Milner v Odyssey House, Victoria [1998] HREOCA 29 (8 September 1998)

HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992 (CTH)

No H97/220

Between

SHANE NORMAN MILNER

Complainant

and

ODYSSEY HOUSE, VICTORIA

Respondent

REASONS FOR DECISION

Peter Johnston - Inquiry Commissioner

Location of Hearing: Melbourne

Hearing Date: 1 June 1998

Date of Decision: 8 September 1998

Appearances: The complainant appeared in person

The respondent was, by leave, represented by

Dr Hanscombe of counsel

1. INTRODUCTION

This is an inquiry by the Human Rights and Equal Opportunity Commission ("the Commission") pursuant to s.79 of the Disability Discrimination Act 1992 (Cth) ("the Act"). The complainant is Mr Shane Milner. His complaint, reduced to simple terms, is that the respondent, Odyssey House, Victoria ("Odyssey House") discriminated against him in two respects: first, when it failed to admit him into its drug and alcohol rehabilitation program in May 1995 and second, when it failed to appear to give evidence at a sentencing hearing before a Magistrate, at which Mr Milner was sentenced to a term of imprisonment. Mr Milner alleges that the actions of Odyssey House in failing to admit him and in failing to give evidence were due to the fact he had a psychiatric disability and that those failures constituted discrimination pursuant to the Act.

2. PRELIMINARY MATTERS

When the hearing commenced the respondent sought leave to be represented by counsel and leave was granted. At that time, Mr Milner also made an application for the proceedings to be held in private. This application was made on the basis that Mr Milner had been a witness for the Crown in a criminal case and that publicity could compromise his personal safety.

Except to the extent that communication within the management of Odyssey House was necessary, I made the order sought and the inquiry proceeded in the absence of the public.

3. THE LAW

Having regard to the nature of the alleged discrimination, sections 4, 5, 11 and 24 (relating to direct discrimination in the provision of goods, services and facilities) are the relevant provisions of the Act. So far as is relevant they read:

SECTION 4 - Definitions

disability", in relation to a person, means:

(a) total or partial loss of the person's bodily or mental functions; or

(g) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;

and includes a disability that:

(h) presently exists; or

(i) previously existed but no longer exists; or

(j) may exist in the future; or

(k) is imputed to a person;

SECTION 5 - Direct Discrimination

(1) For the purposes of this Act, a person ("discriminator") discriminates against another person ("aggrieved person") on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.

(2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.

SECTION 24 - Goods, services and facilities

(1) It is unlawful for a person who, whether for payment or not, provide goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's disability or a disability of any of that other person's associates:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section does not render it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services, or making facilities available, would impose unjustifiable hardship on the person who provides the goods or services or makes the facilities available.

SECTION 11 - Unjustifiable hardship

11. For the purposes of this Act, in determining what constitutes unjustifiable hardship, all relevant circumstances of the particular case are to be taken into account including:

(a) the nature of the benefit or detriment likely to accrue or be suffered by any persons concerned; and

(b) the effect of the disability of a person concerned; and

(c) the financial circumstances and the estimated amount of expenditure required to be made by the person claiming unjustifiable hardship; and

(d) in the case of the provision of services, or the making available of facilities - an action plan given to the Commission under section 64.

4. EVIDENCE OF THE PARTIES

4.1 Evidence for the complainant

Mr Milner gave evidence on his own behalf. This evidence covered a range of different concerns, including his treatment in gaol. This background provides something of a context in which to view the current complaint. It is clear that Mr Milner has been through very difficult times and has made significant progress in overcoming his past. For the purpose of this inquiry, however, I must focus on those aspects of Mr Milner's evidence which directly relate to his claim against Odyssey House.

Mr Milner told the inquiry that in mid-1995 he was incarcerated on remand in Pentridge gaol. He was awaiting sentencing for some offences with which he had been charged (burglary and possession of stolen goods). He was then addicted to drugs and requested that he be interviewed by Odyssey House in order to seek admission into their drug and alcohol rehabilitation program ("the program"). Mr Milner said that he sought drug withdrawal treatment from Odyssey House in order to be drug free and to "turn his life around".

He was interviewed in Pentridge gaol by a representative of Odyssey House, Ms McLaughlin. He expected Odyssey House to be present at his subsequent sentencing at Dandenong Court in June 1995. Sentencing was also to take place in relation to a number of other prior charges for which sentence had been suspended. Mr Milner pleaded guilty to all outstanding charges. Odyssey House was not present at Dandenong Court and Mr Milner states that, during the course of the sentencing hearing, the Magistrate looked at a piece of paper which Mr Milner could not identify and commented that "Odyssey House was out of the question." Mr Milner could not be certain but thinks it is "possible" that this paper was a report prepared by Dr Walton, a psychiatrist (see pp.8-11 of Exhibit 1). It appears from the report that it was requested by Christopher Traill & Associates, Mr Milner's solicitors, on his behalf.

It is not in dispute that Mr Milner was legally represented at the sentencing hearing and that his solicitor did not subpoena Odyssey House to give evidence on his behalf. Mr Milner's evidence was that he was "disappointed" by this. That day he dispensed with his solicitor's services. In the result, he was sentenced to a term of imprisonment.

Mr Milner had been previously admitted into a program at Odyssey House. This was at Minto in NSW in 1981. He says he was dismissed from the program and transferred to another facility at Kangaroo Valley.According to the respondent's evidence, Mr Milner was dismissed for failing to report a breach of the rules of the program. Mr Milner said in evidence, however, that he did not know the reason why he had been required to leave the program.

Other evidence in support of the complainant was given by Mr Milner's fiancee. She told the Commission that Mr Milner's behaviour which resulted in the charges under consideration at Dandenong Court was uncharacteristic and induced by drugs.It is clear to the Commission that she has been of considerable support to the complainant in his efforts to put the past behind him.

4.2 Evidence for the respondent

Mr Bullard, a member of the Board of Odyssey House, gave evidence as to the structure and funding of the Odyssey House program. Odyssey House is a charity set up to effect the rehabilitation of persons with substance abuse problems. It did not provide services to people with psychiatric disabilities. His evidence was that, at the relevant time in 1995, Odyssey House was running at a loss and had no funds to employ additional staff, such as psychiatric nurses.

Mr Zavru, the Manager of Clinical Services at Odyssey House and a registered psychologist, gave evidence about Odyssey House's admissions processes. He had been involved in reviewing the complainant's application to join the program. Following the interview at Pentridge by Ms McLaughlin and receipt of Dr Walton's report, Mr Milner was not considered suitable for the program for several reasons. These included Mr Milner's history of psychiatric problems, the fact that he was on psychotropic medication at the time of the assessment, his prior history in the program, his age, his recidivist criminal activity, his highly deprived social history, his lack of improvement on previous treatment and his psychotic symptoms. Mr Zavru said that Dr Walton, in his report, had been mistaken in stating that psychiatric assessment and facilities were available at Odyssey House. Mr Zavru had relied on paragraphs 4 and 5 of Dr Walton's report in making his assessment of Mr Milner's suitability for admission into the program. These paragraphs were as follows:

4. I understand that Odyssey House have reservations about receiving this man into their care again on the basis that he was given to disruptive angry episodes previously, as well as his exhibiting frank psychiatric disturbance over and above the drug abuse. These concerns are not misplaced. While there have been some episodes of Mr Milner being prone to somewhat irrational anger during the latest period of remand, that is a less significant phenomenon than has been the case in the past.

All things considered, I would lend my support to this man undergoing formal in-patient drug rehabilitation, either immediately should he be fortunate enough to sustain a Section 28 Disposition or later. He certainly should not be simply released from prison on parole as occurred most recently.

5. Mr Milner currently exhibits no evidence of psychiatric disturbance. Disposition under Section 93 of the Sentencing Act would be inappropriate at this point. However, ongoing psychiatric supervision, as I understand would be available at Odyssey House, certainly would not be inappropriate.

Mr Zavru told the Commission that the report had been requested from Dr Walton by Mr Milner or his solicitor.

According to Mr Zavru, there were only limited psychiatricservices available at Odyssey House in 1995. These services involved a part time psychiatric nurse, a one day a week consultant psychologist and a consultant psychiatrist who came in for three hours per week. The consultant psychiatrist, for example, oversaw the administration of medication and provided assessments. No ongoing treatment was provided. In order for adequate ongoing psychiatric services, a 24 hour psychiatric nurse and a full time consultant psychiatrist would be needed. No funds for these positions were available to be expended in 1995.

In response to a question from the Commission, Mr Zavru said that Odyssey House would treat a person with a psychiatric disability if their condition was manageable within the system. However, this was rare and Odyssey House had to consider not only whether it could offer appropriate treatment for the person but also the effect on other clients and the available resources.

Mr Stuart, the Manager of Odyssey House counselling, spoke about the admission procedures at Odyssey House as well as the operation of Odyssey House as a therapeutic "community". He told the Commission that the maintenance of this "community" is the primary therapeutic agent. The demand for Odyssey House's services outstrips supply and over 50% of applicants are not offered a place in the program.

4.3 Findings about Mr Milner's psychiatric condition

On the evidence, I am unable to make a clear finding about Mr Milner's psychiatric status at the relevant time. At some points in his evidence, Mr Milner appeared to deny that he has ever had a psychiatric condition at all. However, he did say that he told Ms McLaughlin in their interview at Pentridge prison that he had been certified as having a mental illness and transferred to the "J" Block within the prison. He was inclined to dispute whether Dr Walton in his report had conveyed an accurate picture of his psychiatric condition. He was particularly adamant that that his commitment to "J" Block resulted from his opposition to the authorities.

There was also some inconsistency in the evidence in relation to when Mr Milner took certain medications, namely thiothixene and modecate. These medications are prescribed for psychotic symptoms. Mr Zavru conceded in his evidence that Mr Milner may have been on anti psychotic medications prior to the May 1995 interview at Pentridge but not at that time. Mr Stuart gave evidence that, even if there was an issue with the currency of the medication, this would not have affected any decision made in relation to Mr Milner.

I am satisfied, however, for present purposes that Mr Milner had at some time prior to May 1995, if not then, episodes of psychiatric illness for which he has been treated with the medications modecate and thiothixene.

5. SUMMARY OF ARGUMENT AND FINDINGS

5.1 The complainant's case

Mr Milner relied on the arguments set out in a letter drafted by his legal representative dated 4 February 1997. These refer to the refusal of Odyssey House to admit Mr Milner into its program in 1995. Insofar as they are presently relevant, these arguments as developed by Mr Milner during the hearing are as follows:

(a) Odyssey House is in the business of providing rehabilitation services;

(b) Odyssey House admits that it does not provide services to people with psychiatric disturbances;

(c) The "psychiatric condition" of Mr Milner has not been identified;

(d) Dr Walton's report indicates that Mr Milner exhibited no evidence of psychiatric disturbance; and

(e) Odyssey House has relied on Mr Milner's past medical history in a discriminatory way.

In his oral submissions Mr Milner summed up his complaint by saying he felt Odyssey House had contributed to his incarceration because "they had got it wrong about his psychiatric condition", based on Dr Walton's report.

As to remedy, Mr Milner stated that although no amount of money could compensate him for what he had been through, he was seeking an order for financial compensation.

5.2 The respondent's case

Dr Hanscombe for Odyssey House made the following submissions:

1. As to whether Odyssey House failed to attend at sentencing and give evidence:

(a) this was not in relation to the provision of "goods, services or facilities" (s.24 of the Act).

(b) Mr Milner was legally represented and, if his solicitor had thought Odyssey House could have given useful evidence, he would have called for it. Any use made of Dr Walton's report at the hearing had nothing to do with Odyssey House.

2. In relation to the failure of Odyssey House to accept Mr Milner into the program in May 1995:

(a) Whether or not the Magistrate imposed a custodial sentence depended on how he exercised his discretion under s.28 of the Sentencing Act 1991 (Vic). The respondent could only be found to have engaged in discrimination if it was clear that the Magistrate would not have imposed a custodial sentence and would have sent Mr Milner to Odyssey House instead. The Commission could not make such an assumption.

(b) This was because the restoration of the previous suspended sentences would inevitably have led to Mr Milner's incarceration.

3. Odyssey House did not discriminate against Mr Milner by refusing to accept him on the ground he had a psychiatric disability:

(a) Odyssey House is primarily a drug rehabilitation program. The evidence was that it could not and did not provide adequate psychiatric services.

(b) Mr Milner was seeking not just drug rehabilitation alone but additional and different services which were not available from Odyssey House. He was seeking more than it could provide. He has simply misapprehended the extent of the services which Odyssey House provided.

4. If discrimination could be shown, s.24(2) of the Act provided a defence in that the admission of persons with psychiatric disabilities would have imposed unjustifiable hardship on Odyssey House for the following reasons:

(a) In 1995 Odyssey House could not afford additional services.

(b) Persons with psychiatric disturbances could harm the rehabilitation of other persons on the program.

Dr Hanscombe relied on the decisions of the Commission in McLean v. Airlines of Tasmania Pty Ltd (1997) EOC 92-862 and Scott & anor v. TelstraCorporation Limited (1995) EOC 92-717 ("Scott") in support of the proposition that, if I found that the respondent had engaged in discriminatory conduct, having regard to all the circumstances of the case, I should nevertheless find that the financial hardship which would result to the respondent would justify a finding that the discriminatory conduct was not unlawful.

5.3 Findings

To succeed, Mr Milner has to satisfy the Commission that the respondent has engaged in conduct which constitutes discrimination as defined in the Act.

Although I have set forth the evidence presented to the Commission in some detail, at the end of the day there are no significant factual disputes on matters of substance, save for those referred to in section 4.3 above about whether or not Mr Milner had, at the relevant time, a psychiatric condition. All witnesses in my view gave their evidence truthfully to the best of their ability.

Mr Milner has displayed great tenacity and courage in bringing this complaint to the Commission. He has struggled to get his life back on track and to break the cycle of criminality, recidivism and drug use which he described during this inquiry. It must have been extremely disappointing and frustrating to Mr Milner in 1995 to have had his application for treatment for drug addiction turned down by the respondent. It is clear to me that he has matured over the years and wished to be admitted into the program to set his life on a new course. His attempts to break the cycle of dependence warrant the highest commendation.

Whether unlawful discrimination has occurred depends, however, on the terms of the Act. For the reasons that follow, I have not been able to find that Odyssey House has unlawfully discriminated against Mr Milner in a way recognised within the Act.

I accept, to start with, that Mr Milner has had a "disability" within the meaning of s.4(1) of the Act. This was a psychiatric condition that, from time to time, manifested itself in violent or angry behaviour. It is not necessary, however, to find whether the disability existed at the relevant time in 1995 or was a past disability.

Dealing first with the claim based on the alleged failure by the respondent to give evidence at sentencing, I do not accept the respondent's submission that giving evidence to a court cannot amount to the provision of a "service" within the meaning of that term in s.24 of the Act. In my opinion it could be regarded as a service in some circumstances such as where an expert witness agrees for financial consideration to provide a report to a court and attends to give evidence in relation to that report. But, on the evidence, I am not satisfied that there was any relevant failure by the respondent to give evidence at Mr Milner's sentencing hearing. It was up to his solicitor to make the necessary arrangements. No approach to the respondent was made. On the facts I have found, it cannot be said that the respondent failed or refused to attend, given it was not asked to do so. A failure to volunteer to give evidence in those circumstances could not constitute discrimination under the Act.

It is also clear, as a matter of law, that whether or not the respondent could accept Mr Milner into its program in 1995 depended on how the Magistrate exercised his sentencing discretion. Odyssey House could not admit Mr Milner unless the Magistrate ordered him to be admitted and the Magistrate did not so order. As it happened, the Magistrate's order to impose a custodial sentence put it beyond the respondent's power to admit him. Mr Milner's view is that part of the reason why the Magistrate imposed the custodial sentence may have been because Odyssey House was not prepared to take him into its rehabilitation programme. But that it is a matter of speculation. Even if I accept that the Magistrate said "Odyssey House is out of the question" there is no way I could be satisfied as to why he had come to that view. It was virtually inevitable, given the provisions of the Sentencing Act 1991 (Vic), that a custodial sentence would be passed given the outstanding offences also dealt with by the Magistrate. Odyssey House could not therefore be held to have engaged in an "act" which could amount to unlawful discrimination under s.69 of the Act by refusing to provide a service (admission to its program) which Mr Milner could not undertake by reason of his imprisonment.

Finally, I turn to the submission that the respondent did not engage in discrimination generally in the provision of services because it provides basic drug and alcohol rehabilitation services only and does not specifically provide psychiatric services.

I should first dispose of a point raised in the evidence. Mr Milner asserted that there had been a person who was accepted into the programme who, to his knowledge, did have a psychiatric condition. This, he claimed, contradicted the respondent's evidence. I accept the respondent's evidence that, in that particular case, the person was admitted in ignorance of his condition and he was removed from the program as soon as his condition became evident. That single instance cannot therefore contradict the respondent's claim that generally it did not take in anyone with a psychiatric complication.

For completeness, I now turn to the respondent's argument that it cannot be discrimination for a person to go to someone providing a particular service requesting services which it does not provide but which are provided by someone else. It is as if a person goes into a legal office and asks for medical treatment. It is not disability discrimination in the provision of services for the legal office to refuse medical treatment to that person because, in the terms of s.24 of the Act, the legal office in this hypothetical example does not "provide services" of the requisite kind (medical services) and cannot, therefore, refuse to provide them to the claimant.

The identification of the particular "service" is, therefore, an important matter. This identification is a question of fact in every case (Waters v. Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, at 361; Scott, at p.78,398). In approaching that task, I take into account Sir Ronald Wilson's note of caution in Scott that it is possible by "adopting a limited artificial definition of the services...[to] define the services so as to exclude the alleged discriminatory conduct" (at p.78,399). Nevertheless, it is not artificial in my view to regard the services provided by Odyssey House as limited essentially to drug and alcohol rehabilitation services. It is clear that Odyssey House simply does not and cannot provide the specialist services necessary to treat and manage persons with psychiatric disabilities. It does not purport to do so. I find that the "services" for the purpose of s.24 of the Act are "drug and alcohol rehabilitation services" and that these do not include "psychiatric services" other than incidental assessment and dispensing facilities.

Admittedly, Mr Milner did not request psychiatric services; he only requested drug and alcohol rehabilitation services from the respondent. It was Odyssey House who made the assessment that he required psychiatric services and rejected him on the basis that they did not provide them. In the course of oral submissions, I raised with Dr Hanscombe the possible error of Odyssey House in relying on Dr Walton's report which indicated that Mr Milner required psychiatric services when, in fact, he may not have done. Dr Hanscombe submitted that Mr Zavru's evidence was that Mr Milner required psychiatric support quite apart from Dr Walton's assessment and that even if the report was wrong, Odyssey House relied on its own assessment and should not have Dr Walton's possible errors attributed to it. I accept that that was the case.

Since Mr Milner was not legally represented I have attempted to consider his case in the most favourable light. Even if one accepts the respondent's evidence that it relied on its own assessment, it could still be said that the complainant was only seeking assistance for his drug problem from the respondent. Thus, it may be argued that it was the drug rehabilitation service itself that was being refused to him on the ground of the psychiatric disability which, rightly or wrongly, Odyssey House attributed to him. Viewed in that way, one could argue there has been unlawful discrimination within s.24 of the Act.

However, even if in all the circumstances it is possible to frame an argument that way, (a matter I do not finally need to decide), I am satisfied that it would have amounted to unjustifiable hardship within the meaning of the term in s.24(2) of the Act for the respondent, if it undertook drug addiction rehabilitation for Mr Milner, to have had to provide the additional psychiatric services which it considered he required. My finding that the respondent would be subjected to unjustifiable hardship is based on Mr Bullard and Mr Zavru's evidence in relation to the financial consequences for Odyssey House of employing additional psychiatric staff. This was backed up by Mr Stuart's evidence as to the therapeutic value of the "community" and the extent to which it could be disrupted by persons with psychiatric disabilities. I accept also Mr Zavru's evidence that persons with psychiatric disabilities could take up a significant proportion of staff resources, frighten clients and unfairly impact on the treatment of others.

Consequently, I am of the view that if in declining to accept Mr Milner, the respondent treated him less favourably than persons seeking drug rehabilitation who did not have a psychiatric condition, the additional financial and other consequences would have been unjustified. If there was any discrimination on the part of Odyssey House it was, therefore, by reason of s.24(2), not unlawful.

It is also relevant to note that Odyssey House has many more applicants for positions than it can accommodate. It is quite reasonable in these circumstances for it to exercise the discretion as to who it admits with great care in order to provide the most effective service to those who it does admit. It is not the purpose of the Act to oblige a body like Odyssey House to take in everyone who seeks a place. This will be of no comfort to Mr Milner who is desperately trying to break his addiction but it allows the respondent to maintain its level of effective treatment in dealing in what is a very difficult problem.

Having regard to each of the claims of alleged discrimination, at the end of the day Mr Milner has not satisfied me that any act of discrimination, as known under the Act, occurred. If, however, the refusal to admit him to the program could be so described, given the financial and other handicaps his admission would have caused, it was not unlawful.

6. DIRECTION RELATING TO PRIVACY AND NON PUBLICATION

As mentioned at the start of these reasons, I gave a direction at the commencement of the hearing that the inquiry be held in private and that no publication be made of details identifying the complainant. No argument was put to me about whether the direction should continue after the publication of these reasons. Having given some thought to the matter I can see no reason why it should be continued. In these reasons, I have avoided spelling out the sensitive matters raised by Mr Milner in his evidence.

I do direct, however, that the evidence given to the Commission (other than those aspects referred to in these reasons) and the contents of documents provided to the Commission in the course of the hearing should not be published. The evidence and documents provided by the respondent may, however, be retained within Odyssey House for its own internal purposes, so long as no publication is made to other persons.

ORDERS

The complaint is dismissed pursuant to s.103 of the Disability Discrimination Act 1992 (Cth).

Dated this 8th day of September 1998

PETER JOHNSTON

Inquiry Commissioner