Tribunal Grants Leave for Take-Away Food Complaint, Denies Escorted Day Leave

The Tribunal granted leave for a patient's complaint regarding unequal access to take-away food but denied leave for the complaint regarding access to escorted day leave, finding that the latter lacked substantive merit.

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: [NAME] v [NAME] [2015] NSWCATAD 11 Hearing dates: 4 November 2014 Date of orders: 22 January 2015 Decision date: 22 January 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: [NAME] Decision: Leave is given for that part of [NAME]'s complaint relating to access to take-away food to proceed. Leave is refused for that part of [NAME]'s complaint relating to access to escorted day leave to proceed. Catchwords: [NAME] – complaint of sex discrimination in the provision of services to [NAME] patients – complaint declined lacking in substance – whether fair and just for complaint to proceed Legislation Cited: [NAME] Act 1977 (NSW) Civil and Administrative Tribunal Act (NSW) 2013 Crimes (Administration of Sentences) Regulation 2008 (NSW) Mental Health ([NAME]) Act 1990 (NSW) Cases Cited: [NAME] v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Category: Principal judgment Parties: [NAME] (Applicant) Justice Health & [NAME] (Respondent) Representation: Solicitors: [redacted] [NAME], Solicitor (Respondent) File Number(s): 1410356

reasons for decision 1. [NAME] is a [NAME] at the [COMPANY]. He complained to the [NAME] of the [NAME] that [NAME] had discriminated against him on the ground of his sex in breach of the [NAME] Act 1977 (NSW). [NAME] alleges that: 1. every 3 months female patients are allowed to order take away food to be delivered to them (such as Kentucky Fried Chicken, pizza or Chinese) to the value of up to $20 but male patients do not have that privilege; and 2. female patients are allowed to go outside the [COMPANY] on escorted day leave but no male [NAME] is allowed that privilege. 1. [NAME] has withdrawn that part of his complaint relating to the use of bicycles by female patients.

2. In previous complaints the Tribunal has appointed a guardian ad litem for [NAME]: Civil and Administrative Tribunal Act (NSW) 2013, s 45(4)(a). I decided not to do so for the purposes of the leave hearing because [NAME] has clearly articulated his complaint.

3. The [NAME] declined the complaint as "lacking in substance" and [NAME] has elected to have it referred to the Tribunal. Before his complaint can go ahead, the Tribunal must give its permission or 'leave'. The test when exercising its discretion is whether it is fair and just in all the circumstances to grant leave: [NAME] Act, s 96; [NAME] v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143.

4. The Tribunal's discretion to grant or refuse leave is 'entirely unfettered' but must be exercised judicially: [NAME] v Administrative Decisions Tribunal of New South Wales & Ors at [30]. [ADDRESS] went on at [38] to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

Access to take-away food 1. It was not disputed that female patients are able to order take-away food once every three months while male patients are not. [NAME] says that while he and other patients have access to the kiosk on the hospital grounds, Kentucky Fried Chicken, pizza and Chinese food is not available at the kiosk.

2. According to the respondent, the privilege was given in order to assess women's pro-social behaviours. As the majority of females do not have unescorted access to the kiosk at the hospital, they do not have the opportunity to sit down and interact with others. Most male patients, including [NAME], have unescorted access to the kiosk. 3. [NAME] does not accept the reason that the respondent gave for treating female patients differently from males. He asserted that the real reason was that the women's facilities are inadequate because acute, sub-acute, rehabilitation and long stay female patients are all housed in the same ward. According to [NAME], the respondent is 'bribing' the women with a 'take-away' night once every three months to encourage them to behave themselves.

Legislative provisions 1. Section 33 of the [NAME] provides that:

1. It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: 1. by refusing to provide the person with those goods or services, or 2. in the terms on which he or she provides the person with those goods or services.

1. Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice.

1. I understand [NAME] to be alleging direct sex discrimination as defined in s 24(1).

1. A person ("the perpetrator" ) discriminates against another person ( the aggrieved person" ) on the ground of sex if the perpetrator: 1. on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or 1. Consequently, in order to prove that the respondent had discriminated against him on the ground of sex in breach of s 33 of the [NAME] Act , [NAME] would have to prove that: 1. the respondent has refused to provide him with a service or has provided a service on certain terms; 2. in refusing those services or providing them on certain terms, the respondent has treated [NAME] less favourably than it treated or would have treated a woman in the same or similar circumstances; and 3. at least one of the reasons for that treatment was that [NAME]'s is a male.

1. The Appeal Panel has recently decided that the classification of inmates under the under the Crimes (Administration of Sentences) Regulation 2008 (NSW) does not constitute a "service" to those individuals by the State of NSW: State of New South Wales v Whiteoak [2014] NSWCATAP 99 (4 December 2014). The conclusion of [NAME] at [217] was that: 1. providing "services" to a person involves making available to the class of persons to which the aggrieved person belongs activities to supply the needs of, to do work for, or to assist or help that class of persons; and 2. when a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant class of persons and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this will amount to "services" being "provided" in the relevant sense.

1. This conclusion supports [NAME]'s case that the respondent is providing a service to supply the needs of patients by giving them access to food from a [NAME] outside the hospital grounds. It is likely that a Tribunal hearing this matter would find that the respondent is providing patients with that service and that is has refused to provide it to [NAME]. It is also likely that a Tribunal would find that, in that respect, the respondent has treated [NAME] less favourably than it treats female patients. There may be an argument as to whether the circumstances of the male patients are the same or not materially different, from women's circumstances.

2. The final question is whether at least one of the reasons for the treatment is because [NAME] is male.

3. The respondent has submitted that the reason for the policy is to assess women's pro-social behaviours. That reasons is not so apparent that it would persuade a Tribunal hearing this case. Evidence would be needed to explain what, on the surface, appears to be a discriminatory policy. In the circumstances, I consider it fair and just for this aspect of [NAME]'s complaint to go ahead so that evidence can be adduced as to the basis for what appears on the surface to be discrimination against male patients.

Access to escorted day leave 1. According to the respondent, escorted day leave for [NAME] patients is a new program introduced in 2014. Patients are entitled to that leave if the Mental Health Review Tribunal (MHRT) determines that it should be granted. Those decisions are generally made on the recommendation of the [COMPANY] but a [NAME] could apply for such leave.

2. Prior to 15 March 2014 when [NAME] lodged the complaint with the [NAME], two female patients had been granted day leave by the MHRT. Since then the respondent says that two men have been approved for day leave. [NAME] only knows of one 70 year old man who has been approved. According to the [COMPANY], there is no impediment to male patients receiving therapeutic leave where appropriate and approved by the MHRT.

3. In relation to this part of the complaint, [NAME] is again alleging direct sex discrimination in the provision of services under s 33 of the [NAME] Act.

4. In order to substantiate the complaint he would have to prove that the respondent is providing him with a service and identify that service. Therapeutic external leave is leave granted under s 49 the Mental Health ([NAME]) Act 1990 (NSW):

1. The Tribunal may make an order allowing a [NAME] to be absent from a mental health facility, correctional centre or other place for such period and subject to such terms and conditions, if any, as the Tribunal thinks fit.

2. An order may be made on the application of the [NAME] or on the motion of the Tribunal.

3. The Tribunal must not make an order allowing a [NAME] to be absent from a mental health facility, correctional centre or other place unless it is satisfied, on the evidence available to it, that the safety of the [NAME] or any member of the public will not be seriously endangered if the leave of absence is granted.

4. This section does not prevent leave of absence being granted to a [NAME] detained in a correctional centre under any other Act or law.

5. The section has effect despite the Crimes (Administration of Sentences) Act 1999 .

1. Under s 50, the Director General of the Department of Attorney General and Justice may allow a [NAME] to be absent from a mental health facility in circumstances constituting an "emergency" or other "special circumstances". That is not the kind of leave [NAME] seeks and, in any event, the Director General is not a party to these proceedings.

2. Decisions under s 49 of the Mental Health ([NAME]) Act 1990 are made by the MHRT, not the respondent. Consequently, the failure to make such a decision does not constitute the refusal of a service by the respondent. That is the case regardless of whether the respondent may initiate an application for external leave to the MHRT. The MHRT is the decision maker. Contrary to [NAME]'s submission, there is no ambiguity in the legislation.

3. In those circumstances, access to escorted day leave is not a service that the respondent provides to [NAME]. Given that the complaint is doomed to fail, it is not fair or just for it to proceed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2015