T v Ability Options Limited
IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
DENNIS MAHONEY QC
No. H98/136
Number of pages - 38
SYDNEY, 1-5, 31 March, 1, 19-20 April 1999(hearing), 23 December 1999
(decision)
#DATE 23:12:1999
Appearances
Ms Kate Eastman of Counsel instructed by Ms Rachel Francois of the Legal Aid
Commission (NSW) for the Complainant
Ms Erin Kennedy of Counsel instructed by Mr David Fullerton of Shepard &
Shepard for the Respondent
Order
See 7. Conclusion.
DENNIS MAHONEY QC
1. INTRODUCTION
The complainant, T, was cared for by the respondent, Ability Options Limited
("Ability Options"), at one of the premises conducted by it. Ability Options
arranged for the complainant to be transferred to a nursing home because, as it
thought, it was necessary to do so for his proper care and supervision. It
thought that he required 24 hour care and supervision and it did not provide
such care and supervision for those at its premises. T has now claimed that,
because of what it has done, Ability Options has discriminated against him
contrary to the relevant legislation.
In a complaint dated 19 August 1998, the complainant alleged that the
respondent has discriminated against him in three ways: in the performance of a
Commonwealth program within s.29 of the Disability Discrimination Act 1992 (Cth) ("DDA"); in the respect of the provision of services within
s.24 of the DDA; and in respect of the provision of accommodation within s.25
of the DDA.
The complaint was investigated by Mr Chris Sidoti, the Acting Disability
Discrimination Commissioner. Commissioner Sidoti formed a view that the
complaint could not be settled and on 16 December 1998 referred the matter to
the Human Rights and Equal Opportunity Commission ("the Commission") for
inquiry pursuant to s.76(1) of the DDA. The Commissioner also provided to the
Commission a report of 163 pages that relates to inquiries made by him into the
matter which was placed in evidence before me as an Exhibit.
At a directions hearing in this matter on 2 February 1999, I made a direction
pursuant to s.87 of the DDA that the name of the complainant or any information
that might enable him to be identified must not be published. The complainant
for the purposes of this matter will be referred to as "T".
The complaint came before me in March 1999 and the inquiry extended over nine
days. Each party has been represented by Counsel. Ms Kate Eastman has appeared
for the complainant and Ms Erin Kennedy for the respondent.
Detailed affidavits or witness statements and other written material has been
filed in this matter. Oral evidence has been given by a number of witnesses
and there has been substantial and detailed cross examination for the
transcript of the evidence given orally extends over hundreds of pages. There
is in addition a large amount of written material in evidence before me.
As Hearing Commissioner, I am required to hold an inquiry into the complaints
which have been referred to the Commission pursuant to s.79(1) of the DDA and, inter alia, to make findings and (insofar as I am empowered to do so by
s.103 of the DDA) make orders. It is proper to record that I have had the
assistance of Counsel during the matter and I have derived considerable
assistance from what they have done and the documents which they have prepared.
In order that what is to be dealt with may be reduced to proper dimensions,
Counsel have prepared outlines of the oral submissions that they have made and,
as agreed, I have been able to deal with the matter essentially by reference to
those submissions and the material referred to in them.
2. RELEVANT LEGISLATION
The provisions of the DDA so far as they are relevant are as follows:
5 Disability discrimination
(1) For the purposes of this Act, a person
(discriminator) discriminates against another 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 are not materially different, the
discriminator treats or would treat a person without the disability.
(2) For the purposes of subsection (1),
circumstances in which a person treats or would treat another person with a
disability are not materially different because of the fact that different
accommodation or services may be required by the person with a disability.
24 Goods, services and facilities
(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 other 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 the other person.
(2) This section does not render it unlawful to
discriminate against a person on the ground 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.
25 Accommodation
(1) It is unlawful for a person, whether as
principal or agent, to discriminate against another person on the ground of the
other person's disability or a disability of any of that other person's
associates:
(a) by refusing the other person's application for
accommodation; or
(b) in the terms or conditions on which the
accommodation is offered to the other person; or
(c) by deferring the other person's application for
accommodation or according to the other person a lower order of precedence in
any list of applicants for that accommodation.
(2) It is unlawful for a person, whether as
principal or agent, to discriminate against another person on the ground of the
other person's disability or a disability of any of the other person's
associates:
(a) by denying the other person access, or limiting
the other person's access, to any benefit associated with accommodation
occupied by the other person; or
(b) by evicting the other person from accommodation
occupied by the other person; or
(c) by subjecting the other person to any other
detriment in relation to accommodation occupied by the other person; or
(d) by refusing to permit the other person to make
reasonable alterations to accommodation occupied by that person if:
(i) that person has undertaken to restore the
accommodation to its condition before alteration on leaving the accommodation;
and
(ii) in all the circumstances it is likely that the
person will perform the undertaking; and
(iii) in all the circumstances, the action required
to restore the accommodation to its condition before alteration is reasonably
practicable; and
(iv) the alteration does not involve alteration of
the premises of any other occupier; and
(v) the alteration is at that other person's own
expense.
(3) This section does not apply to or in respect
of:
(a) the provision of accommodation in premises if:
(i) the person who provides or proposes to provide
the accommodation or a near relative of that person resides, and intends to
continue to reside on those premises; and
(ii) the accommodation provided in those premises is
for no more than 3 persons other than a person referred to in subparagraph
(a)(i) or near relatives of such a person; or
(b) the accommodation is provided by a charitable or
other voluntary body solely for persons who have a particular disability and
the person discriminated against does not have that particular disability; or
(c) the provision of accommodation in premises where
special services or facilities would be required by the person with a
disability and the provision of such special services or facilities would
impose unjustifiable hardship on the person providing or proposing to provide
the accommodation whether as principal or agent.
29 Administration of Commonwealth laws and programs
It
is unlawful for a person who performs any function or exercises any power under
a Commonwealth law or for the purposes of a Commonwealth program or has any
other responsibility for the administration of a Commonwealth law or the
conduct of a Commonwealth program, to discriminate against another person on
the ground of the other person's disability, or a disability of any of the
other person's associates in the performance of that function, the exercise of
that power or the fulfilment of that responsibility.
3. THE COMPLAINT AND HOW IT HAS BEEN DEALT
WITH
The complaint arises in the following context. Since 1987 T has lived and had
care and supervision in premises owned by Ability Options. Since 1993 he has
lived and had care and supervision in premises at 90 Junction Road, Winston
Hill, New South Wales. The care and supervision provided by Ability Options
was provided during part only of each day and he did not have care and
supervision overnight. In early 1998, T's condition deteriorated to the extent
that the respondent considered that he needed 24 hour care and supervision.
Ability Options did not provide 24 hour care and supervision to those in the
Junction Road premises or in any other relevant premises. It, therefore,
arranged for the complainant to live in other premises, the Mayfair Nursing
Home ("Mayfair"). In those premises 24 hour care and supervision was provided
to him.
It is claimed that T did not wish to leave Junction Road and that once he was
at Mayfair he wished to return to Junction Road. This claim is disputed. But,
however this be, the complaint has been made, that by arranging for the
complainant to live at Mayfair and/or by refusing to allow him to resume living
at Junction Road, it has unlawfully discriminated against T on the ground of
his disability within the terms of the sections to which I have referred.
This proceeding illustrates how far the Australian parliament has gone to
prevent discrimination against persons having a relevant disability, the
lengths to which what it has provided for this purpose can be taken, and the
extent to which the compassion of those concerned with the complainant, on each
side of the present proceeding, has extended.
T is a 52 year old man who has severe disabilities. He is effectively blind.
He cannot or can hardly walk and uses a wheelchair for a great deal of the
time. He has severe arthritis and a Parkinsonian tremor and other physical
difficulties. T is described as having a "moderate" intellectual disability.
That description does not, in my opinion, convey the extent of his disability.
One of his medical attendants said, and I accept, that his intellectual
capacity is at the level of a five year old child.
The circumstances in which, since 1993, T has been living in Junction Road have
been described in detail in the material before me. Ability Options is a
non-profit organisation which is supported essentially by funds provided by
government. In 1976 Ability Options was founded for the purpose of caring for
persons with an intellectual disability, all or most of whom had previously
lived in institutional care facilities. It sees it function as providing not
merely a place in which such persons may live but also care and support and
training appropriate to their condition.
Following the "Richmond Report", the New South Wales Government followed a
program of reducing the accommodation provided in institutions for inter
alia persons with an intellectual disability who could live in the
community. In this context, Ability Options concerned itself with two groups
of people: those who had been involved with the Handicapped Person Service as
part of Rydalmere Hospital; and persons who had previously been cared for in
Cumberland Hospital. The respondent or its predecessor identified a number of
people as appropriate to live in a community setting. T was one of a group of
such persons who had come from Cumberland Hospital. In 1987 he moved from
Cumberland Hospital to a group home conducted by the respondent or its
predecessor. In 1993 the complainant and three other residents moved from that
accommodation to the group home at Junction Road.
What Ability Options seeks to do and what it does for persons living in such
accommodation has been dealt with at some length in the evidence before me I
can provide only a brief summary of this evidence. In its formal statement its
sees its role to include the enrichment of the "quality of life through
community presence, choice, confidence, respect and community participation"
and those within its care. It sees those "with an intellectual disability
wishing to receive support" as to be provided with "appropriate services" and
"life experiences". It says:
"the service will endeavour to support people in its accommodation service for
as long as it is required, provided the service is able to meet individual
need. However, if people so require it, the service will support them to move
to more independent or appropriate living situations, based on their person
preference and relevant of need".
The evidence contains details of discussions and reviews of its programs and of
the nature and extent to care which it seeks to provide. I am satisfied that
it, and those engaged in its work, have undertaken a sincere and compassionate
program of care of those for whom it has accepted responsibility. The staff
employed by Ability Options ("Social Educators") assist with cooking, cleaning,
washing, and banking as well as the integration into the community of those in
their care.
The section of the respondent's activities in question on the present
proceeding (described as "Lifestyle Options") involves the provision of
"supported accommodation", with staff support at the group homes from 7.00am
till 7.00pm Monday to Friday and from 7.00am to 5.00pm Saturday and Sunday.
The evidence details the extent of to which and the manner in which the staff
assist the persons living in the group homes with the requirements of living
such as cooking, cleaning, washing, gardening and general social and
behavioural skills. Programs are organised whereby the residents of the group
homes can and apparently frequently do leave the home for entertainment and
other purposes.
Ability Options called in evidence a number of witnesses who described in more
detail what was done at Junction Road for T and for the other persons living at
the premises. This extended beyond the mere provision and maintenance of
accommodation and meals. It involved a real and substantial degree of
compassionate care and supervision.
In order to indicate the nature of the present complaints and the circumstances
surrounding them, I shall refer, initially in a brief fashion, to what
occurred.
By the beginning of 1998 those concerned with the care of T at Junction Road
had reached the conclusion that the complainant could no longer be properly
cared for at those premises. Accordingly they found accommodation for him at
Mayfield. Mayfield has been described as "a nursing home". The nature of the
care, supervision and other services provided at Mayfield has not been detailed
to the extent of that provided at Junction Road. However it is clear that the
care and supervision provided was 24 hour care and, as I infer, was care and
supervision of a somewhat more detailed nature than that which was provided at
Junction Road.
Ability Options claims that T agreed that he should leave Junction Road and go
to live at Mayfield. The complainant - or, more accurately, those who have
taken up his cause - claim that T did not consent to leave Junction Road and go
to Mayfield. They claim, but the respondent does not accept, that the T now
wishes to return to Junction Road. I shall refer subsequently to the
difficulties involved in determining, in relation to a person with the
intellectual disabilities which the complainant has, how far one can be
satisfied that there is a real wish or intention of this kind. However this be,
it is in relation to T's leaving Junction Road and his return to those premises
that the present complaints have been made.
The parties in evidence have detailed at some length events which surround
those giving rise to the present complaints. In order to understand what now
is claimed by witnesses, it is necessary to refer to these previous events. It
is not necessary that I deal with them in detail. However, they show the nature
and extent of the protections and the remedies which have been provided to
prevent discrimination against persons having a relevant disability and how
they have been availed of in the present dispute.
In July 1996, while T was still at Junction Road, Ms Sharon O'Brien was
appointed as his Civil or Citizen Advocate. This appointment was made after a
hearing of an application made for that purpose. Ms O'Brien had previously
been employed by Ability Options. She knew the complainant during her
employment and, having heard her evidence and seen her in giving it, I accept
that she has a genuine feeling for the complainant. I infer that she believes
that he is not able alone to care properly for himself in all aspects of his
life and that he needs the assistance such as herself.
The relationship between Ms O'Brien and those employed by the respondent who
were concerned with the care and supervision of T was not at all times
completely harmonious. Ms O'Brien was, in some respects, critical of Ability
Options. It is proper to record that she left the employment of the respondent
in difficult circumstances. The respondent had criticised her discharge of her
duties and she denied the validity of the criticism. Legal proceedings had
been had between them. It appears that these were determined by a form of
agreement. After she left the respondent's employment, Ms O'Brien continued her
interest in T and continued to see him from time to time.
When she became aware that the complainant was to be or was accommodated at
Mayfield, Ms O'Brien protested on his behalf and, inter alia, on 23
March 1998 involved the Intellectual Disability Rights Service. On 1 April 1998
proceedings were commenced under the Guardianship Act 1988 (NSW) and
there was a contested inquiry under that legislation and in due course a
guardian, a departmental officer, was appointed for T. From time to time
several departmental officers have been involved with T's position. These
officers have taken an active part the present proceedings. I have taken into
account the position of two relevant officers and the effect to be given to
their views and conclusions in their guardianship role and otherwise.
Other steps have been taken in relation to T's position. On 20 May 1998, the
Guide Dog Association was involved and on 28 May 1998, the Royal Blind Society
was involved. Proceedings were initiated by Ms O'Brien or others involved on
T's behalf before the Residential Tenancy Tribunal of NSW. It was contended
that the complainant's position in Junction Road was that of a tenant. The
proceedings before the Residential Tenancy Tribunal were still pending when the
present proceeding was before me and apparently have not yet been concluded.
The procedures available under the present legislation have been fully and
skilfully availed of in support of the contentions made by or for T.
The complainant's position has been investigated by staff of the Commission.
As I have indicated, it has been investigated by Mr Chris Sidoti, then the
Acting Disability Discrimination Commissioner. I infer that Mr Sidoti
attempted to deal with the matter by conciliation and that unfortunately his
attempts were unsuccessful. By 16 December 1998 it was apparent that
conciliation would not be successful. The file dealing with the matter, placed
in evidence before me, extend over some 163 pages.
The present proceedings that came before me in March 1999. There was a
preliminary hearing in respect of the matter. Formal discovery of documents
were sought. Detailed affidavits or witness statements and other written
material were filed. The formal hearing has extended over a long period, in
substance of the order of nine days. Each party has been represented by
counsel: Ms Kate Eastman has appeared for the complainant and Ms Erin Kennedy
for the respondent.
Oral evidence has been given by a number of witnesses and there has been
substantial and detailed cross examination. The transcript of the evidence
given orally extends over hundreds of pages. In addition the written material
in evidence before me or referred to me for attention comprises several hundred
pages.
4. THE EVIDENCE
During the hearing a substantial number of factual disputes have arisen. I
shall not detail them: no sufficient purpose would be served by doing so. It
is not necessary that I record each dispute, state what is involved in each of
them and detail my findings upon them and my reasons for these findings. This
proceeding is, subject to the terms of the legislation, to be conducted with
appropriate informality and brevity. I shall "state" my findings of fact on
matters which warrant specific mention and make such observations in relation
to them as may be appropriate to explain them. Insofar as issues of
credibility have been raised, my findings will, I believe, appear sufficiently
from what I say. In some respects I shall however make specific observations
touching credibility.
As I have said, the evidence presented has been voluminous and has extended
over a very wide area. It is, therefore, appropriate to make some observations
in relation to the evidence and the extent of it.
On one view, the factual issues in the present proceedings are within a small
compass: whether in the transferring to Mayfair and/or in refusing to take him
back, Ability Options treated T less favourably and so discriminated against
him within the legislation. At first sight, the amount of evidence tendered in
this proceeding may appear out of proportion to those issues. This has
resulted, at least to a substantial extent, from the form of the legislation,
the nature of the proceedings as they are to be conducted under it, and the
understandable desire of counsel to pursue in detail all of the issues
appropriate to be pursued.
The proceedings are to be conducted with an appropriate informality and the
rules of evidence do not apply to them: see section 98(1)(a) of the DDA. As a
Commissioner, I am no doubt to have regard only to material which is probative
of matters relevant in the proceedings. But, in order to do this, I must
determine for the purpose of the proceeding what are the relevant matters and
whether the evidence tendered from time to time is probative of them. The
determination of each of these matters can give rise - and in the present case
has given rise - to considerable difficulty. The result has been that it has
been necessary or appropriate to address the evidence which has been
tendered.
In ordinary judicial proceedings, frequently provision is made for formulating
issues to be determined. Once issues are formulated, it is then necessary to
decide whether a particular item of evidence, when tendered, is relevant for
such issues. Rules, including rules of evidence have been evolved to enable
this to be done.
In proceedings of the present kind, issues are not formulated in any formal
way. No doubt counsel will be expected to assist in the formulation of the
issue to be determined. But as a matter of practice it is, in my experience,
often difficult to determine that material tendered is not relevant to what has
to be determined to the extent that it (and often the line of inquiry which it
foreshadows) should be excluded.
A further difficulty arises, actually or potentially, in deciding whether a
particular item of evidence when tended is probative of a relevant fact. More
accurately, difficulty arises in ruling that the material tendered (in the line
of inquiry which it foreshadows) is or cannot be probative of a relevant fact.
Under the rules of evidence, guidelines have been established to assist in the
making of decisions of this kind. The rules of evidence do not apply to a
proceeding of the present kind, accordingly the determination of what is or can
be probative of a relevant fact is determined by the purpose of it and in the
light of the legislation.
There are, I believe, facts or matters which, in the ordinary conduct of
affairs, may be regarded by a reasonable person as probative of a fact which,
under the rules of evidence would not be accepted to be such. Thus, to take
some examples, the fact that a person, otherwise reliable, has asserted a fact
or made a self-serving statement may well, in the ordinary conduct of affairs,
be regarded as probative of the fact in question. It is not clear whether, in
determining what is probative in proceedings of the present kind, these or
other matters beyond what is acceptable in conventional judicial proceedings
may be considered. If the concept of what is probative extends beyond that
accepted under the conventional rules of evidence, it is the more difficult to
rule that material tended is or cannot be probative of a relevant factor.
For reasons such as these I have, in the present proceeding, found it difficult
to exclude evidence which counsel have seen fit to tender in support of their
contentions. This has led to the time taken in the present proceeding being
longer than that that would have been taken in an ordinary judicial
proceeding.
In saying this I do not make a criticism of Counsel or those who have acted in
what they believe to be the parties' interests. I do not doubt that in
tendering and pressing issues and material, Counsel acted in accordance with
their instructions. However, in my opinion, it is in the interest both of the
public and of the parties to proceedings such as this that the position of a
complainant and a respondent and the issues to be determined be clarified as
soon as practicable so that, at the hearing, the issues and the evidence of use
can be confined accordingly.
I come now to the weight which should be assigned to the evidence of the
witnesses. A large number of witnesses gave evidence and evidence was, as I
have indicated, given in written and oral form. There were conflicts in
relation to a number of important matters. I shall confine my observations at
this stage to the general acceptability of the main witnesses who have given
evidence in respect of the essential issues.
It was agreed at the hearing that T himself would not be called to give
evidence. He did not sit in the hearing room. Facilities were provided for
him in a separate room where, by use of audio devices, he was able, if he
chose, to hear what was being done. He was, I understand, in that room from
time to time but not during the whole of the proceedings. This was no doubt a
proper argument and one which both took into account T's intellectual and
emotional capacities. As a result of this arrangement, I am not able to base my
conclusions as to his disability, skills and capabilities upon my assessment of
evidence from him. I must depend upon the evidence of others. This is of
significance in relation to some of the important matters which I am required
to determine.
I am required to determine what T could and could not do and how he acted and
did not act at or about the time when he left Junction Road and at or about the
time when subsequently, as it is claimed, he expressed the wish to leave
Mayfield and return to Junction Road. In this regard, the evidence of those
who were dealing with the complainant and were directly concerned with him upon
a daily or other basis is of significance.
In this regard, I place weight upon the evidence of Mr Stanley David Kelly. I
accept him as a witness of credibility. He was an impressive witness who, in my
judgement, tried as best he could to give accurate evidence. He may have had
understandable difficulty in relating the details of precisely what was said
and done on some earlier occasions but I accept that he desired to give an
accurate account, that he had the capacity to do so and that what he said was
substantially correct.
Mr Kelly had been the chairman of the directors of Ability Options for some
time. He had worked with the organisation over many years. He had no
financial interest in the organisation or the outcome of the present proceeding
and was involved in the respondent's affairs essentially because (as it
emerged) of the disability of his daughter. I accept that he had a particular
affection for T and regarded him, as was suggested, as "a member of our
family". He had seen and cared for T on a regular basis over 10 years or more.
He was, I think, able because of his knowledge of T to understand what he
wanted and how far he was able to express it. I accept that he endeavoured to
obtain proper information so to the complainant's wishes in the present matter
and that he obtained such information as enabled him to base the judgements
that he formed.
I accept also the credibility and general accuracy of the evidence, of Mr Jim
Buultjens, the general manager of the respondent. He has a masters degree in
management and a graduate diploma in economics and an honours degree in
economics. He had worked for the respondent for more than 11 years, had worked
in homes similar to Junction Road and had worked, as it was described, "in a
hands-on position".
Witnesses who were more in touch on a regular basis with T were Ms Christine
Flanagan and Ms Marguerite Murphy. Ms Flanagan was the manager of a division
of Ability Options for a number of years. She knew the complainant "well" and
had been involved with his care in a management capacity since she commenced
with the respondent. Ms Murphy was directly responsible to her. In general
she met once a month with those concerned with the care and supervision of
particular individuals and spoke informally with them "at least once a week".
But at the time here relevant she spoke to Ms Murphy about two or three times a
week specifically about T and spoke with the complainant himself about once a
fortnight. She was, I accept, a credible witness who had ample opportunity to
make observations of the complainant at the relevant times.
The evidence of Ms Murphy is, in my opinion, of particular significance. She
was a "carer" of some experience. She had been concerned with the care of
children with hearing and visual disabilities before being employed by the
respondent. She commenced employment at Junction Road about the same time as
the complainant went to live there and had been concerned directly on a
day-to-day basis with his care over a period of five years or more.
Accordingly, she had ample opportunity to observe the facts of which she
spoke.
Ms Murphy was a person whose evidence I accept. In my opinion she had T's
interests at heart, had no reason to give evidence which was not accurate and
gave evidence in a factual matter which was impressive as to the detail
recounted. I observed her in evidence and in cross-examination. The way in
which she gave evidence assisted me in the assessment of her evidence and in
deciding whether I should accept it.
Ms Sharon O'Brien gave evidence for the complainant. As I have indicated, she
had, at an earlier time, worked for the respondent. The respondent dismissed
her because it believed her performance of her duties had been less than
satisfactory. She was reinstated, subject to conditions, as the result of
proceedings before the Industrial Commission of New South Wales pursuant to a
compromise of those proceedings. She left the employment of the respondent
shortly afterwards. She had formed a close relationship with T and had spent a
considerable time in speaking with him, taking him to and from Junction Road,
and generally assisting him. She did this voluntarily and without
remuneration. She attended to what she saw as T's interests at Westmead
Hospital, Mayfield, and the Guardianship proceedings which were held. She has
taken an active part in the present proceedings. She was in court for a good
deal of the time.
The reasons alleged for her dismissal from the employment of the respondent
were of some seriousness. It is proper to record in fairness to her that I
have made no determination as to the correctness of the allegations made. She
left the employment of the respondent of her own free will.
I accept that Ms O'Brien is a person who has an affection for T and has done
what she has done in what she regards as being his best interests. I approach
her evidence upon the basis that she had endeavoured to give an accurate
account, as far as her recollection extends, of the matters of which she has
spoken.
However, having observed her in giving oral evidence, I think that her
enthusiasm for the complainant's interest may have affected her accuracy and
objectivity. I treat her evidence with reserve and, having observed her in
giving evidence, I do not find her evidence on important matters convincing.
Where there is conflict, I prefer the evidence of the respondent's
witnesses.
5. FINDINGS OF FACT
I come now to the findings of fact that I have made. I shall detail the
findings in relation to some of the main matters involved. Other findings will
appear generally from what I have said in these reasons.
At the relevant times T had a number of disabilities which I have already
detailed, within the meaning of that term in s.4(1) of the Act. I note that
the definition of "disability" is framed of terms of the existence and
non-existence of functions, parts of the body, organism, malfunctions of the
body and disorders or similar matters affecting learning and thought and
similar processes. The definition is concerned, in its terms, with the
existence of such matters and not, as such, with (as I shall describe them)
the signs and symptoms produced by them. I have described T's disabilities in
the main in terms of the signs and symptoms produced and not by reference to
the underlying conditions which have produced such signs and symptoms. In the
present proceedings, nothing turns on this: see generally the decision of Sir
Ronald Wilson in X v McHugh, Auditor General of Tasmania (1994)
Australia and New Zealand Equal Opportunity Law and Practice at 77,308
(92-623).
The relationship which existed between T and Ability Options was such that in
the relevant sense the respondent had assumed and had an obligation to the
complainant in respect of his care and the supervision. I accept this portion
of Ms Eastman's submissions. It is not necessary for me to state exhaustively
the content or extent of that obligation but it was one that involved making
some provision for his care and supervision. If Ability Options saw that he
required a particular kind of care and it was within its reasonable capacity to
give it and it did not do so, it would prima facie this extent be in
breach of that duty.
I shall in summary form the following as important findings of fact. At the
relevant times, namely, at the end of 1997 and during the early part of 1998,
the complainant continued to be subject to the disabilities to which he had
previously been subject. However there had been, as it was described in detail
by Ms Murphy, "a deterioration" in him. The disabilities continued but the
signs and symptoms which he displayed by reason of the existence of them
increased in severity. What he could and could not do and what he was apt to do
had become such that the degree of care and supervision required had become
substantially greater. If he was left alone, particularly at night, he was
more likely to suffer harm of various kinds and was more likely to cause
unacceptable disturbance to others in Junction Road. Because of the duty which
the respondent had assumed to the complainant, the respondent was, in my
opinion, obliged, at least morally and possibly legally, to take steps to
ensure additional care and supervision was provided to him.
Because of this deterioration the complainant came to need care and supervision
beyond what had previously been sufficient for him. He needed care and
supervision, as it was described, on a 24 hour basis. During the times when he
was not subject to care and supervision, there was, I believe a real risk, of a
substantial kind, that he might suffer harm to himself and/or might disturb the
others in Junction Road to an unacceptable extent.
The respondent investigated the complainant's condition and the deterioration
of it in a way that was proper and it was properly responsible of its
obligations to him.
Insofar as consent was, from time to time, within T's capacity to give he
consented to his transfer from Junction Road to Mayfield.
The transfer of the complainant to Mayfield was of advantage to him. It was a
necessary and appropriate method of dealing with the consequences of the
deterioration in his condition and with the signs and symptoms which, is the
result of the deterioration of his condition, appeared. In the sense to which
I shall refer, his transfer to Mayfield involved treating him more favourably
and not less favourably then he would have been treated if he been had been
kept at Junction Road. The transfer was to his advantage and not to his
detriment.
T has said that he wishes to be returned to Junction Road. How that statement
came to be made is not clear: it is not clear whether and to what extent, in
making it, T was influenced by what was said to him by others. I accept that
the statement was in the fact made. However, I am not satisfied in and insofar
as the complainant had a capacity to make a decision of this kind, he had the
capacity or information to enable a decision to be made as to what was in his
best interests or as to what his condition required him to have. I shall not
pursue in detail the question whether, as the result of the appointment of a
guardian, wishes or decisions made by T himself are of any and if any what
relevance.
I come now to deal in more detail with the factual issues.
5.1 Relationship between T and Ability
Options
As I have said, Ability Options had accepted the complainant into its care. It
is not suggested that it was legally or morally obliged so to do. But it had
done so. It had cared for him for a number of years and had continued to do
so. In these circumstances it had, in my opinion, an obligation in respect of
his care and supervision. It is not necessary or desirable for me to attempt to
categorise this obligation in legal terms other than to say that Ability
Options was providing a service to T. Nor is it necessary to mark out the
outer boundaries of it. It is sufficient to say, whether the obligation was
moral or legal, it existed. In the context where the complainant had come to
need 24 hour care and supervision, that obligation required the respondent, to
the extent that it was practicable for it to do so, to see that he had that
degree of care and supervision. It could, of course, have taken the proper
steps to terminate its relationship with the complainant. But if it did not do
so and continued its relationship with him, its obligation extended to
attempting to procure for him that degree of care and supervision. In view
what has been said in argument, I record that by what I have said I do not mean
that the respondent necessarily was obliged to find or, perhaps, to transfer
funds as to enable this to be done. To this I shall refer subsequently.
5.2 Deterioration of T's condition
It is clear T has had, for some years the types of disability or disabilities
to which I have referred: blindness, need to use a wheelchair, arthritis,
Parkinsonian tremor and associated physical difficulties, and intellectual
disabilities. Each of these had, no doubt, an underlying physical cause. They
have been described in various ways in the various documents prepared by the
medical, psychiatric and psychological witnesses. In considering the meaning
of the term "disability" in the legislation, it may be necessary to distinguish
between the underlying causes and (as I have referred to them) the signs and
symptoms which from time to time exist because of them. These signs and
symptoms may vary over time.
In my opinion it is clear that, by the time here relevant, the end of 1997 and
the early part of 1998, T's condition had deteriorated substantially and the
signs and symptoms resulting from his disabilities had increased in severity.
This conclusion is supported by the evidence of a number of the respondent's
witnesses and by written material referring to the discussions which took place
at Junction Road and at Westmead Hospital, as to what should best be done for
T. His condition was reviewed at Junction Road and elsewhere on more than one
occasion. In this regard, I accept, in particular, the evidence of Ms Murphy.
She described in detail T's condition and his signs and symptoms when he and
she first came to Junction Road. In her affidavit, Ms Murphy said:
"7. The respondent originally employed me as a social
educator. I progressed to the position of a team leader, which is now know as
a team facilitator. The position of team facilitator involves me overseeing
the staff at this and other properties. However my current duties involved
mainly supervising staff at this property and others as well my work involving
the Lifestyle Enhancement Program.
8. When I first met the complainant he was a person
with a mild intellectual disability, was blind and suffered from some walking
difficulties. He would often use a walking stick. He had a wheelchair at that
time but rarely used it.
9. He always presented as a person with an
exceptional memory. He would remember things such as staff birthdays, people's
ages, or even the date he had purchased his CD player. He could understand
everything that was said and you could always reason with him. Although he had
the occasional emotional outburst, during which time he would yell at others in
the house, particularly Carol, these were only rare and often triggered by
other residents' moods.
10. The complainant could walk around the house with
confidence and could walk to the car without assistance. I would assist the
complainant with preparing meals and I would have to guide his hands through
the tasks. During the complainant's first two years at Junction Road, he would
have the cooking utensils out ready to cook before the staff arrived on
shift.
11. The complainant would always get himself up and
dressed in the morning. He kept a tidy room with all of this dirty clothes
placed in the washing basket.
12. The complainant never used the wheelchair in the
house. He could walk to the lounge room make himself a drink and make it to
the toilet without assistance"
In her affidavit, she described the deterioration which took place.
"13. During 1997-1998 there was a deterioration in
the complainant's condition. For example, the complainant could no longer make
it to the car without assistance and he no longer had the cooking utensils out
ready to start cooking. The complainant began to forget things such as dates
of friends' birthdays and the current day and date.
14. The complainant was rarely up when I came to pick
him up to go out in the middle of the day. He was sleeping for a majority of
the day and even fell asleep at the dinner table sometimes.
15. The complainant always needed his walking stick
and towards the end of his residence at Junction Road always used his
wheelchair when he (sic) out and sometimes from the house to the car.
16. The complainant would have at least one emotional
outburst per day. These outbursts would often be caused by a belief the
complainant formed that was not founded in any truth. For example, one day he
became very upset when he thought we were going to give him a broken cow for
Christmas. On that occasion he began to wave his stick around and yell and
when I tried to restrain him from hitting with his stick he went to bite my
arm. This had never happened before.
17. When outbursts such as this occurred, Alex in
particular would become very upset. Alex would usually leave the house to sit
on the neighbour's letterbox and cry.
18. In my opinion the other residents of the house
also demonstrated upset at these outbursts.
19. The complainant no longer put his dirty clothes
in the washing basket which meant things were always left on his floor.
20. The complainant was often confused and had
trouble remembering where he had put things and where he had been. He would
often walk in the opposite way to where he said he was going and sometimes go
into Brian's bedroom instead of his own.
21. The complainant became incontinent but would not
wear a pad in the house. This resulted in many occasions of wetting the bed
and not making it to the toilet in time.
22. When I first started working with the complainant
it was important to tell him to sit down when he went to the toilet. During
1997-1998 it was necessary to go with him and supervise him to put his penis
into the toilet.
23. The complainant became very demanding on staff.
I recall that the majority of my shift would be spent with the complainant
alone, attending to his demands and needs. I am of the view that the other
residents' needs were not adequately met as a result. For example, since the
complainant has left, Brian is talking and interacting much more.
24. I cannot recall when we began discussing the
complainant moving into a nursing home. Because I was with the complainant on
a daily basis, the deterioration that I observed saw happened very gradually
(sic). I recall that the respondent employed a new staff member at the
premises and she expressed concern at the complainant's physical state and his
mobility problems."
Mr Murphy's evidence was expanded in her evidence, given orally, both in chief
and in cross-examination.
The effect of the respondent's evidence as to T's deterioration was questioned
in a number of ways. This was done in three main ways: the acceptability of the
witnesses (in particular Ms Murphy) was questioned; it was suggested that the
deterioration could be corrected by correct medication; and it was suggested
that the nursing records negatived the evidence of deterioration.
It was suggested for the complainant that the deterioration in his condition at
the relevant time was due to improper medical treatment. It was, for example,
suggested that the drugs he had taken pursuant to the advice of his medical
attendants from time to time were apt to cause and did cause the signs and
symptoms of which Ms Murphy and other persons attending to him gave evidence.
This suggestion appeared, inter alia, in the evidence of Dr Geoffrey A
Rickarby, a psychiatrist who gave evidence, oral and written, for the
complainant and in the cross-examination of Dr Sergio Martin who at an earlier
date and subsequently nearer the relevant time had been the complainant's
medical attendant.
As I have said, I accept that at the relevant time the complainant was
displaying the signs and symptoms referred to and that his deterioration was
substantial. In the main, the importance of the suggestion that this was caused
by or influenced by wrong medication was relevant essentially to the extent
that it could lead to the conclusion that, if proper medication only was given,
his condition would change, the deterioration would be reversed, and the
perceived need to increase his care and supervision would cease.
These matters were put, inter alia, to Dr Martin. In my opinion, Dr
Martin rejected that view. He dealt with it in cross-examination in a number
of ways. I shall not attempt to detail them. He suggested, for example, that
while the drugs used may have had some such effect as was suggested, it was
necessary to use them because, if they were not used, his conditions and his
signs and symptoms would or might well have been worse. He did not, I think,
accept that by different and more appropriate medication, the complainant's
condition would have been such that 24 hour care and supervision would not have
been necessary.
In a report dated 18 February 1999, Dr Rickarby set forth details of his
interview with T on 12 February 1999 and the conclusion which he had formed
following that interview and his consideration of the material referred to in
the report. The report is a detailed report dealing, inter alia, with
whether the "dementia" referred to was "drug induced". His conclusion was that
it was.
It is proper to give to Dr Rickarby's detailed report careful consideration.
He practices as a "Consultant Psychiatrist" practising, apparently, at his
surgery at Warners Bay. He is a Fellow of the Royal Australian and New Zealand
College of Psychiatrists. He detailed in oral evidence his training and
experience which were significant. It is clear that he directed his attention
to matters which are directly relevant to the present proceedings including,
amongst others, the medication taken by T.
Dr Rickarby's report involves, inter alia, direct or implied criticism
of the views of others who have expressed opinions as to the complainant's
condition. He suggests that the signs and symptoms observed by others were not
those that he observed or were apt to be exhibited by T, and suggested that
those signs and symptoms could or would be diminished or eliminated by a review
of his medications and "an overall coordinated rehabilitation management" of
him. Dr Rickarby was, critical of the opinion of another psychiatrist, Dr
Peter Wurth given on 3 July 1997 as "likely to mislead other people whom (sic)
come to study" T's condition and suggested that had Dr Wurth had the benefit of
the procedures to which he referred "his final summing up then may not have
been potentially misleading to the people reviewing the matter some years down
the track". In referring to Dr Martin's assessment of the complainant's
psychiatric condition, Dr Rickarby concluded that Dr Martin "has clearly
exceeded his range of training and competence". He opined that the medication
given to him "may aggravate his incontinence considerably" and otherwise effect
his signs and symptoms. He saw physiotherapy as a means of improving, for
example, his incontinence and perhaps his mobility. Dr Rickarby's views were
developed in oral evidence given by him by telephone.
I am not convinced that T's condition at the relevant time was due or
substantially due to factors which on correction would have substantially
improved his condition and the signs and symptoms he exhibited. It was of
course necessary that the complainant's medication be kept under review from
time to time and an incorrect combination of drugs might affect his condition.
These matters were put to Dr Martin in his evidence before me. I prefer the
thrust of Dr Martin's explanation to the suggestion that, by altering T's drug
consumption, there would be a significant improvement. Dr Martin suggested, inter alia, that although some of the drugs then being taken by him were
apt to produce undesirable signs and symptoms, the withdrawal of them or the
substitution of other drugs would be apt to produce other unacceptable signs
and symptoms. The thrust of his evidence was, in this regard, that the task of
those supervising T's medication was to chose what on balance would produce the
least worst result. On balance I prefer the views of Dr Martin in this regard.
He had had the benefit of knowing T from a previous occasion when he treated
him. He saw him himself and learned of his condition at the relevant time. I
infer that he knew generally of T's signs and symptoms as seen by those having
the day to day care and supervision of him learning of his condition at the
relevant time.
Dr Rickarby saw T on one occasion only, for "roughly an hour" His conclusion as
to the complainant's then capacity to function and to other matters was, of
course, influenced by what he saw during that interview and upon what he drew
from the written material placed before him. I accept that it is part of the
expertise of a consultant psychiatrist such as Dr Rickarby to form opinions
based, if necessary, upon a single visit and/or such written material. But the
weight to be given to his opinion is, in my opinion, affected by the fact that
he did not have before him other and significant material. Dr Rickarby did not
consult Dr Martin before expressing his conclusions about Dr Martin's opinions.
Perhaps because of the context of litigation he may have decided not to seek
from Dr Martin information as to what the doctor knew of the patient he had
been treating. Nor did Dr Rickarby seek the benefit of the views of the other
person or persons who had been in close contact with T on a day to day basis.
In particular Dr Rickarby did not inquire whether those who had a daily or
other contact with T could provide information which would assist him in
judging whether what he saw of the complainant during the period of his
interview provided a proper basis for the assessment as him. If he had had the
benefit of, for example, the experience of Ms Murphy and of Mr Kelly, it is at
least possible that his assessment would have been different. The way in which
T's signs and symptoms changed and his condition deteriorated, as detailed by
Mr Murphy and other witnesses may well have led him to change or modify his
view as to the significance of medication as a cause of what happened.
When Dr Rickarby gave evidence, Ms Murphy and the other witnesses of the
respondent had not given evidence. In my opinion it is probable that if Dr
Rickarby had had before him the evidence ultimately given by the witnesses,
both in written statements and orally, he would have at least modified his view
that what they said of T's conduct was caused by his medication or that what he
did could have been altered substantially or to necessary extent by a change in
that medication. Some of the effect of that evidence was put to him in
cross-examination and otherwise but, in fairness to Dr Rickarby, it is proper
to record that the full effect of it was not and no doubt could not have been
put to him.
I have had the benefit of seeing Dr Martin in evidence. He has been required,
in the sense, to answer criticism directed to him and I was able to observe
whether the fact of such criticism affected the evidence which he gave. I
believe that Dr Martin endeavoured to give accurate and objective evidence
about the matters on which Dr Rickarby had criticised what he had done or
failed to do. I am satisfied from what he has said that he understood the
problem involved in selecting the proper mix of medicines for T and the need to
balance the benefits and detriments of the medicines that were available. I am
satisfied that he directed his attention to this matter and that the views in
which he expressed in answer to the criticism or suggestions made by Dr
Rickarby were essentially correct. In the end, I do not accept that, the time
of his transfer to Mayfair, a change in medication would have so altered at T's
condition and what he did that he would not have required care on a 24 hour
basis.
I come now to the significance of the "nursing notes" to which Ms Eastman for the complainant, referred at some length, in argument and in her
detailed written submissions. It was submitted, in effect, that because of
what appears in these notes, I should discount the evidence given by those
concerned with T at Junction Road as to the deterioration of his condition and
his signs and symptoms at the relevant times. Ms Eastman has provided a very
helpful summary of what appears in the notes that were kept and the suggestion
has been that the signs and symptoms there recorded differ from those referred
by, for example, Ms Murphy to the extent that the evidence of Ms Murphy and
others should be discounted.
There is considerable weight in this submission. Evidence was given as to what
was or what should have been recorded in the notes. If in relation to the
relevant matters the notes were intended to record and did record all of the
signs and symptoms exhibited by T and if they were intended to record and did
record all that he did, then the evidence of Ms Murphy and others of the
respondent's witnesses cannot be accepted as accurate. To take but one example,
the matters referred to in paragraph 16 of Ms Murphy's written evidence does
not appear in the nursing notes: there is, for example, no reference in the
terms used by her to an incident when he "began to wave his stick around and
yell and when I tried to restrain him from hitting with his stick he went to
bite my arm". This is an example of matters which would have been recorded if
it was intended that the nursing notes record all that occurred and if that
intention had been carried into affect.
I do not accept that, for example, the events referred to in paragraphs 13-23
of Ms Murphy's written evidence did not take place (I have earlier detailed the
terms of these paragraphs). I do not accept that Ms Murphy deliberately
misstated what she there said nor are these things that she would be likely to
mistakenly recall as having happen. Thus, is "sleeping for the majority of the
day and even falling asleep at the dinner table sometimes", is leaving the
house "to sit on the neighbours letterbox and cry" and the need to "put his
penis in the toilet" matters which, I think, either happened or were falsified.
I infer in fact that all of the signs and symptoms were not recorded and that
the condition of persons in Junction Road was dealt with on a less formal
basis. Ms Murphy was cross-examined on matters of this kind. She did not, I
think, depart from the general affect of the evidence that she had given as to
the complainant's condition. Notwithstanding what appeared or did not appear
in the notes, I accept that T's condition was described essentially correctly
by Ms Murphy and by the other witnesses who spoke as to it at the relevant
time.
5.3 Need for T to have 24 hour care
I am satisfied that, the relevant time, T's condition was such as to require 24
hour care and supervision. This question had been considered at some length by
Ability Options and it had had in this regard the assistance of the views of a
number of people over a substantial period. The process by which it had
arrived at its conclusion in this regard is detailed in the evidence. T's had
been considered at the Westmead Hospital by medical and other staff. He had
been examined by Dr Wurth. He had been assessed by the Aged Care Assessment
Team ("ACAT") and his condition had been considered carefully by those of the
respondent's staff who were directly concerned with him. The process by which
the respondent arrived at its conclusion was a proper one and did not involve
relevant discrimination against T.
If T's condition was as Ms Murphy said it was then in my opinion the
conclusions as to the need of 24 hour care and supervision was a correct one.
The description of what he was doing and not doing at the time is detailed.
There was in my opinion real danger that a person in that condition, having the
disabilities that the complainant had, would suffer harm. I think it was
necessary that there be someone available to care and assist him on a 24 hour
basis.
This conclusion was one which, in the considerations of his position undertaken
by them from various viewpoints, was the conclusion arrived at by those
considering T's needs at the time. It was the conclusion of the respondent's
employees. It was the conclusion of Dr Martin and it was, as I understand their
observations, the conclusion of those associated with the Assessment Group and
the persons of the Westmead Hospital who had considered his position.
It is not the view of Ms O'Brien or of others associated with the complainant's
case. I will I trust not be seen as indicating any disrespect for their views
or any criticism of their enthusiasm for T's care in concluding that, having
considered what they have said, I do not agree with them.
I have reconsidered the evidence given by Dr Rickarby in this regard. Towards
the end of his oral evidence, I asked Dr Rickarby questions touching the
matters of this kind. When his evidence concluded, I had formed the impression
that he had agreed that, if (as I have found) T was exhibiting the signs and
symptoms referred to by Ms Murphy and others and if (as I have found) these
were not, as such, due merely to medication, then T required 24 hour care. A
reading of the transcript does not, I think, convey this conclusion as clearly
as in Dr Rickarby's oral evidence when given before me: it is, to an extent,
ambiguous. I have, in concluding the 24 hour care was necessary, based myself
on the evidence given by others. But I believe that my conclusion is confirmed
by the thrust of the evidence which Dr Rickarby gave in this regard.
One further observation may be made in relation to what Dr Rickarby said in
this regard. The evidence establishes, in my opinion, that T required
medication of various kinds. Dr Rickarby thought that, in addition,
rehabilitation therapy was necessary. Although the matter does not clearly
emerge in evidence, I believe the thrust of the views of those attending T, in
and out of the hospital environment, was that the medication he was to take
would be apt to have side effects. Even on the view adopted by Dr Rickarby it
was, I think, necessary to determine whether a different medication would have
produced such effects as, together with the signs and symptoms of his
disabilities, would have made it necessary for him to have 24 hour care. I
think it is probable that on the evidence, whatever the change in the
medication, 24 hour care would still have been necessary.
Dr Rickarby in his evidence appeared to assume, and I think it is probable,
that if the medication was to be changed it would be necessary for there to be
a period of trial during which the effect of the change in medication together
with rehabilitation procedures would be assessed to see whether T's then
condition (requiring 24 hour care) would be changed and to what extent. The
period required for this was not made clear. No doubt he would have to be on
the different medication for a not insubstantial period. But, however this be,
even on this basis the fact remains that at the time he went to Mayfair, he
required 24 hour care.
It was suggested or inferred during the hearing that Ability Options decided
that T needed the care given by Mayfield without proper consideration or for
ulterior purposes. I am satisfied that this is not so. The respondent and
those involved in the discussions from Westmead Hospital and other authorities
directed their attention to what was best for the complainant. The evidence of
Mr Kelly, particularly in re-examination, is evidence I accept. When the
decision was made, it was made with the concurrence of medical psychiatric
psychological and other staff that 24 hour care and supervision of a nursing
home variety was required.
It was not suggested that, outside a nursing home such as Mayfield, 24 hour
care could be given by another organisation so as to avoid such effects of a
nursing home environment as might be detrimental to the complainant's
welfare.
It was suggested in argument that, if it was needed, such care and supervision
could and should be provided by the respondent. I do not accept that this is
so. The respondent did not, in any of its relevant activities, provide this
kind of care. There was a detailed examination of the possibility of 24 hour
activity being undertaken at Junction Road and the costs were examined. It
would, of course, have been physically possible for it to employ staff to be at
the home for 24 hours each day. This would have required the provision of
additional accommodation for such staff and the additional cost would have been
substantial. Its existing funds did not allow the respondent to do that. As I
have said it was a non-profit organisation operating on budgets dependant upon
government grants. The likelihood of additional grants for the purpose was in
my opinion small to non-existent. It would, in the abstract, have been
possible for monies to be found to fund 24 hours services, by, for example,
closing down other facilities depriving other persons of the services which
they are now given, and using the funds saved for such a purpose. But I do not
think that that is something the respondent is required to do.
I have been invited to consider decisions of other tribunals which, it is
inferred, deal with this issue of the respondent's obligation to incur expense
to avoid discriminating against the complainant. I shall, as part of my
consideration, refer briefly to this matter.
The evil to which, in general, the legislation is directed is the fact that
persons with a relevant disability are apt to be treated unfavourably because
of that disability. The legislators were faced with the problem of deciding
what extent they would seek to remove the disadvantage flowing from this and by
what was the remedy to be applied in determining how and to what extent it was
to be removed. There were obviously a number of different answers that could
have been given to this problem, each of which would have provided a different
degree of alleviation of the disadvantage flowing from the disability and each
of which would have operated to do so in a different way, by a different
mechanism, and to a different extent.
The answer adopted by the legislators is that essentially embodied in section 5
of the DDA and its cognate provision. I shall refer to the nature of the answer
adopted and the significance of the choice of it subsequently. But in my
opinion, in deciding any complaint it is important to bear in mind that what is
in issue is not whether the disadvantage alleged could have removed or
alleviated. What is to be determined in each case is whether the answer, the
remedy and mechanism, chosen by the legislators applies to the particular
complaint and what is the result of its application.
In saying this I do not express any opinion as to the objective correctness of
the answer which the legislators adopted or as to whether more or less should
have been done for those with a relevant disadvantage. I express no opinion as
to whether, if the chosen remedy or mechanism should require that money be
expended to remove the disadvantage, the burden of that expenditure should fall
on a particular respondent or upon, for example, the community generally. These
are matters for decision by legislators. They have decided what is to be done
and it is important that their position be adhered to and the remedy or
mechanism which they have chosen be applied accordingly to its terms.
Ms Eastman has, with proper diligence, submitted that if 24 hour care of T
requires that the respondent spend more money, that money should be found and
should be spent by it. She has, properly in the interests of the complainant,
explored ways in which that money could be found. It is no disrespect to her
submissions that I do not detail the material which in this regard she has
placed before me.
For the reasons to which I shall refer, I do not think it is necessary to my
decision of this case to examine in detail the principles which should be
applied in determining whether or to what extent a respondent should expend
money to remove a relevant disadvantage as I shall indicate, this case is to be
decided on a different basis. But in deference to the arguments of Ms Eastman
and Ms Kennedy, I shall refer to some of the issues that arise from what they
have submitted.
Such issues may be considered by reference to an example. I shall assume a
respondent owns an office building, with offices on the ground level and an
upper level. The upper level is accessed only by a normal staircase. A person
with a disability requiring use of a wheelchair seeks to lease an office on the
upper floor. He cannot reach it by the staircase. Does the remedy for his
disadvantage provided by the present legislation mean that the respondent
discriminates against the complainant if he does not provide, for example, a
suitable lift to carry the complainant to the upper floor?
Two things at least may be said. First, if the respondent fails to provide the
lift, does he "treat... the complainant... less favourably than..." he treats
tenants who do not have a disability? If the legislative provision against
direct discrimination be applied according to their terms, he does not. He
treats the complainant not less favourably but in the same way as he treats the
tenants who do not have the disability. The legislation against indirect
discrimination (see section 6 of the DDA) raises different issues. That
legislation requires a determination of, for example, whether leasing an upper
room to a person with a disability "requires... (that person)... to comply with
the requirement or condition" of the kind there referred to. This in turn leads
to the interpretation of "requires...to comply with a requirement or
condition".
Considerations such as these will no doubt be relevant to a case in which the
respondent does not purport to provide specially equipped accommodation of
services. In the present case, the respondent did not purport to provide 24
hour care. Does section 6 and its cognate provisions require a respondent to
provide accommodation or services which it does not seek to provide? Is there a
difference, for this purpose between a case where what the person with a
disability wants requires the respondent to provide a service of a different
kind from that actually offered and a case where what the person with a
disability requires would result in the respondent providing a service of the
same kind but of a different or more expensive kind? If these matters were
necessary to the decision of the present case, my finding would be that the
provision of 24 hour care would, given the context and circumstances of the
present case, be a provision of a services different in kind from that which
the respondent has set out to provide.
Second, it is necessary to consider section 24(2) of DDA and its cognate
sections. (I put aside for this purpose the case advanced by Ms Eastman that
the respondent administers a Commonwealth service and so such a provision as no
application). There is no discrimination if the provision of the service which
the complainant requires "would impose unjustifiable hardship on the person who
provides" the accommodation. Must a lift be provided in a two (or a ten) storey
building if the lessor is the State or a corporation of unlimited means such
that the expenditure of the money or the depreciation in the value of the
building would not cause real hardship to it? I am inclined to the opinion that
section 24(2) may possibly apply even where, as it is put, money is no object
as far as the respondent is concerned.
Section 24(2) poses another problem. In the present case, if Ability Options
were required to cease the provision of services to other occupants so as to
have the money to provide 24 hour care to T, Ability Options as such would
suffer no hardship. Such hardship as would be suffered would be suffered by the
occupants deprived of those services. Is the obligation of a respondent in such
a case unlimited?
I am conscious of what has been said in the decisions of courts and of others
to which I have referred and to which I have been asked to give consideration.
I shall not extend these reasons by a consideration of what they indicate to be
the law. It is, in my opinion, sufficient to say that these matters do not
arise directly for consideration in this matter.
5.4 Capacity of T to make decisions
I do not think it is necessary for me to form a concluded view as to the
capacity of the complainant to make decisions, as to, for example, where he
should live or as to his capacity to understand the factors involved in such
decisions. Dr Martin saw his capacity as that of a five year old child and Dr
Rickarby used the phrase "5 or 6 year old children" in relation to his
functioning. Mr Kelly thought such a description should relate to his
behaviour rather than to his intellectual impairment. In his report of 14
March 1998, Dr Martin concluded that, while T was "not able to manage his
financial or property affairs...he would be able to make his own judgments
regarding his life decisions in the circumstances." Dr Martin indicated that
by that he meant that the complainant was "able to express his likes and
dislikes regarding his accommodation and treatment". I find, however, that his
capacity to make judgements was limited.
I accept that in a limited sense, T was able to form a conclusion as to where
he wished to live and to articulate that conclusion. But I think he was not
able to make a judgement on this matter of a considered or mature kind. Mr
Kelly's evidence in this regard, which I accept, was to the effect that what T
thought and what he would say depended upon or was substantially effected by
the views expressed by the last person who spoke to him.
Those assisting T at Junction Road were I believe conscious of this. The steps
taken by them to explain the necessity for transfers to Mayfield and to
ascertain his subjective reactions to that were significant. I do not accept
that in what they did they acted unreasonably.
As I have indicated, a guardian has been appointed for the complainant. It is
not necessary for me for consider how far that appointment affects the capacity
of the complainant to make decisions or to express wishes or the significance
in law of them. Where legally effective decisions have been made by his
guardian in this and other respects, I take those decisions into account.
However, in the end they do not determine the essential issues for my
determination.
6. FINDINGS OF LAW
As I have indicated, I have, concluded that the transfer of T to Mayfield was
necessary in his own interests, as a means of dealing with the signs and
symptoms which he had come to display and the detrimental effects which might
follow if he was not safeguarded against them on a 24 hour basis. It is
necessary to consider the significance of this in determining whether what
occurred could or did constitute discrimination within the legislation.
What is here in question, is, as it has been described, direct discrimination.
In my opinion this is not a case in which indirect discrimination, the kind
referred to in, s.6 of the DDA, is relevant. The basic concept of
discrimination, as contained in the sections relied upon by Ms Eastman for the
complainant in this case derives from s.5 of the DDA. That section, as
far as is here relevant, provides that a person discriminates against another
person (the 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 are not materially different, the
discriminator treats or would treat a person without the disability In
relation to "accommodation or services", circumstances are not materially
different because of the fact that different accommodation or services would be
required by a person with a disability: s.5(2) of the DDA.
The concept of discrimination has been referred to in a number of cases. I
have had the benefit of argument by Counsel as to the effect of them. I do not
think that it is necessary to detail what has been said in this regard in the
various cases. I shall, of course, endeavour to ensure that the views that I
have expressed accord with what have been there said and decided.
In general, as I have indicated, the concept of discrimination adopted by the
legislature appears to envisage, in this regard, at least two things: that the
question of discrimination arises in a context in which the alleged
discriminator deals or may deal both with a person with a disability and a
person without that disability; and that what is done involves treating an
aggrieved person "less favourably" than the person without the disability would
have been treated. In the present case, Ms Kennedy for the respondent has
submitted that what was done did not involve discrimination within this
concept. Her submission is that the concept of discrimination adopted by the
legislation does not apply in a case such as the present.
In my opinion it does not. There are, inter alia, two reasons for this.
First, this is not a case in which the remedy or mechanism adopted by the
legislature can be applied according to its terms. Properly understood, what
occurred in the present case, does not, I believe, involve a situation in which
the treatment of a person without a disability is in question. In the present
case what occurred was that the complainant, because of deterioration of his
condition, required a particular form of assistance or he would or might well
have suffered detriment. In order to cope that with situation, he was taken to
a place where the necessary treatment, 24 hour care and supervision, could be
given to him. This is not a situation in which the position of a non-disabled
third party has any relevance. To adapt the language of s.5, a person without
a disability would not be "treated" at all and accordingly, the question
whether he would be treated more and less favourable then the person with a
disability cannot arise. Having no disability, the person can have no need for
care and supervision and accordingly the possible treatment of him is not a
matter to be considered.
The matter may be illustrated by an example. Assume a complainant who has in
his body "organism causing disease or illness" within the definition of
"disability". He may require to be taken to a hospital to deal with the signs
or symptoms produced by the disease or illness. Assume that the act of taking
him to a hospital would be to impose a detriment on him or otherwise to treat
him "less favourably" or "unfavourably". He could not, I think, be said to
have been discriminated against because a person without that disability,
disease or illness and its effects, would not be taken to a hospital. In my
opinion the concept of discrimination applies only if in the circumstances the
person without a disability is in fact to be "treated", the person with the
disability is also to be "treated", and there can be a comparison in terms of
"less or more favourable" of the two.
The second matter is, perhaps, another aspect of the same thing. It approaches
the question in a less formal way. The phrase "less favourably" in s.5(1) under
the context in which it is used involves, in my opinion, that the treatment
given to the person with a disability is a detriment to him or, at the least,
is less favourable then the treatment which would in those circumstances have
been given to another person, the person without the disability. But in the
present case, the treatment that the complainant was given, namely transfer to
Mayfield, was the treatment which his condition and his signs and symptoms
required that he have. Thus, if it be assumed that there is another person
whose treatment can be compared with the treatment given to the complainant,
that person would, in the assumed comparison, be given the treatment that he
needed, viz, the same treatment as given to the complainant. A
treatment which is what the complainant needs is not, in the relevant sense, a
treatment which is "less favourable".
In considering complaints under the legislation it is important to bear in mind
the particular circumstances which are in question. As I have indicated, this
is not a case in which a complainant has, for example, simply been deprived of
accommodation or a service or treated unfavourably. The case is one in which
the complainant has been given the service that his condition requires, namely
24 hour care and supervision, and for that purpose he has been taken to
Mayfield. To take a person to a hospital to give him the surgical, medical or
nursing care which, for example, a burst appendix would require is not to treat
him unfavourably in the sense relevant under the legislation.
I have been invited to consider the decision of Mansfield J in A School v
Human Rights & Equal Opportunity Commission 1998 1437 FCA (11 November
1998). In that case his Honour, inter alia, examined the nature of "the
critical question" which arose in that case and the way in which it was to be
approached. He considered the effect of the concept of discrimination embodied
in section 5 of the DDA. In doing so, his Honour referred to some of the
issues to which I have already referred. It is sufficient to say that, in my
respectful opinion, the views that I have expressed are in accordance with the
principles annunciated by his Honour in that case.
6.1 Responses to the submissions made on behalf
of T
I have acknowledged the benefit I have received from the submissions both oral
and written prepared by Counsel. It will be convenient to deal, in order, with
the questions which Ms Eastman, in her written submissions has posed on behalf
of the complainant.
6.1.1 Does the respondent have the responsibility
in relation to a Commonwealth program?
T has based his complaint of discrimination upon three grounds: those contained
respectively in ss.24, 25 and 29 of the DDA. Section 29 renders it unlawful
for a person "who performs any or exercises any power under a Commonwealth law
or for the purposes of a Commonwealth program or has any other responsibility
for the administration of a Commonwealth law or the conduct of a Commonwealth
program to discriminated against another person on the grounds of the other
person's disability...". That paragraph is of significance because, it is
submitted, it provides or admits of no relevant defence. Ms Eastman has
contended that, if there be discrimination within s.29, the complaint is
established.
In the present context, it is alleged that s.29 applies because Ability Options
falls within the phrase "has any other responsibility for the administration
of... a Commonwealth program...".
By s.4(1) "Commonwealth program" is defined to mean "a program conducted by or
on behalf of the Commonwealth Government."
In my opinion, the respondent did not have the conduct of a Commonwealth
program and did not otherwise fall within s.29.
As I have indicated, the respondent is a non-profit corporation conducting its
activities on its own behalf. It is not, in the ordinary sense, an agent or
servant of the Commonwealth government. However it has been submitted that
part of the monies which it receives comes from the Commonwealth government and
for this reason its program is a Commonwealth program.
Ms Eastman carefully detailed the ways in which, in her submission, the
respondent received its finances. She did not contend - at least I do not
accept - that there was a direct payment by the Commonwealth government to the
respondent for purposes detailed by the Commonwealth government or indeed for
the respondents purposes. The suggestion was that, whilst some of the monies
received by the respondent came from the funds of the State government and were
paid to it by the State government, the balance of the monies came from the
Commonwealth government to the State government and were paid by the State
government to the respondent. Reference was made to statutory provisions under
which there was, as it had been suggested to be, "a blocked grant" given by the
Commonwealth government to the State government for the purpose of enabling
organisations to carry out the work which the respondent carries out. It is in
the context outlined by Ms Eastman that, it is contended, it should be
concluded that the respondent conducted its program "on behalf of" the
Commonwealth government.
Counsel have referred to the meaning of "on behalf of" in other context. I do
not think that in the present context the terms extends to include a person or
body whose funds come but indirectly in the sense here explained. Accordingly,
the respondent does not have responsibility in relation to the Commonwealth
program. In view of the conclusions which I have expressed, it is not necessary
for me to examine this matter in the detail that would be required if the
matter turned upon this part of the complainant's case.
6.1.2 Has the respondent refused to provide
services to the complainant because of his disability?
For the reasons to which I have referred it has not. As I have said, what it
did was to assist in making available to the complainant services, at Mayfield,
which he needed and which, at the relevant time, he desired to have. Ms
Eastman has referred in this regard to the complainant's expressed wish to
return to Junction Road. I shall assume against the respondent, without
formally so deciding, that what it had done amounts to a refusal to accept him
back at those premises. But, in the sense relevant to the determination of a
claim of discrimination, I do not think that the respondent had refused to
provide services in the manner suggest. On proper analysis, the concept of
discrimination does not, in the ordinary sense, apply to what was here in
question.
I shall assume that T (or his guardian, in the sense here relevant) requested
the respondent to take him back at Junction Road and that the respondent
refused to do so. It did so because it believed (and, as I accept, the fact is)
that T requires 24 hour care which is not available at Junction Road. In my
opinion the legislation does not require that a respondent give to a disabled
person a service or accommodation of a kind that it is not purport to provide:
it does not require that a respondent create a situation which, in the sense,
did not exist.
In saying what I have said generally in this regard, I do not of course exclude
the possibility that in some circumstances a respondent may be required to
expend money in order to avoid discrimination. A number of the cases which have
been referred to me for consideration so indicate. But, for the reason as to
which I have referred, the nature and extent of the requirement which can be
imposed in this regard need not be finally determined in the present case.
The refusal of the complainant's desire to return to Junction Road, if it be
such, is based, not upon his having a disability, but upon the fact that, his
needs being what they are, cannot be provided for by giving him accommodation
at Junction Road. Accordingly, in the sense here relevant, there has been no
refusal to provide services.
6.1.3 Has the respondent refused to provide the
complainant with benefits of accommodation at the group home because of his
disability?
For the reasons already given, it has not.
6.1.4 Has the respondent evicted the complainant
from accommodation because of his disability?
The complainant was not evicted from Junction Road. I accept that the
complainant wished to go to Mayfield and went there voluntarily.
6.1.5 Has the respondent subjected to the
complainant to a detriment because of his disability by not taking all steps to
facilitate him living at Junction Road?
For the reasons to which I have referred, there was no detriment in the
complainant being provided with accommodation at Mayfield. What was done was,
for the reasons which I have referred, for the benefit of the complainant and
to provide the services which he needed.
6.1.6 If there has been discriminatory refusal of
service would the provision of services or facilities be an unjustifiable
hardship on the respondent?
For the reasons I have given, this question does not arise. If there have been prima facie discrimination, the establishment by the respondent of a
defence would have required that it provide 24 hour care and supervision of the
complainant. To do so would in my opinion have been an unreasonable
requirement. But that is not the statutory test: it is "unjustifiable
hardship". The meaning of "unjustifiable hardship" in this context, as applied
to a corporation of the present kind, is not clear. As I have said it may be
that, by depriving others under its care, the respondent could have transfers
monies to the care of the complainant on a 24 hour basis. In a sense, this may
not be "hardship" upon the respondent but hardship upon those to whom it is
associated. Whether this is a matter which falls within the defences in
question is a matter which requires consideration. For the reasons I have given
it is not necessary to determine it in the present case.
6.1.7 If there has been discriminatory treatment
in accommodation would the provisions of special services or facilities
associated with accommodation be an unjustifiable hardship on the
respondent?
I do not think that this arises, for the reasons to which I have referred.
In the circumstances of this matter it is appropriate that they add the
following. My reasons for decision in this matter were formulated at an earlier
time. Subsequently I was invited by the Legal Section of the Commission to
re-examine the matter and to do so in the light of various decisions of courts
and others to which I was referred. In view of what was referred to me, I have
again examined in detail the evidenture of material placed before me during the
hearing of this matter. In order to prevent misunderstanding, it is proper that
I record that I adhered to the reasons for decision previously formulated by
me. The form of the reasons for decisions set for the above represent these
reasons with some alterations and additions. The alterations and additions do
not involve alterations in the findings of fact or the conclusions of law at
which I originally arrived. However in the circumstances I have expanded some
portions of the reasons which were originally formulated.
7. CONCLUSION
In the circumstances the complaints should be dismissed. I do not think it
appropriate that other orders be made.
DATED IN SYDNEY THIS 23rd DAY OF DECEMBER 1999
___________________________________________
The Hon. Dennis Mahoney QC
Inquiry Commissioner