Wood v Calvary Hospital
[2005] FMCA 799
•16 June 2005
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WOOD v CALVARY HOSPITAL | [2005] FMCA 799 |
| HUMAN RIGHTS – Disability discrimination. |
| Human Rights & Equal Opportunity Commission Act 1986 Disability Discrimination Act 1992 |
| Applicant: | JUDITH WOOD |
| Respondent: | CALVARY HOSPITAL |
| File Number: | CAG 27 of 2004 |
| Judgment of: | Brewster FM |
| Hearing dates: | 14 & 15 April 2005 |
| Delivered at: | Canberra |
| Delivered on: | 16 June 2005 |
REPRESENTATION
| Counsel for the Applicant: | Mr Blank |
| Solicitors for the Applicant: | Howes Kay Halpin, Solicitors |
| Counsel for the Respondent: | Mr McCarthy |
| Solicitors for the Respondent: | ACT Government Solicitor |
FEDERAL MAGISTRATES |
CAG 27 of 2004
| JUDITH WOOD |
Applicant
And
| CALVARY HOSPITAL |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application brought by the applicant pursuant to section 46PO of the Human Rights and Equal Opportunity Commission Act 1986. That section provides that where a person complains to the Commission of unlawful discrimination and the complaint is terminated by the Commission, that person has a right to apply to this Court for relief.
The applicant complained to the Commission that she was the victim of unlawful discrimination on the part of the respondent. I will refer to the respondent as "the hospital" in this judgment. The unlawful discrimination the applicant complains of is discrimination under Part 2 of the Disability Discrimination Act 1992. She claims that the hospital discriminated against her by refusing to provide her with a service, namely the provision of home visits under a scheme called Calvary At Home.
The relevant legislation
A refusal to provide services is covered by section 24(1) of the Disability Discrimination Act. This section says as follows:
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the person's disability or a disability of any of that other person's associates:
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to another person.
Discrimination is defined, for the purposes of this case, in section 5(1) of the Act. This provides as follows:
For the purpose of this Act, a person (discriminator) discriminates against a person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or not materially different, the discriminator treats or would treat a person without the disability.
Section 10 of the Act deals with cases where the conduct complained of was motivated in part by the aggrieved persons disability and in part by other reasons. It provides as follows:
If:
an act is done for 2 or more reasons; and
one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act)
then, for the purposes of this Act, the act is taken to be done for that reason.
If I were to find that there had been unlawful discrimination in this case the hospital would rely on subsection (2) of section 24 by way of a defence. That subsection reads as follows:
This section does not render it unlawful to discriminate against a person on the grounds of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.
The meaning of the term "unjustifiable hardship" is addressed in section 11 of the act. That section does not attempt to provide a comprehensive definition of the term, but provides as follows:
For the purpose of this act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:
(a)the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and
(bthe effect of the disability of a person concerned; and
(c)the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and
(d)in the case of the provision of services, or the making available of facilities - an action plan given to the commission under section 64.
The facts giving rise to the alleged discrimination
The claim arises out of a visit by the applicant to the hospital on
1 October 2002. Much of what happened on that occasion is common ground. However in one important respect the evidence of the applicant and a nurse employed by the hospital, Ms Gillian Hazleton, differs. I will discuss this aspect of the evidence and make findings in relation to it in due course.
It is common ground that on 1 October 2002 the applicant attended the emergency department of the hospital. She was suffering from pneumonia. She was attended to by Dr Wong who consulted with a Dr Khoo. Dr Wong prescribed the treatment of intravenous antibiotics to be given daily for three days and then a course of oral antibiotics. The applicant was to be under the care of Dr Khoo. Dr Khoo proposed that the applicant be admitted to the hospital as an inpatient. The applicant, however, wanted to be in a scheme called "Calvary at Home". This was a scheme whereby people can be treated by the hospital without having to be admitted as an inpatient. There are two ways in which this can be done. One of the scheme’s programs involves the patient staying at home at all times and being visited by a nurse for treatment. The other program involves the patient living at home but visiting the hospital for treatment from time to time.
After the applicant was seen by Doctors Wong and Khoo she came under the treatment of a nurse at the hospital, Ms Philippa Kim. Ms Kim had been asked to take some blood from the applicant and to insert a cannula. When Ms Kim spoke to the applicant about this the applicant said to her that she was formerly an intravenous drug user and for those reasons there was no point in attempting to find a vein in her arm. Subsequently the applicant was seen by Ms Hazleton who took a history from her. The applicant told Ms Hazleton that she had been an intravenous drug user in the past but that she had not used such drugs for some five years.
The applicant says that she had requested to be admitted to the Calvary at Home scheme because she suffered from agoraphobia and she was caring for her granddaughter at the time. She had previously used the service in 1997. She said that she requested that all treatment take place at her home. She said that the nurse she spoke to left the room and then, when she returned, said to her words to the effect:
You will not be able to be treated at home. You will need to attend the emergency department for treatment rather than be treated at home. We cannot offer you home visits because of your past history of drug abuse. Some people who use drugs might get to know that nurses are attending a patient on a home visit. The nurse would be at risk from these people, they might be attacked to get drugs and needles.
The applicant says that she became very upset at being told this.
Ms Hazleton's version of the applicant's request was somewhat different. She says that the applicant did not request home visits but said words to the effect:
I want to visit the hospital every day for my injections. I don't want to be admitted to hospital as an inpatient as I look after my grandchild.
Ms Hazleton said that she then went to consult the manager of the Calvary at Home scheme, Ms Janet Watts. She says that she discussed the applicant's suitability for admission to the scheme. She says that Ms Watts told her that the home visits part of the scheme was closed to new admissions due to staff shortages. She said that Ms Watts spoke to her about the applicant’s past history as an intravenous drug user and the risks that this presented for nurses going to her home. She said that Ms Watts told her that there had been problems with the applicant in the past due to her aggression and that this also posed a risk to nurses visiting her home. She more or less agrees with the applicant as to the terms of the conversation that she had with her after she left Ms Watts’ office.
If Ms Hazleton's version of events is to be accepted the applicant's case fails at the outset. There could be no unlawful discrimination because she had never requested the service which she claimed was denied due to discrimination.
It is difficult to resolve the difference in the evidence of the applicant and Ms Hazleton. I believe Ms Hazleton was a truthful witness and was trying her best to recall the events of the night. The clinical notes taken tend to support her version. Notwithstanding this however, with some hesitation I accept the evidence of the applicant. I find it difficult to understand why Ms Hazleton, knowing as she then did that the applicant had a history of aggressive behaviour, should tell her that she could not avail herself of a service which she had never requested because of her intravenous drug use. This would have been a gratuitously hurtful statement likely to humiliate the applicant and likely to provoke an aggressive response.
I have one other comment on the evidence. The applicant signed a form which contained a reference to home visits being impossible due to past intravenous drug use. The applicant denies that this was written on the form when she signed it. The inference would be that Ms Hazleton wrote those words after the document was signed. I am satisfied that Ms Hazleton did no such thing. I think it more likely that the applicant did not properly read the document before she signed it.
Ms Watts gave evidence in the matter. She said that she was familiar with the applicant. The applicant had been admitted to hospital on a number of occasions in the past and had a history of aggressive behaviour. The hospital’s records concerning past admissions corroborate this. She says that she assessed the applicant as being unsuitable for the Calvary at Home program involving home visits for three reasons. These were:
a)The applicant had a history of intravenous drug use. It is the policy of the hospital to refuse home visits in such circumstances because of the potential risk to visiting nurses.
b)The applicant was morphine dependent. She believed this also posed a risk to any nurse visiting her.
c)The applicant had a history of aggression and that this posed a risk to any nurse visiting her.
Ms Watts confirmed that all this was academic in any event because, as she had indicated to Ms Hazleton, the home visits program was closed due to staff shortages.
Discussion
The hospital accepted that the applicant was a person suffering from a disability. This was both in relation to her past intravenous drug use and also her morphine dependency.
Counsel for the hospital submitted that there was no discrimination in this case because the applicant was not going to be accepted into the program whether she had a disability or not. This was because, as I indicated, the home visits program was not accepting new entrants. He cited the example of two blind children seeking to gain admission to an under six years of age football team. In the example one of the children was under six and the other was aged ten. It was submitted the ten-year‑old could not bring himself within the terms of the Act because he was ineligible for the selection on the grounds of age irrespective of his disability.
Counsel for the applicant submitted that the fact that there were no vacancies in the program did not defeat her claim because of section 10. He submitted that what was involved was a refusal to provide a service for two or more reasons one of which was his client’s disability.
I think there is force in the submission of counsel for the hospital.
It seems to me that there must be a service available to be offered before that service can, in any meaningful sense, be said to have been refused. In my opinion, the applicant's case is not saved by section 10. In my view, it is meaningless to speak of the hospital refusing to provide its services for two or more reasons. It did not have a service that it could offer the applicant and therefore did not have a service which it could refuse to provide to her. Telling the applicant that it could not provide home visits because of her disability was an unfortunate, gratuitous and hurtful statement. But in effect what it was saying to the applicant was that if it had had a service available it would have refused to provide it to her.
I will modify the example given by counsel for the hospital to provide a more apposite analogy. In this example I will assume the aggrieved child was under six years of age and blind. In this example I will postulate the spokesman for the club telling the child that (a) there were insufficient children under six interested in playing for the club and so the club was not fielding an under six team that season and (b) that in any event, even if it had been fielding a team, it would not have allowed the child to participate because of his disability.
In this example the club would not, in my opinion, be liable in an action for unlawful discrimination because it had no service to refuse. It would not, in my opinion, affect the legal situation had it not informed the child that it was not fielding an under six team but simply gave his blindness as the reason for its decision. That is in essence what happened in the present case. The hospital did not inform the applicant that it had no service to provide but told her that it was refusing the service because of her disability. In my opinion that omission does not affect the legal situation.
I therefore find that section 24 of the Act does not apply in this case.
In addition, in my opinion, the applicant does not satisfy the test laid down in section 5. She was not treated less favourably than a person without a disability. Any person seeking home visits under the scheme that evening would have been treated exactly the same way as the applicant. All such people, disabled or not, would have been refused the service.
It is therefore unnecessary for me to consider whether or not the hospital would have a defence of unjustifiable hardship under subsection 24(2). I had considered discussing this but I have decided that it would be inappropriate for me to do so. In the circumstances it would amount to no more than gratuitous judicial advice which might or might not accord with the view of any other federal magistrate who might be faced with a claim by a person in the position of the applicant who was refused home visits under the Calvary At Home scheme where such visits were available. The hospital will have to take and rely upon its own legal advice as to whether, in such circumstances, it would be liable for a claim of unlawful discrimination.
Conclusion
I therefore propose to dismiss the application. Normally costs should follow the event. See for example Batzialas v Tony Davis Motors [2002] FMCA 243. I cannot envisage any factors in this case which would lead me to depart from the general rule. However there may be some matter of which I am unaware or have overlooked. Accordingly I will not take out Orders for 14 days. If nothing is heard from the applicant in that time I will take out Orders including an order for costs. If requested within that time I will re-list the matter to hear the applicant as to why I should not do this. If counsel for the hospital would prefer to participate in any such hearing by telephone that can be arranged if requested.
I certify that the preceding twenty-nine (29) paragraphs are a true copy of the reasons for judgment of Brewster FM
Associate:
Date: 16 June 2005
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