the small skin lesion resulting from the needle penetration is easily closed by firm pressure following injection and the lesion is generally in an area covered by a condom”. Dr Lowy stated that he has no knowledge of “any transmission of HIV infection in [his] patients who are being treated with penile injection therapy”.

10 Dr Lowy stated that “If a patient advises me that he is HIV positive, I pay particular attention to discussion over safe sex practices in relation to the use of a needle and the resulting small penetrating skin lesion.” He stated that ‘TU’ “is intelligent, and understands all of the issues and has followed my instructions exactly”.

11 In his report dated 18 December 2009, Dr Penny stated that he has treated ‘TU’ for many years. He stated that ‘TU’ has had “no virus in the blood for a considerable period of time and in combination with condom usage already protects himself adequately from the public health point of view”. Dr Penny stated that “in the absence of HIV viral load and with meticulous attention to hygiene and prophylaxis I do not believe he represents a significant public health risk”.

12 In her report dated 10 January 2010, Dr Pett stated that she has had 18 years of experience in the field of HIV and Infectious Diseases. She stated that “the likelihood of increased risk of transmission of HIV through the use of a small bore needle in this instance is nil”. She stated that the rationale for this statement is:

“I. the amount of blood left on the skin following the injection of this agent using a small bore needle would be miniscule, if any;
II. the plasma virus load in this patient is undetectable, which means the infectiousness of blood is reduced to virtually nil;

III. normal hygiene would mean that any blood spot post injection would have been washed off prior to sexual contact;
IV. the patient uses condoms for sexual intercourse.”

13 The Respondent did not lodge any Points of Defence but relied on the following documentary material in defending the claim:

a)Letter from Dr Berry dated 2 March 2010;
b)Copy of the Nurses Reference Folder dated 28 April 2009;
c)Copy of section 49P of the Anti-Discrimination Act 1977 ;
d)Letter from Dr Brian Lonergan dated 3 November 2009.
e)A letter from Dr Omar dated 25 February 2010 was lodged on behalf of the Respondent but was withdrawn at the Tribunal hearing.
f)Extract from Caverject Instructions.

14 Dr Berry is a contract doctor working for the Respondent. He stated in his letter dated 2 March 2010 that he has been a registered doctor for 33 years. Dr Berry attached the Nurses Reference Folder used by the nursing staff employed by the Respondent to his statement. The Folder sets out the medications prescribed by the Respondent and their contra-indications.

15 Dr Berry referred to page 13 where it is stated that HIV/AIDS (as well as Hepatitis) are all contraindications for injectable products. Dr Berry stated that Injectable Medications are “not prescribed to patients suffering from those conditions due to the risk involved in the transmission of the HIV/AIDS virus to non-infected individuals through the transmission of blood caused by the injection”. Dr Berry stated that, in his opinion, “the risk of transmission of HIV/AIDS if a patient is using injectable medications is increased and gives rise to undue risk”.

16 Dr Lonergan is also a contract doctor for the Respondent. He stated in his letter dated 3 November 2009 that he is a registered doctor employed by the Respondent. He stated that he does not prescribe any medication for people with HIV or who are shown to be HIV positive because:

“the virus is spread via sexual intercourse and via blood. Furthermore the medications used to treat HIV can affect the liver and metabolism of many other drugs. The least appropriate thing to treat any patient with HIV status would be injectable medication. The reasons for this are it is impossible to give the required counselling telephonically. A failure in communication in this respect could lead to the spread of the virus and potential death”.

17 Dr Lonergan stated that the medication is administered via a “tuberculin syringe” which is injected at the base of the penis. Dr Lonergan stated that “this poses a risk of transmitting the HIV virus to the partner of the person who has administered the injections as this often draws blood”. Dr Lonergan referred to the case of Bt – Oei (1999) NSWSC 1082 in which a doctor was found to be guilty of failing to provide sufficient face-to-face counselling to an HIV patient who then infected his partner with the HIV virus. His partner then successfully sued the doctor for damages.

18 The extract from the Caverject instructions states as follows:

“The injection of Caverject can induce a small amount of bleeding at the site of injection (see ADVERSE REACTIONS section hematoma, echymosis, hemorrhage at the site of injection). In patients infected with blood-borne diseases, this could increase the risk of transmission of blood-borne diseases between partners.”

Tribunal Hearing

19 At the Tribunal Hearing the following witnesses gave oral evidence in addition to their statement evidence:

a)The Applicant ‘TU’
b)Dr Michael Lowy
c)Dr Sarah Pett
d)Dr Vaisman
e)Dr Omar
f)Dr Balafas
g)Nurse Karen Baker
h)Dr Lonergan
i)Dr Berry

20 The Applicant also relied on a bundle of documents tendered at the hearing, which included the following:

a)‘The National Guidelines for the Management of People with HIV Who Place Others at Risk’ endorsed by the Australian Health Ministers’ Conference dated 18 April 2008;
b)‘The National Guidelines for Post-Exposure Prophylaxis after Non-Occupational Exposure to HIV’ issued by the Australian Government Department of Health and Ageing, March 2007; and
c)‘HIV, Hepatitis B and Hepatitis C – Management of Health Care Workers Potentially Exposed’ issued by NSW Health on 27 January 2005.

21 The Guidelines at “21a” above provide a framework for the management of HIV public health risk within an across Australia’s State and Territory jurisdictions. The general principles outlined in this document are summarised as:

-except in special circumstances, testing for HIV should be conducted on a voluntary basis;
-people with HIV should not be quarantined, or excluded from social or sexual activities;
-every individual has a responsibility to prevent themselves and others from becoming infected and preventing further transmission of the virus;
-most people with HIV are motivated to avoid infecting others and the risk of transmission by most people with HIV is best managed through access to information, education, resources for the prevention of transmission and HIV treatment services;
-counselling and support services including post-diagnosis counselling, should be provided to encourage behaviours that minimise the risk of infecting others;
-for people with HIV who place others at risk, a variety of increasingly interventionist strategies may be needed, with preference being given to strategies that are least restrictive, as these will generally be the most sustainable and effective in the long term;
-the right to equitable, non-discriminatory and transparent dealing, including the right of review and appeal, should be preserved.

22 The National Guidelines for Post-Exposure Prophylaxis after Non-Occupational Exposure to HIV deal with the assessment of the risk of HIV transmission in situations such as receptive anal intercourse, insertive anal or vaginal intercourse or insertive fellatio, amongst others. The estimated risk, for example, for receptive anal intercourse is 1/120 and for insertive anal or vaginal intercourse is 1/1000. At page 2 of this document it is also stated that co-factors which may increase the risk of HIV transmission include a high viral plasma load. It is also noted that “a low load does not eliminate transmission risk”. Other co-factors, which are said to increase the risk, are a breach in genital mucosal integrity or a breach in oral mucosal integrity when performing oral sex, particularly for the receptive partner.

23 The document bearing the title “HIV, Hepatitis B and Hepatitis C – Management of Health Care Workers Potentially Exposed”. This document states that HIV “may be transmitted by significant exposure to blood or other body substances”. It sets out the responsibilities of Public Health Organisations in situations where health care workers (HCW) are exposed to HIV in the course of their employment. The document states that an assessment of the significance of the injury should be made and that this should be estimated based on consideration of the following factors:

-The nature and extent of the injury;
-The nature of the item that caused the injury eg. the gauge of the needle;
-The nature of the body substance involved; and
-The volume of blood and body substances to which the HCW was exposed (see Table 1).

24 Table 1 sets out the classification of exposures. It states that the highest risk occurs when there is percutaneous exposure to a large volume of blood and exposure to blood containing a high titre of HIV. It states that there is increased risk where there is either exposure to a large volume of blood or exposure to blood with a high titre of HIV, but no increased risk where there is neither exposure to a large volume of blood nor exposure to blood with a high titre of HIV. Table 1 also states that “only in the case of percutaneous, significant percutaneous, significant mucous membrane or significant skin exposures is further assessment of the HCW required”.

Oral Evidence at Tribunal Hearing

The Applicant TU

25 In addition to the written complaint and the Points of Claim, the Applicant relied on his statutory declaration dated 19 February 2009, which was tendered and admitted into evidence. The Applicant’s evidence was consistent with the following additional matters:

-There was only one face-to-face consultation. The rest of his contacts with the Respondent, of which there were six, were by telephone;
-Most of these contacts were initiated by the Applicant;
-At the first assessment he was asked to disclose any pre-existing conditions. He disclosed that he had HIV, Diabetes and Meuniere’s Disease;
-Following his interview with Nurse Margaret, he spoke to Dr Balafas on the telephone only. Dr Balafas reviewed the protocol with him and said that he accepted the Applicant into the program. He then received a package of two syringes and medication. Dr Balafas was the prescribing doctor. The Applicant was told that if there was no adverse reaction, he would receive the gel;
-Despite being informed by Nurse Baker on 22 December 2008 that he was no longer suitable, he received the gel but no refund cheque and no copy of the relevant legislation as promised by Nurse Baker;
-Eventually, he was given only a partial refund in the sum of $1295 by a person known to him as “Brett” from the Respondent. A service fee and the costs of medication had been deducted from the full cost.
-Brett told him that the service had been terminated on medical grounds;
-The Respondent had not discussed with him safe sex practices or the risks of blood-borne viruses;
-His treating doctor, Dr Lowy, had previously prescribed different injectables such as Caverject Impulse. He had used this for two-and-a-half years. The injection site can be in different places and it is minute. There is only one wound at a time and the medication does not take effect for 20 minutes, by which time there is no longer any bleeding. The condom covers the site of the injection puncture/wound;
-The gel is a replacement treatment. Injections and gel are alternatives so that the number of injections is reduced;
-His health is under control. The Meuniere’s Disease is chronic but a non-issue. The Diabetes is well under control. He was first diagnosed with HIV in 1985 but has never had a defined condition and has never been sick. He has never had a detectable viral load, which is believed to be a measure of infectivity.
-He has a doctorate in Psychology and has worked in the public arena formulating public policy in respect of safe-sex practices. --He regularly liaises with the Department of Health in his work;
-He is angry at what has happened. He is not a stupid person. He is intelligent, well-educated, well-informed and is at sufficient ease with himself to disclose his health status. He deserved to be treated better;
-He described himself as a decent person who would never put a partner at risk and risk spreading a blood-borne disease;
-He has not experienced a condom break or leakage of the injection wound through the condom membrane. He always uses safe-sex practices.

Dr Michael Lowy

26 Dr Lowy confirmed his statement evidence that he is a Sexual Health Physician and has worked in men’s health since 1992. His main work is sexual dysfunction and he has treated many patients who are HIV positive. He always assesses the suitability of an HIV patient for penile injection therapy. If the patient is able to understand the responsibilities, he will proceed with the treatment. He states that it is important that the injection site is covered with a condom. The mental state of the patient is a consideration, as is the patient’s understanding of the need for safe-sex practices.

27 Dr Lowy stated that he has known the Applicant as a patient for two-and-a-half years and that he is very comfortable and reassured that the Applicant is the type of person who engages in safe-sex practices. Dr Lowy stated that the viral load would not necessarily influence suitability. Safe sex is the principal criterion and condoms have been shown to be effective and adequate. Under cross-examination Dr Lowy agreed that there is a risk of transmission, but he stated that it is very small. He stated that his practice decided some time previously that denying penile injection treatment to HIV patients would be discriminatory. He agreed that some older patients with dementia may be unsuitable for the treatment and that dementia sometimes accompanies the progression of the illness of HIV. He explained that “viral load” is an expression that reflects the level of the disease in the body.

Dr Sarah Pett

28 Dr Pett confirmed her statement evidence that she has been an Infectious Disease Physician since 2003 in Australia. Dr Pett confirmed that she has a total of 18 years medical experience in the United Kingdom and Australia. Her main area of expertise is HIV/AIDS. She stated that since 1996 there has been a test available that is able to quantify the amount of HIV in the blood, assessing what is known as the “HIV viral load”. If a person has an “undetectable viral load”, the person has a good long-term outcome and an “undetectable viral load” is the aim of HIV treatment.

29 Dr Pett stated that condoms are very effective in preventing the spread of the disease if they are used on every single occasion of sexual contact and if the person is meticulous in their use. She conceded that there is a risk, but that it is very small because, even if condoms are used properly, they are only 99% effective in respect of both vaginal and anal intercourse.

30 Dr Pett stated that the needles used in the penile injection treatment are small-bore needles with a 25 gauge needle and any amount of blood drawn would be miniscule. It would be “very, very small”. Dr Pett referred to the “Post Exposure Prophylaxis Guidelines of Health Care Workers, 2003” and noted that in March 2007 the potential risk of this kind was reviewed. The gauge of the needle, the nature of the substance and the significance of the skin exposure were considered to be risk factors. Dr Pett stated that the viral load of a patient was also a consideration and that transmission is greatly reduced if a patient has an undetectable viral load. Dr Pett stated that “normal hygiene would reduce transmission and condoms would further reduce the risk”.

31 Dr Pett agreed that there are higher rates of memory loss in patients with HIV dementia, but that in such circumstances, a therapist would use his or her clinical judgment and interview the patient individually in detail to assess suitability for the treatment. Dr Pett considered that a policy that excluded treatment to people with HIV, because of the possibility of developing dementia and incapacity to follow instructions is unreasonable.

32 Dr Pett stated that the Applicant is a highly intelligent person, very responsible and extremely well-informed, who disclosed his HIV status prior to obtaining treatment. She knows him to be meticulous with excellent standards of hygiene. Dr Pett stated that it is a rare person, who is HIV positive, who would knowingly want to infect others and persons with HIV should not be discriminated against or criminalised. She noted that Caverject Impulse has an approved warning that the product does not protect against sexually transmitted diseases and that condoms should be used. In her view, it is not reasonable to deny injectables to person with HIV.

33 Under cross-examination Dr Pett conceded that breaches of the skin could occur in the vagina or the rectum during intercourse. She also conceded that there may be more bleeding if the patient were on blood thinners such as aspirin or warfarin.

34 Dr Pett also conceded that condoms do fail and they could ride up and come off the person, but that this is much less likely if they are used properly. Dr Pett confirmed her view that a blanket policy excluding treatment to HIV patients is not reasonable, and that penile injection therapy does not pose a public health risk.

Dr Brian Lonergan

35 Dr Lonergan confirmed his statement evidence to the Tribunal. He confirmed that he has worked as a contractor for the Respondent for eight years. His usual practice is to do the consultation over the telephone. He agreed that it was not appropriate for a nurse to overturn the decision of a doctor, especially in a situation where the doctor had weighed up the public health risks.

36 Dr Lonergan told the Tribunal that he had previously worked for 15 years in the casualty department of a hospital in Johannesburg, South Africa. He was involved in teaching students and had seen many thousands of patients with full-blown HIV/AIDS. He stated that in South Africa dementia in HIV patients is common and that this condition affects their judgment. Dr Lonergan stated that no one can predict whether the current treatment for HIV will continue to be effective. He stated that he would not personally prescribe injectables to a person with HIV. He stated that it is an infectious disease and that it is an incurable virus. His view is that a person who is HIV-positive should abstain from sex, unless the person is in a relationship with another person who is HIV positive.

37 Dr Lonergan told the Tribunal that condoms are not 100% effective in preventing the spread of the virus and that even if blood at the injection site is wiped away, the virus may still remain on the skin. He stated that the entire responsibility falls on the doctor.

Dr Berry

38 Dr Berry confirmed her statement evidence and that she has been a registered medical practitioner since 1977 and employed by the Respondent for four years. She stated that she has no specific qualifications in the treatment of HIV.

39 Dr Berry stated that the Respondent’s policy is a contentious issue but that the principal issue is the presence of microscopic blood. She stated that the Respondent’s policy in respect of patients with HIV is very conservative and that, if she were not employed by the Respondent, there may be situations in which he may prescribe injectables to patients with HIV, as long as risk factors were carefully considered. She agreed that an infected party would have to come into contact with the broken skin of a non-infected party and that a condom might not adequately cover the injection site.

40 Dr Berry told the Tribunal that she took part in the discussion in which the Respondent’s policy was formulated. She did not consider it to be an unreasonable policy, but she agreed that it was inappropriate that a nurse overturned a doctor’s decision.

Dr Omar

41 Dr Omar told the Tribunal that he was contracted to the Respondent. He told the Tribunal that he had no specialist qualifications in the treatment of HIV or other infectious diseases. He told the Tribunal that the medical literature states that there is a risk of increase in transmission if persons with HIV are prescribed injectables. He stated that he would not give injectables to a person who is HIV positive.

Dr Balafas

42 Dr Balafas told the Tribunal that he has been a registered doctor since 2000 and employed by the Respondent for 13 years. He said that he made his decision to prescribe the injectables to the Applicant as a result of his interview of ‘TU’. He stated that the conversation he had with the Applicant took about 7 or 8 minutes, during which ‘TU’ disclosed his HIV status. Dr Balafas told the Tribunal that he discussed barrier protection with him. He was satisfied that the Applicant would use condoms and would act cautiously. Dr Balafas stated that he was satisfied ‘TU’ was capable of taking the necessary precautions.

43 Dr Balafas said he believed that there were circumstances in which patients who were HIV positive should not be prescribed injectables, but he also stated that being HIV positive was not an absolute contra-indicator. Dr Balafas told the Tribunal that a sexually active person with HIV may be a risk to public health, but not if the person takes precautions, such as using condoms and generally practices safe-sex. He told the Tribunal that he was not familiar with NSW Public Health policies.

44 Dr Balafas’ notes of his interview with ‘TU’ on 4 December 2008 were tendered and admitted into evidence in the proceedings. The notes are recorded to be as follows:

ED [erectile dysfunction] for past 2 years. Tried Viagra, Levitra & Cilais. Levitra the best, OK response, s/e’s >hangover feeling. Has been using Caveject (sic) for past 3/12 with fairly good response – 75% erection lasting 30-40 mins. Denies penile changes/scarring/nodules/bends. HIV positive for 25 yrs, non active at present. Type 2 diabetic for 6 years. Barretts disease, Osteoporosis. Currently havin (sic) testosterone injections 3/12.

Dr Vaisman

45 Dr Vaisman is the Chief Executive Officer of the Respondent. He said that the company had been operating for 17 years and that its primary function was to treat sexual dysfunction in men and women. He stated that this was the first case of this kind that he had experienced. He said that the general consensus with the other doctors was not to prescribe injectables for men who were HIV positive.

46 Dr Vaisman told the Tribunal that all of the doctors who carried out work for the Respondent were independent contractors. He stated that the Respondent provided a service to the doctors and to the pharmacy. He said that Nurse Karen Baker, an employee of the Respondent, raised a personal opinion that injectables should not be prescribed to persons with HIV and that he agreed with her. He advised her to talk with Dr Balafas and he called a general meeting with all of the doctors. He said that as a result of that meeting, the Respondent now has a policy because it is considered to be a public health issue. There is no guarantee, in his opinion, that a person who is HIV positive would have protected sex.

47 Dr Vaisman agreed that the Applicant’s willingness to disclose his HIV status demonstrated that he was a responsible person. Dr Vaisman denied the existence of any policy prior to the Applicant applying for treatment and he denied that he instructed the doctors what to do.

Nurse Karen Baker

48 Nurse Karen Baker gave oral evidence at the Tribunal hearing by telephone. The Respondent relied on an affidavit sworn by Nurse Baker dated 21 April 2010 and its attachments, which she adopted on 17 May 2010, the third day of the hearing. In that affidavit Nurse Baker stated that she has been a registered nurse for more than 20 years and that prior to working for the Respondent, she worked in the emergency department of a large metropolitan Sydney hospital on a full-time basis. Nurse Baker stated that she was employed by the Respondent from November 2007 to August 2009 as the Nursing Manager, in charge of all of the nurses.

49 Nurse Baker stated that on 20 December 2008 she received a telephone call from Dianne Holman, one of the nurses employed by the Respondent. She stated that Ms Holman raised a concern with her about a patient, ‘TU’, because the patient was HIV positive but had been prescribed injectable medication. Nurse Baker stated that she said to Ms Holman words to the effect of:

Please advise the patient that I will call him when I am in the office on Monday. I will speak to Dr Balafas and senior staff when I am in the office. Please leave a copy of the file on my desk.

50 On her return to work on the following Monday 22 December 2008, Nurse Baker spoke to Dilip Shrestha, who was one of the Respondent’s Senior Managers, about the issue. She stated that Mr Shrestha instructed her to contact Dr Balafas, which she did. She stated that she told Dr Balafas that she was concerned that patient ‘TU’ was HIV positive and had been prescribed injectable medication. She stated that she told him that “this could be an issue for the company in terms of liability and with the issue of public health”.

51 Nurse Baker stated that Dr Balafas told her to contact the NSW Department of Health and to then to speak with him. Nurse Baker stated that she telephoned the NSW Department of Health and was provided with information on “Duty of Care” and “Public Safety” when dealing with HIV patients. She stated that she then telephoned Dr Balafas as well as the other doctors within the company. Nurse Baker stated that Dr Balafas agreed that the patient should not be having injectable medication and that he authorised her to call the patient and advise him of this. Nurse Baker stated that she then discussed the issue again with Dilip Shrestha and it was confirmed that HIV and Hepatitis C patients should not be prescribed injectable medication because it was not in the interests of public health and safety to do so.

52 Nurse Baker attached to her affidavit a number of articles and published information, which referred to the spread of HIV through sexual contact and which stated that, even if a patient has an undetectable viral load, transmission is still possible. Nurse Baker referred to a recorded case of transmission to a Health Care Worker from a person who had an undetectable plasma viral load.

53 Nurse Baker stated that she then telephoned ‘TU’ and advised him that, due to his HIV positive status, he was not suitable to have any further injectable treatment from the Respondent and that he was to be referred to the refunds department for a refund.

54 Nurse Baker stated that she believed the Respondent’s policy of not supplying HIV and Hepatitis patients with injectable medication is not discriminatory, because HIV is a highly infectious disease and the refusal to supply is reasonably necessary to protect public health.

55 Nurse Baker stated that she then assisted the Respondent in the preparation of the Nursing Manual together with Chad Cooper, a Senior Nurse. She stated that all of the Respondent doctors provided input. She stated the final version was endorsed by Dr Vaisman, the Chief Executive Officer of the Respondent. Dr Vaisman holds numerous overseas qualifications in sexual health and has had extensive experience in treating sexual health matters.

56 Attached to Nurse Baker’s affidavit were the following documents:

-NSW HIV/AIDS Database, Communicable Diseases Branch of the NSW Department of Health – “HIV in NSW, 2008” which documents the number of new cases of HIV infection in NSW in 2008. The document states that 75% of cases were homosexually acquired, 20% heterosexually acquired 4% acquired through injecting drug use. The document recorded the conclusion that “Homosexual acquisition is the most common exposure for HIV infection and highlights the importance of promoting safe sex practices and regular testing among this group”.
-An article from Aidsmap written by Michael Carter dated 18 January 2008, bearing the title “Balance of evidence continues to show: undetectable viral load in blood does not equal zero infection risk”. This article discusses a review article analysing the results of 19 studies concerning the correlation of HIV in blood and semen. Mr Carter stated that the investigators recommended the use of condoms and other risk-reduction strategies, because HIV transmission is possible even if a patient has an undetectable viral load in his semen and that HIV viral load levels in the blood and semen are related but are not equal. Mr Carter stated that it is not possible to determine how infectious an HIV-positive individual is on the basis of his blood viral load unless the extent of the association between viral load in blood and semen is determined. Mr Carter also reported that “treatment non-adherence increases viral load and unprotected sex involves a risk of sexually transmitted infections”.
-Extracted information relating to protocols for infection control in the health care setting regarding “Needlestick and other blood or body fluid incidents”. Part 23.3.1 refers to the human immunodeficiency virus (HIV). It states that epidemiological and laboratory studies suggest that injury with a device visibly contaminated with blood, injury with a hollow bore needle that has been placed directly in an artery or vein of the source patient, deep injury to the exposed person, and a source patient with advanced HIV disease or high viral load, may be factors associated with an increased risk of HIV transmission. It is noted that there has been at least one case of transmission to a health care worker from a person with an undetectable plasma viral load.
-Extracted information relating to blood-borne viruses in respect of infected health care workers and students from a document bearing the title “Infection control in the health care setting”.

57 At the hearing Nurse Baker was subjected to some cross-examination over the telephone. During the course of the cross-examination it became apparent that she would need to be present in the hearing room because the cross-examination required that she be shown some documents on which the Applicant relied. Nurse Baker was asked to attend the hearing. She agreed to do so and the hearing was adjourned until later that same day. Later the Tribunal was told that she had been involved in a motor vehicle accident and could not attend that day. Her evidence was adjourned to another day.

58 The hearing resumed on 23 July 2010. On that day Nurse Baker did not attend but the Respondent’s legal representative produced a letter from Dr Charles Seiner, Consultant Psychiatrist, dated 15 July 2010. It stated as follows:

Karen is currently depressed and unable to work or attend court to give evidence for a previous employer, which I believe to be unnecessary and will cause further undue stress on Ms Baker.

This has prevented her from working since the 5 ^th of July 2010 and I will be reviewing her again on Thursday July 29 ^th regarding her ability to return to work.

59 The Respondent decided that it would only rely on the evidence given in the proceedings by Nurse Baker thus far, which included her affidavit and attachments. Accordingly, the Tribunal proceeded to finalise the hearing without the benefit of any further evidence from Nurse Baker.

Findings and Reasons

60 There is no dispute that the Applicant has a disability, which is his HIV-positive status, and that this is a “disability” within the terms of section 4(1)(b) of the ADA. There is no dispute that HIV status is covered by the reference “the presence in a person’s body of organisms causing or capable of causing disease or illness”.

61 There is no dispute that Nurse Baker, with the authority of Dr Vaisman, the Chief Executive Officer of the Respondent, refused the Applicant treatment on the ground of his disability, thereby calling into consideration the provisions of section 49M(a) of the ADA, which provide that “it is unlawful for a person who provides for payment or not goods or services to discriminate against a person on the ground of disability by refusing to provide the person with those goods or services”.

62 There is no dispute that the act of refusal of treatment occurred on 22 December 2008, when Nurse Baker contacted ‘TU’ and informed him that he was not suitable to have any further injectable treatment. There is no dispute that this refusal of the provision of services amounted to less favourable treatment on the ground of the Applicant’s disability, than someone without the Applicant’s disability would have received.

63 The Respondent is vicariously liable under the provisions of section 53 of the ADA for the acts of its employees. Section 53(1) provides as follows:

An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee , either expressly or by implication, to do the act.

64 The Respondent does not dispute this. There is no dispute that Nurse Baker was an employee of the Respondent at the relevant time, being 22 December 2008. Indeed, the evidence of Dr Vaisman, Chief Executive Officer, was that he endorsed Nurse Baker’s view that injectables should not be given to persons with HIV and set in train a meeting at which a policy was formulated to exclude HIV patients from penile injectable treatment. The Tribunal is satisfied that by virtue of the operation of section 53 of the ADA, the Respondent is vicariously liable because it, through Dr Vaisman, authorised Nurse Baker to commit the act of discrimination.

65 The Respondent’s defence was based solely on the provisions of section 49P of the ADA, which provide as follows:

Nothing in this Part renders unlawful discrimination against a person on the ground of disability if the disability concerned is an infectious disease and the discrimination is reasonably necessary to protect public health.

66 There is no doubt that HIV is a serious infectious disease and because of its nature and the potential for widespread infection has implications for public health.

67 In assessing whether the refusal of the service was “reasonably necessary to protect public health”, the Tribunal must examine the risks involved to the public at large and balancing these with the rights of an individual not to be subjected to discriminatory treatment. Section 49P imposes a test of “reasonableness” when a decision has to be made whether a particular act of discrimination is necessary to protect public health. “Public health” is a reference to the general health and well being of a community.

68 In Beattie (on behalf of Kiro and Lewis Beattie) –v- Maroochy Shire Council (1996) HREOCA 40 (20 December 1996) the Honourable William Carter, QC, considered the equivalent provision at section 49M in the Commonwealth legislation, the Disability Discrimination Act 1992, which is cast in similar terms. That case concerned a narrow issue, being whether the decision to exclude an unvaccinated child from a child-care centre was reasonably necessary to protect public health. In considering the question of public health, Commissioner Carter stated:

Whilst the health of any individual may be determined by individualistic matters of lifestyle and personal characteristics, the public or general health of a community will almost invariably be determined by matters of public hygiene and other features of life in a society which will determine the level or quality of health in that community, irrespective of the personal characteristics of the individual.

The incidence of serious infectious disease in a community is a matter relevant to public health. From experience one knows that an individual or a group of persons may fall victim to some ailment which by its very nature is said to be infectious. The illness in one person may be the source of infection in another. The seriousness of the illness and the virility of the process of infection may be such as to affect the health and well being of the wider community. On the other hand, the level of morbidity in the case of a less serious infectious illness may be seen not to raise public health issues because it is within the capacity of the individual to take appropriate remedial or preventative action.

Again, public health, as distinct from matters of private health, will raise issues of social responsibility which have to be grasped and addressed by government and semi-governmental authorities, as well as by individuals. Whilst the state of one's own health will to some extent be the responsibility of the individual and within his or her own control, matters of illness and disease may arise in a community in epidemic proportions which can only effectively be addressed by the so-called health authorities in the community and will, as a matter of community responsibility, need to be addressed because of the widespread and serious consequences for the good of the whole community. The possibility of the spread of serious infectious illnesses and diseases fall into this category, and is a matter which raises issues of public health which need to be addressed in the best interest of the community as a whole.

69 Each act of discrimination must be considered on its own individual merits. As stated in “The National Guidelines for the Management of People with HIV Who Place Others at Risk” endorsed by the Australian Health Ministers’ Conference dated 18 April 2008, “people with HIV should not be quarantined or excluded from social or sexual activities”.

70 The Respondent submitted that there is a risk to public health because of the possibility of the spread of an infectious disease. It was submitted that if it provided a treatment that enabled a person with HIV to have sexual contact with another person in circumstances where there may be contact with the blood of the person with HIV through the use of injectables, then this was a risk to public health and that accordingly, the discriminatory treatment, being the refusal of services, was reasonably necessary to protect public health. The Respondent relied on the evidence of general practitioners with specific expertise in men’s sexual health. Not one of these medical experts had any specific expertise in the treatment of HIV/AIDS.

71 In contrast, the Applicant relied on the specialist expertise of Dr Lowy, who is a physician with specific expertise in men’s sexual health and has treated patients with HIV/AIDS, Dr Pett, who is an Infectious Disease Physician with specialist expertise in HIV/AIDS and Dr Ron Penny, Immunologist and AIDS specialist.

72 These specialists are the Applicant’s treating specialists. They know him and have expressed high regard for him. Their evidence consistently states that ‘TU’ is an intelligent and responsible person who has the capacity to follow instructions.

73 Dr Penny’s unchallenged evidence is that there is no significant risk to public health if the person with HIV pays meticulous attention to hygiene and prophylaxis.

74 Dr Pett’s unchallenged evidence is that the needle used in the penile injection treatment is a small bore 25 gauge needle and that the amount of blood drawn is miniscule. With normal hygiene the injection site would be cleaned of any blood and according to the Applicant, it is at least 20 minutes before the Applicant would come into sexual contact with his partner because that is how long it takes for the treatment to work. In addition, the unchallenged evidence of the Applicant is that he uses a condom during sexual relations. The evidence shows that the Applicant is a highly intelligent and well-educated person who understands his responsibilities in respect of his HIV status and would not knowingly place any sexual partner at risk. Indeed, this is the assessment that was made by Dr Balafas in his first consultation with the Applicant. Furthermore, the Applicant’s disclosure of his HIV status to Dr Balafas is evidence of his integrity and his concern to act appropriately.

75 Although Dr Pett conceded that a breach of the skin could occur in the vagina or rectum during intercourse, the evidence from Australian Government Department of Health and Ageing, March 2007, “The National Guidelines for Post-Exposure Prophylaxis after Non-Occupational Exposure to HIV” shows that the highest risk of exposure occurs “when there is percutaneous exposure to a large volume of blood, which also contains a high titre of HIV”. The information also demonstrated that there is an increased risk being “where there is either exposure to a large volume of blood or exposure to blood with a high titre of HIV”, but no increased risk where there is neither exposure to a large volume of blood nor exposure to blood with a high titre of HIV”.

76 This means that not only must there be a breach of the skin but, for either an increased risk or high risk to exist, there must also be exposure to a large volume of blood with a high titre of HIV. There is no increased risk where there is neither exposure to a large volume of blood or blood with a high titre of HIV.

77 The unchallenged evidence shows that the Applicant has an undetectable viral load and that the amount of blood drawn from the injection puncture is miniscule. Furthermore, the evidence shows that the penile injection treatment medication does not take effect for a period of 20 minutes by which time, with appropriate hygiene measures the blood is cleaned away and there is no more bleeding. Moreover, ‘TU’s evidence is that the puncture site is covered by a condom. According to the expert evidence relied on by the Applicant, these measures collectively are sufficient to greatly reduce any risk of transmission to very small.

78 The Respondent relies on material attached to Nurse Baker’s affidavit, which states that there is a risk of transmission with an undetectable viral load and that condoms are not 100% effective. The status of the material on which the Respondent relies however, is of unknown academic origin and appears to be anecdotal. This is contrasted with evidence from eminent specialists in infectious diseases and specifically, HIV. The Tribunal prefers the expert evidence of the Applicant’s doctors because they are specialists in the relevant field and they have been treating ‘TU’ for many years and are familiar with his disability and the way in which he conducts himself. Furthermore, the articles attached to Nurse Baker’s affidavit show that the use of condoms and safe–sex practices are considered to be risk reduction strategies and that safe-sex practices will reduce transmission of HIV.

79 Furthermore, the Tribunal notes that the “National Guidelines for the Management of People with HIV who place others at risk” states that “management of the risk of transmission by most people with HIV is best managed through access to information, education and resources for the prevention of transmission and HIV treatment services”. As stated earlier in this decision ‘TU’ is well-informed, well-educated and responsible with no sign of dementia.

80 The onus is on the Respondent to establish the defence in section 49P.

81 Having considered all of the evidence, the Tribunal is satisfied that the refusal by the employees of the Respondent to provide ‘TU’ with penile injection therapy treatment was not necessary to protect public health because the risk of the Applicant spreading HIV to another person or into the community at large is minimal.

82 The Respondent’s case was based on the claim that the existence of any risk (however insignificant or remote) would be sufficient to attract the defence set out in section 49P. Although it is true that ‘TU’ has HIV, he has an undetectable viral load, which is said to be a sign of how infectious he might be. The Tribunal is satisfied that he is not highly infectious. Additionally, he is an intelligent and responsible person. Given the narrow gauge of the needle, the puncture site is small and any quantity of blood drawn would be miniscule. He has careful hygiene practices and he practices safe-sex using a condom and covering the puncture site with a condom. All of these factors add up to a significant reduction in any risk of transmission. As stated earlier in this decision, the information from the NSW government and the health care system provides useful guiding principles in respect of the management of the risk of transmission. This material shows that if care is taken, and there is limited exposure, the risk significantly reduced to minimal.

83 The Tribunal is not satisfied that the Respondent has discharged the onus of establishing that the act of discrimination was reasonably necessary to protect public health.

84 The Tribunal therefore finds that the Respondent, through the actions of its employees, discriminated against the Applicant in refusing to provide services on the ground of his disability, and that it thereby contravened the legislation.

Relief

85 The Applicant sought damages for loss suffered due to the Respondent’s conduct being for loss of consortium, psychological pain and suffering and embarrassment.

86 There was no evidence led in relation to the claim for loss of consortium and accordingly, the Tribunal cannot assess any loss in respect of that claim.

87 The Tribunal is satisfied that it is appropriate that there be an award for general damages for the act of discrimination, to cover matters such as hurt, humiliation and injury to feelings, because there has been a contravention of a statutory right to not be discriminated against on the ground of disability in the provision of services. Furthermore the Tribunal is satisfied that the real reason behind the discriminatory act was a fear of being sued and that the primary motive was not to protect public health. The Tribunal has based this conclusion on the evidence of Dr Vaisman, Nurse Baker and Dr Lonergan, all of whom gave evidence of the potential to be sued.

88 As acknowledged by Wilcox J in Hall –v- Sheiban (1985) ALR 503 at 543, the task of determining the appropriate level of damages in a case of unlawful discrimination is difficult:

….damages for such matters as injury to feelings, distress, humiliation and the effect on the complainant’s relationships with other people are not susceptible to mathematical calculation…To ignore such items of damage simply because of the impossibility of demonstrating the correctness of any particular figure would be to visit an injustice upon the complainant by failing to grant relief in respect of a proved item of damage.

89 ‘TU’ gave evidence that he was embarrassed and hurt by what had happened to him. The Tribunal is satisfied that ‘TU’ was treated disrespectfully and accepts that he would have felt significantly embarrassed when informed that a service, for which he had been assessed and accepted by a doctor, was now being refused to him because of his disability by a nurse. This would have no doubt been a sensitive matter for the Applicant and in the Tribunal’s view was handled discourteously and abruptly by the employees of the Respondent without any regard for the personal feelings of the Applicant.

90 In addition, the Tribunal accepts that he would have felt humiliated by the way he was treated because he was initially told that the refusal was based on new laws. This was a spurious reason and the real reason was only disclosed to him at a later time.

91 Furthermore, he was not immediately given a full refund, which only added insult to injury and exacerbated the hurt and humiliation.

92 The Tribunal is satisfied that the appropriate amount of compensation is $30,000 given that the Tribunal is able to award up to $100,000 in general damages. The Tribunal is satisfied that 30% of this amount is appropriate in all of the circumstances of the case.

1.The Tribunal directs the Respondent to pay $30,000 to ‘TU’ within 28 days of this decision.

2.The Tribunal also directs the Respondent to refund in full the amount of $1995.00 to ‘TU’ with credit to be given for any payment already made in this regard.