IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
DISABILITY DISCRIMINATION ACT 1992
DENNIS MAHONEY QC
Number of pages - 38
SYDNEY, 1-5, 31 March, 1, 19-20 April 1999(hearing), 23 December 1999 (decision)
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
See 7. Conclusion.
DENNIS MAHONEY QC
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to s.87 of the DDA that the name of the complainant or any information that might enable him to be identified must not be published.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
(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.
(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.
(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.
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.
In the circumstances the complaints should be dismissed. I do not think it appropriate that other orders be made.
The Hon. Dennis Mahoney QC