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  • Unreported Judgment

Glattback v State of Queensland

 

[2016] QCAT 159

CITATION:

Glattback v State of Queensland [2016] QCAT 159

PARTIES:

Phillip Glattback

(Applicant)

 

v

 

State of Queensland

(Respondent)

APPLICATION NUMBER:

ADL007-14

MATTER TYPE:

Anti-discrimination matters

HEARING DATE:

13 14, 15, 16 July 2015; 7, 8 September 2015; 22,23,26 October 2015

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

DELIVERED ON:

26 February 2016

DELIVERED AT:

Brisbane

ORDERS MADE:

  1.  The application is dismissed.

CATCHWORDS:

Prisoner – impairment – direct and indirect discrimination

Anti-Discrimination Act 1991 (Qld) ss 10,11,101 and 108

Corrective Services Act 2006 (Qld) , ss41,43,319G and s12

Corrective Services Regulation 2006 (Qld)

Edoo v Minister for Health [2010] WASAT 74

Prezzi v Discrimination Commissioner [1996] ACTAAT 32

Rainsford v Victoria [2007] FCA 1059;

Rana v Flinders Univesity of SA [2005] FMCA 1473

APPEARANCES:

APPLICANT:

Phillip Glattback

RESPONDENT:

State of Queensland

REPRESENTATIVES:

APPLICANT:

Self-represented

RESPONDENT:

Represented by Mr C Murdoch of Counsel, instructed by Ms N Smith of Crown Law.

REASONS FOR DECISION

  1. [1]
    Mr Glattback is a prisoner incarcerated at the Wolston Correctional Centre.  He complains of direct and/or indirect discrimination on the basis of impairment in the area of the administration of State laws and programs, in breach of section 101 of the Anti-Discrimination Act 1991 (Qld) (the Act).
  2. [2]
    Mr Glattback’s complaint relates to the conduct of a urine test on 26 October, 2012 as a result of an alleged failure by corrective services officers, to take into account his medical condition and to follow a prescribed process when he was subjected to the urine test and subsequent breach hearing and appeal. He complains about the consequences of that treatment being the finding of a breach of discipline made against him and the punishment imposed.  He seeks an award of monetary compensation in the sum of $70,000.00 together with an apology.

Background

  1. [3]
    On 22 November, 2010, Mr Glattback raised with a Wolston Correctional Centre Psychologist a belief that he suffers from a psychological condition affecting his ability to provide a urine sample when under scrutiny.  That condition is known as paruresis and is sometimes called shy bladder syndrome.
  2. [4]
    Dr Khann, a Visiting Medical Officer at the Correctional Centre medical centre saw Mr Glattback on 6 December, 2010, in relation to the issue.  He was referred to see a specialist at the Princess Alexandra Hospital for “advice (on Paruresis)”.  
  3. [5]
    On 7 December, 2011 Mr Glattback was seen by a Urologist.  The Clinical Notes of the examination were provided to the medical centre and placed on Mr Glattback’s medical file in December, 2011.  The notes record: “ Imp – psychological issue with urinating in front of people…recommend if urine test is required, assist with appropriate environment to facilitate test.”
  4. [6]
    On his return to the correctional centre a Clinical Nurse, Ms Davies, saw Mr Glattback and recorded on his medical file that he understood the process he needs to follow. On 19 December, 2011, Mr Glattback met with Ms Tanja Shaw, then Clinical Nurse, and discussed the results of the examination by the Urologist.
  5. [7]
    On 26 October, 2012, a request was made that Mr Glattback provide a urine sample, as part of a random drug screening process. Mr Glattback was unable to provide a urine sample.  He alleges that he told the officers conducting the test that he was unable to provide a urine sample because of a medical condition.  An enquiry was made of the medical centre at the Correctional Centre. The person to whom the officer spoke is unknown.   The officers continued with the urine test on the basis that no relevant medical condition existed.
  6. [8]
    Because of the failure to provide a urine sample Mr Glattback was charged with being taken to have given a positive test sample.  A breach hearing was conducted on 28 November, 2012.  He was found guilty and sentenced to 5 days separate confinement and had his visit status changed to non-contact for 3 months. 
  7. [9]
    Prior to the breach hearing, Mr Clark the officer conducting the hearing, attended at the medical centre and spoke to the then Acting Nurse Unit Manager, Tanya Shaw to determine if Mr Glattback suffered from a medical condition which prevented him from giving a urine sample. There is differing evidence as to whether Mr Clark was only told there was no “physical” reason why Mr Glattback could not supply urine or whether he was also told of a psychological issue with urinating in front of people.
  8. [10]
    Mr Glattback asserts that when called to the breach hearing he did not have the documents with him, which he contends supported his medical condition.
  9. [11]
    On 7 December, 2012 an appeal of the breach decision was conducted.  During the appeal hearing, Mr Wright the officer conducting the appeal, telephoned Ms Shaw to determine if Mr Glattback suffered “shy bladder syndrome”. Again there is a differing evidence as to what was said during that conversation. At the appeal hearing, Mr Glattback presented extracts from two documents purporting to record an acknowledgement by David Beverley, Sentence Management Advisor and Peter Bottomley, Deputy Commissioner, Probation and Parole that he suffers from paruresis – “shy bladder syndrome”.  Mr Wright concluded that there was no evidence of a medical condition which would provide a reasonable excuse from providing a urine sample.
  10. [12]
    On appeal, the original finding of guilt was confirmed, and the penalty was increased to 7 days separate confinement. Mr Glattback complains about the unpleasant and uncomfortable conditions he was subjected to in the detention unit and the lack of contact visits with his mother and son over Christmas. He also complains that because of the finding he was not able to be sent to a prison farm.
  11. [13]
    On 8 January, 2013 Ms Shaw provided Mr Glattback with a letter stating that Queensland Corrective Services (QCS) have not been advised that there is no evidence of his medical condition.  The letter confirmed that his medical file confirms a Urologist has documented that he has an identified psychological condition and should a urine test be required an appropriate environment to facilitate the test is recommended.
  12. [14]
    On 13 January, 2013 Mr Glattback complained to the General Manager of the prison and provided a copy of Ms Shaw’s letter.  As a result, the then Acting General Manager, Mr Peter Shaddock, determined that Mr Glattback was not guilty of a breach of discipline arising out of the 26 October, 2012 test.

Legal framework and Issues to be determined

  1. [15]
    The following issues need to be determined under the Act:
    1. (a)
      did Mr Glattback have paruresis and is that an impairment, as defined in the Act;
    2. (b)
      in respect of direct discrimination under s 10 of the Act:
  • how in the same circumstances would the respondent have treated a person without the impairment of paruresis; and
  • if Mr Glattback’s treatment was less favourable  was this because of the impairment;
    1. (c)
      in respect of indirect discrimination under s 11 of the Act:
  • any term or condition which has been imposed on Mr Glattback;
  • whether Mr Glattback has demonstrated that he cannot comply with the term because of his impairment;
  • whether Mr Glattback has demonstrated that a higher proportion of people without the impairment could comply with the term;
  • whether the term is reasonable.  In this regard, the onus falls on the respondent to demonstrate that the term is reasonable in all the circumstances.
    1. (d)
      whether the exemption under s 108 of the Act is established;
  1. [16]
    The Corrective Services Act 2006 (Qld) (CS Act) modifies the Act.  In particular, s 319G of the CS Act applies if a protected defendant treats, or proposes to treat, an offender with an attribute less favourably than another offender without the attribute in circumstances that are the same or not materially different.
  2. [17]
    A protected defendant is defined to include, the State and persons employed or engaged by the State, but only in relation to a matter arising out of the administration of the CS Act.  The evidence is that the medical centre at the Wolston Correctional Centre is a Queensland Health facility. I find that medical treatment of prisoners arises out of the administration of the CS Act.  I find that the staff of Wolston Correctional Centre and the medical centre staff are protected defendants.
  3. [18]
    Section 319G(2) of the CS Act provides that a protected defendant does not directly discriminate against the offender if the treatment or proposed treatment, is reasonable.
  4. [19]
    Section 319G(2) of the CS Act provides that in considering whether the treatment, or proposed treatment, is reasonable, the Tribunal must consider any relevant submissions made about any of the following-
    1. (a)
      the security and good order of any corrective services facility in which the offender was detained when the protected defendant treated, or proposed to treat, the offender less favourably;
    2. (b)
      the cost to the protected defendant of providing alternative treatment;
    3. (c)
      the administrative and operational burden that providing alternative treatment might place on the protected defendant;
    4. (d)
      the disruption to the protected defendant that providing alternative treatment might cause;
    5. (e)
      the budget constraints of the protected defendant;
    6. (f)
      the resources constraints of the protected defendant;
    7. (g)
      whether the treatment or proposed treatment, adequately meets the needs of the offender, notwithstanding the availability of alternative treatment that more ideally meets the needs of the offender;
    8. (h)
      the need to respect the offenders’ dignity;
    9. (i)
      whether the treatment or proposed treatment, unfairly prejudices other offenders;
    10. (j)
      any other matter the Tribunal considers relevant.
  5. [20]
    In a case involving an allegation of direct discrimination, the protected defendant must prove, on the balance of probabilities, that the treatment, or proposed treatment, is reasonable.
  6. [21]
    In relation to indirect discrimination, in considering whether the term in question is reasonable, s 319H of the CS Act provides that the Tribunal must consider any relevant submissions made about the matters set out at (a)-(j) above. 
  7. [22]
    Also relevant is the statutory basis on which urine testing can be conducted in prisons.  By s41 of the CS Act a prisoner can be required to provide a test sample.  Section 43(4) of the CS Act provides that a prisoner is taken to have given a positive test sample if the prisoner refuses to supply the test sample or fails to supply the test sample within a reasonable time, unless the prisoner has a reasonable excuse. Section 12(3) of the CS Regulation requires the prisoner to be observed while the sample is given.  Test sample is defined in the CS Act to mean a “sample of blood, breath, hair, saliva or urine.”

Impairment

Mr Glattback’s evidence and submissions

  1. [23]
    Mr Glattback says that he suffers from paruresis.  He says that as a result of that condition he is unable to provide a urine sample whilst watched by correctional centre officers in accordance with the prescribed process for collecting a urine sample. The respondent does not submit that there is no known condition of paruresis.  Nor does the respondent challenge that the effect of paruresis is that a person is unable to urinate in front of others.
  2. [24]
    Mr Glattback relies on the Clinical Notes from the Princess Alexandra Hospital (attachment LR – to the affidavit of Lorraine Reid, Exhibit 26) as evidence of the diagnosis and submits that the Urologist is capable of making the diagnosis.
  3. [25]
    Mr Glattback also relies upon other people having interpreted his medical file as establishing a diagnosis of paruresis. Those people are David Beverly, Sentence Management Manager, Mr Peter Bottomley, Deputy Commissioner, Probation and Parole, and Ms Richardson, Clinical Nurse. He relies on Ms Tanja Shaw, Clinical Nurse having acknowledged in writing that a Urologist has documented that he has an identified psychological condition.
  4. [26]
    Mr Glattback’s knowledge of the condition and its method of diagnosis is drawn from documents downloaded from the internet.  These documents appear at pages 8-12 of the attachments to Mr Glattback’s statement of evidence (Exhibit 1). I cannot attribute any weight to those documents other than providing very general information.
  5. [27]
    No medical witness was called by Mr Glattback to support his submissions.

Respondent’s evidence and submissions

  1. [28]
    The respondent asserts that there is no evidence before this Tribunal that Mr Glattback has been diagnosed with the condition by a suitably qualified person. The respondent submits that the Princess Alexandra Clinical Notes do not represent a diagnosis, but merely the record of an impression by a Urologist.  The respondent submits that a Psychologist or Psychiatrist must diagnose the condition.
  2. [29]
    Other than Mr Glattback, the witnesses who address the issue of whether paruresis has been diagnosed are Ms Reid, Ms Shaw and Mr Beverley.

Evidence of Ms Reid

  1. [30]
    The respondent relies on Ms Reid, the current Nurse Unit Manager at the medical centre for a medical interpretation of the Urologist’s Clinical Notes. Ms Reid’s evidence in chief is that there has been no diagnosis of paruresis by the Urologist who saw Mr Glattback.  She says that to obtain a confirmed diagnosis of paruresis, he would need to be seen by a Psychologist or Psychiatrist.  In an answer she gave in re-examination, Ms Reid said that in her medical career she has regularly seen the term “IMP” before and that it means: “that this is a possibility and it’s not a confirmed diagnosis until there is supporting pathology or other, usually, investigations that would support an impression of a diagnosis.”[1]
  2. [31]
    Ms Reid’s expertise in relation to paruresis, is that she had worked in a Urology department in Auckland and Vancouver for a period of eight years. She said that she had never seen a case of diagnosed paruresis.  Ms Reid confirmed that she could not diagnose the condition and that her knowledge was limited to her capacity as a registered nurse.
  3. [32]
    Ms Reid maintained under cross-examination that the Urologist had recorded that he formed an impression in relation to Mr Glattback’s condition and that he had made no diagnosis.  She said: “An impression is based on self-disclosed information from a patient or a possible cause.  It is not a diagnosis.”[2]
  4. [33]
    Cross-examination of Ms Reid revealed some matters not raised by her in her evidence in chief or at odds with her evidence in chief. It also highlighted a misleading email sent by Ms Reid.
  5. [34]
    First, Ms Reid gave evidence under cross-examination that after the Clinical Notes were received she rang the Urologist to ask him what his plan was for Mr Glattback.  This conversation is not referred to in her evidence in chief.  She admitted in cross-examination that she made no record of the conversation and did not record the Doctor’s advice in the patient record.  She said that she acted on her conversation with the Urologist and contacted the psychology service at the correctional centre to tell them that Mr Glattback possibly needed counselling. Later, during cross-examination Ms Reid admitted that she did not know the name of the Urologist she spoke to and that it could have been someone from the Urology Department at the Princess Alexandra Hospital. Later still in cross-examination Ms Reid said that she did not ask the Urologist what he actually meant by the “psychological issue” referred to in his notes, nor did she ask about the appropriate environment for urine testing that he referred to. She said that she asked him to confirm whether or not Mr Glattback had any physical condition which gave rise to his complaint.  Ms Reid said that she was concerned that any problem was related to Mr Glattback’s kidney condition.  I note that Ms Reid did not raise with the person she spoke to whether a diagnosis had been made, or what degree of certainty attended the Urologist’s “impression”.
  6. [35]
    Second, in cross-examination, Ms Reid said that a Urologist is capable of diagnosing paruresis.[3]  This is at odds with her evidence in chief that only a Psychologist or Psychiatrist can diagnose paruresis. Ms Reid refined the statement made in her statement of evidence, at paragraph 29, where she says that for Mr Glattback to obtain a confirmed diagnosis of paruresis, he would need to be seen by a Psychologist or Psychiatrist. The refinement Ms Reid made, was to say that this would be a referral process. That is, the Urologist would pass Mr Glattback onto a Psychologist or Psychiatrist if there was a psychological condition.
  7. [36]
    Third, Ms Reid revealed in cross-examination that she had held conversations with two Prison Mental Health Psychiatrists about the issue.   Neither Psychiatrist was called to give evidence. No notes were made of the conversations by Ms Reid and nothing was recorded in Mr Glattback’s medical file about the conversations.  Only one of the conversations is referred to in Ms Reid’s statement of evidence.  That conversation is relevant to email correspondence between Ms Reid and Mr Ralph, a Correctional Services Officer in the Intelligence section of the Centre, which administers drug testing in the prison.  Mr Ralph has the power to excuse a prisoner from participating in a drug test if the prisoner has a medical condition, which prevents him from doing so.
  8. [37]
    In an email to Mr Ralph dated 21 December, 2011 Ms Reid said that “paruresis is a psychological condition that Psychiatrist is not prepared to support.” [4] 
  9. [38]
    It is not in dispute that Mr Glattback has never seen a Psychologist or a Psychiatrist for the purpose of diagnosing his condition.
  10. [39]
    Ms Reid’s evidence in chief attempts to explain the basis of the statement  to Mr Ralph, by saying “it is likely that I spoke with one of the psychiatrists who visited the medical centre at Wolston CC about paruresis., Dr Eve Timmins…In light of what I wrote in my email to Mr Ralph, it is likely that the psychiatrist I spoke with said that they would not give Mr Glattback a letter to excuse him from the requirement to comply with drug testing.[5]
  11. [40]
    In cross-examination, Ms Reid attempted to draw a distinction and say that she was not suggesting Dr Timmins would not support Mr Glattback’s condition. Rather, it was merely the condition in general she was referring to.
  12. [41]
    In response to another question about the conversation with the Psychiatrist Ms Reid said: “…I didn’t mention your name when I was talking to her.  I asked about the condition to see if it was something that they deal with for the proper referral.  Again you’re reading more into this conversation that I had with the doctor than was actually there.  I was asking a general, informative question on how it was managed…Her response was, it’s not something they would support.  I explained it quite clearly, that these conversations I have with other professionals is one to gain knowledge, etcetera.”[6]
  13. [42]
    The email to Mr Ralph suggests on its face that Mr Glattback has been seen by a Psychiatrist and a conclusion reached that Mr Glattback does not have paruresis. That was put to Ms Reid by Mr Glattback in cross-examination. I do not consider that Ms Reid gave any satisfactory response.  I am of the view that Ms Reid made a misleading statement to Mr Ralph, which could have been overcome by Ms Reid expressing herself more clearly as to what she meant.
  14. [43]
    Ms Reid went on to give evidence that she also spoke to another Psychiatrist, Dr Anthony Tie.  She said: “Well, I’m saying that now I did speak to Dr Tie and I did speak to Dr Timmins in relation to your paruresis in specific.”[7] In seeking to explain why she had made no record of the conversations Ms Reid said that any of the conversations she had with the Psychiatrist was not in specifics and that she would not put a general conversation in the file.[8] Later she re-iterated that the conversation with the Psychiatrist was not about Mr Glattback, but rather about the condition: “I asked how it was diagnosed, what we had to go through, who I would get a referral to.  Those were the sorts of questions that I had, as a consultation with the psychiatrist.”[9]
  15. [44]
    Because of these matters, I do not consider Ms Reid to be a reliable witness and I am not confident in accepting the respondent’s submission that I should rely on Ms Reid’s interpretation of the Urologist’s Clinical Notes to the effect that Mr Glattback has not been diagnosed with paruresis.

Evidence of Ms Shaw

  1. [45]
    Ms Shaw, Clinical Nurse and at certain times Acting Nurse Unit Manager, also gave evidence in relation to the meaning of the Urologist’s clinical notes. In relation to the contraction - “IMP”, she said it is short for “impression”. “It’s his impression that it is a psychological issue with urinating in front of people.  That’s standard note-writing on a medical file.”[10]
  2. [46]
    In her evidence in chief Ms Shaw stated that she was not aware of any medical evidence received by the medical centre at Wolston Correctional Centre to the effect that Mr Glattback has a medical condition that prevents him from urinating during a drug urine test. In cross-examination Ms Shaw said that she should have qualified that statement to say that there was no “physical condition” that prevents Mr Glattback from urinating.[11]
  3. [47]
    In both cross-examination and re-examination Ms Shaw confirmed that a Urologist is able to diagnose paruresis.
  4. [48]
    When questioned in cross-examination as to whether Ms Shaw considered the Urologist had made a diagnosis of paruresis, Ms Shaw said: “Well if you can put it diagnosed.  I believe you’ve seen a specialist who’s investigated you and has said, yes, here is some evidence that you have a psychological condition that may prevent you urinating in front of people and suggests a – a suitable environment… to collect a urine sample.”  Mr Glattback asked: “ As the NUM, would you accept that as a diagnosis?” Ms Shaw responded: “ Yes, I would accept that from the specialist.  Having said that, there would be nothing I could really do about that in terms of collecting a drug test sample from you… because, again, that has nothing to do with Queensland Health.”[12]
  5. [49]
    This evidence is consistent with a letter written by Ms Shaw to Mr Glattback dated 8 January, 2013 where she said:

“1. Queensland Corrective Services (QCS) have not been advised that there is no evidence of your stated condition.

2. Your medical file confirms and supports this condition within the documentation. A Urologist has documented that you have an identified psychological condition, and should a urine test be required an appropriate environment to facilitate the test is recommended.”[13]

  1. [50]
    Ms Shaw was re-examined on the question of whether a diagnosis of paruresis has been made with respect to Mr Glattback.  She said: “Well, the urologist hasn’t actually written anything about paruresis.  He’s written what the patient describes…He’s written that they can’t find any like physical – like no lower urinary tract symptoms, and then just his impression on what he thinks, according to the – the patient’s description, and that’s that it’s a psychological issue that he has with urinating in front of people.”[14]
  2. [51]
    When asked in re-examination, what Ms Shaw takes from the use of the note in question, Ms Shaw said: “that the urologist couldn’t find a physical reason for the patient not being able to pass urine, so he deducts, or he – his impression is that it’s a psychological issue and possibly just an appropriate environment to facilitate testing would be all that was required in order to – to facilitate a urine test.”[15]
  3. [52]
    Later she was asked: “Do I take it from the answers that you’ve given to the tribunal to my questions that, on your perusal of the medical file, there is no confirmation that Mr Glattback suffers from paruresis?”  Ms Shaw responded: “Not on the – what I could see.  Like not a confirmation from a specialist.”[16]
  4. [53]
    I consider Ms Shaw’s letter to Mr Glattback to be very clear. It records her interpretation of the Urologist’s Clinical Notes as having given a diagnosis of psychological condition. Ms Shaw’s evidence in chief does not suggest she was mistaken in her interpretation. She does not seek to disavow the letter in evidence in chief. Ms Shaw was consistent in cross-examination. In re-examination the questioning changed from reference to a diagnosis to reference to no “confirmation” that Mr Glattback suffers from paruresis. It is only upon this suggestion being made to her that Ms Shaw expressed some doubt. Because of the nature of the question put to her and the way in which the preceding evidence was given, I do not attribute any weight to this answer.
  5. [54]
    I find that Ms Shaw has interpreted the Clinical Notes as recording a diagnosis of paruresis. Ms Shaw was prepared to put that interpretation in writing.  Because a written document is more likely to be a considered reflection of a person’s thoughts, I attribute greater weight to the letter than Ms Shaw’s re-examination. I do not consider there is any evidence to support the submission that Ms Shaw was mistaken in the matters set out in the 8 January, 2013 letter.

Evidence of David Beverley

  1. [55]
    Mr Glattback relies on notes made by David Beverley, at the relevant time, Senior Advisor on Sentence Management.  Mr Beverley interviewed Mr Glattback on 8 May, 2012 in relation to Mr Glattback’s  security classification reconsideration request.  One of the issues raised by Mr Glattback was an earlier failure to supply incident on 26 January, 2011.  Mr Beverly completed a form recording certain relevant information: “Interviewed prisoner Glattback on 8 May, 2012.  The prisoner was very concerned that information contained in the Information notice was incorrect.  For example…3. Fail to supply incident recorded on 26 /1/2011, matter was no longer pursued as medical file confirms he suffers from Paruresis – shy bladder syndrome…”[17]
  2. [56]
    Mr Beverley’s evidence is that he recorded what Mr Glattback told him in the 8 May, 2012 interview and that he did not conduct any independent enquiry as to whether Mr Glattback did have a diagnosed condition of paruresis. I accept that evidence.  His notes do not take the question of whether Mr Glattback has a diagnosed condition any further.

Reconsideration of classification decision – Peter Bottomley and email from Tracy Richardson, RN.

  1. [57]
    Mr Glattback also relied on comments made by Peter Bottomley, then Deputy Commissioner, Probation and Parole, in a decision dated 6 June, 2012 in relation to reconsideration of classification. Mr Bottomley recorded in the decision that Mr Glattback had raised concerns in relation to the 26 January, 2011 urine analysis test and noted that information has been added to the Integrated Offender Management System (IOMS) which indicates that no action was taken in relation to this incident as updated information received by medical staff confirms Mr Glattback has a medical condition to account for his inability to supply a urine sample on this day.[18]
  2. [58]
    Mr Bottomley was not called to give evidence. On my reading of his decision Mr Bottomley does not purport to set out any information from his own knowledge of Mr Glattback’s condition. I cannot accord any weight to the note made by Mr Bottomley.
  3. [59]
    The note on IOMS he refers to, may be related to a record made in IOMS, by Patrick Ralph, Intelligence Advisor, following an email forwarded to him by Ms Reid, dated 31, January, 2011.  The email appears at LR-4 to the affidavit of Ms Reid (Exhibibit 26). Ms Reid asked that Mr Ralph put certain information on Mr Glattback’s file for future urine testing reference.  The information was contained in an attached email from a registered nurse, Ms Tracy Richardson, who said: “On further investigation of his notes, I have found that this offender has a condition called Paruresis – shy bladder syndrome…”
  4. [60]
    Ms Richardson was not called to give evidence.  It appears from Ms Reid’s affidavit that the only document to which Ms Richardson could have had reference at the time was Dr Khann’s progress note and referral to the Princess Alexandra Hospital.
  5. [61]
    Ms Reid said that she did not check the accuracy of Ms Richardson’s conclusion, however later, on 19 December, 2011 she emailed Mr Ralph to tell him that Mr Glattback has no physical reason not to pass urine.  Ms Reid attached an email from Ms Shaw to that effect, dated 19 December, 2011.  She followed it up with an email on 21 December, 2011 saying a Psychiatrist is not prepared to support a psychological condition of Paruresis – shy bladder syndrome.  That evidence is discussed earlier in this decision.
  6. [62]
    I cannot attribute any weight to Ms Richardson’s email to Mr Ralph or the subsequent notation made on IOMS referred to by Mr Bottomley.  Those records are not evidence of a diagnosis of paruresis.

Finding in relation to diagnosis of paruresis.

  1. [63]
    On the basis of the evidence of both Ms Shaw and Ms Reid I find that a Urologist is able to diagnose paruresis.
  2. [64]
    The respondent submits:
    1. (a)
      that there is no medical evidence to substantiate Mr Glattback’s self-reported claim he has the medical condition paruresis, or as to its effect on him at the time he failed to supply in October, 2012;
    2. (b)
      there has been no diagnosis by the urologist, merely the recording of an impression;
    3. (c)
      Mr Glattback himself conceded that he still has no diagnosis (Transcript 1-86);
    4. (d)
      Mr Glattback has presented no evidence of any steps taken by him after 19 December, 2011, but before October, 2012 to be seen by a Psychologist at Wolston CC or elsewhere or by a Psychiatrist;
    5. (e)
      the Tribunal cannot accept as evidence the self report of a complainant as to the existence of an impairment;
    6. (f)
      Mr Glattback must provide a medical opinion from a suitably qualified person as to their diagnosis, accompanied by an opinion as to how the diagnosed condition manifests itself (Rana v Flinders University of SA [2005]FMCA 1473 at [64] and [65]); Mr Glattback’s evidence does not have probative force and is not capable, of itself, of establishing that he is suffering from an impairment as defined in the Act (Edoo v Minister for Health [2010] WASAT 74 at [72]); and the mere existence of an alleged symptom does not amount to an impairment, especially in circumstances where he had previously been able to provide urine samples during urine drug testing procedures (Prezzi v Discrimination Commissioner [1996] ACTAAT 32 at [46] to [47]).
  1. [65]
    I reject these submissions. This is not a case where there is no evidence of the impairment asserted by an applicant. The evidence is the Clinical Notes made by the Urologist and forwarded to the respondent. There has been no challenge to status of the Notes or any suggestion that they should not be considered as evidence before the Tribunal. The Clinical Notes cannot be ignored.  The Urologist has recorded his “impression”. I find that “impression” bears its ordinary meaning. The Macquarie Dictionary defines the word to mean, relevantly: “1. a strong effect produced on the intellect, feelings, or conscience. 2. the first and immediate effect upon the mind in outward or inward perception; sensation. 3. the effect produced by an agency or influence…”[19]  Diagnosis is defined in the Macquarie Dictionary to mean: 1. Med. a. the process of determining, by examination of the patient, the nature and identity of a diseased condition. b. the decision reached from such an examination. 2. Scientific determination; a description which classifies precisely.”[20]
  2. [66]
    I think that an impression can be a diagnosis on the basis of these definitions.
  3. [67]
    The Urologist was specifically asked for advice in relation to paruresis.[21]  He saw Mr Glattback in person for the purpose of doing so. He recorded what he thought after an examination. He named a condition, namely “psychological issue with urinating in front of people.”  He did not refer Mr Glattback to a different specialist, including a Psychologist or Psychiatrist for diagnosis, which I would have expected him to do if he did not think he was competent to address the question raised with him. The Urologist in fact recommended a course of action to deal with the condition, in  circumstances where the condition created problems for Mr Glattback. That is consistent with a conclusion or diagnosis having been reached by the Urologist as to the condition. I think that is a fair and available interpretation of the Clinical Notes. If it had wished, the respondent could have located the Urologist in question and called the Urologist to give rebuttal evidence. It did not do so.
  4. [68]
    I am given some comfort that this is a reasonable interpretation, given the interpretation of the Urologist’s notes made by Ms Shaw in her letter of 8 January, 2013. I prefer Ms Shaw’s evidence on this issue to that of Ms Reid, for the reasons set out earlier. In any event, Ms Shaw’s evidence is merely how one registered nurse has interpreted a note in a medical record. At the end of the day, I must decide whether Mr Glattback has established on the basis of only the Urologist’s Clinical Notes, that he has been diagnosed with paruresis. 
  5. [69]
    On the basis of the reasoning set out in the preceding paragraphs, I find that the Clinical Notes record a diagnosis of paruresis by the consulting Urologist.
  6. [70]
    I acknowledge that the Clinical Notes are limited in their explanation of how this condition manifests itself. However, in the context of Mr Glattback’s complaint that he cannot urinate in front of people during urine testing, the medical consultation that occurred to investigate the complaint, and the recommendation in relation to an appropriate environment for urine testing, I think it is clear that the manifestation of the condition is that Mr Glattback cannot urinate in front of people. In the absence of any evidence that the condition has changed since the date of the examination, I find that was the effect of the condition on him at the time he failed to supply on 26 October, 2012.
  7. [71]
    In relation to the submission that Mr Glattback admits he has not received a diagnosis of paruresis, I understand Mr Glattback’s evidence to be that he has not received a diagnosis from a Psychologist or Psychiatrist as required by the respondent.  He complains that he has been frustrated in his attempts to obtain that diagnosis. However, he submits that he has been diagnosed by the Urologist and that it is not necessary for him to be diagnosed by a Psychologist or Psychiatrist.[22] In any event the question of whether Mr Glattback has been diagnosed is a matter for the Tribunal.
  8. [72]
    In relation to a failure to obtain a diagnosis from a Psychologist or Psychiatrist, I note Mr Glattback’s evidence that he did not think such a step was necessary. I find that it was not necessary for him to do so, given the finding that a diagnosis has been made by the Urologist.
  9. [73]
    As to reliance on the self-reporting of Mr Glattback, I have not done so. I have not relied upon the self-reporting of Mr Glattback or the other pieces of evidence he has mistaken as evidence of a diagnosis. I have relied upon the Clinical Notes of the Urologist made following a professional consultation for the purpose of considering and advising on paruresis.
  10. [74]
    In relation to the need for a medical opinion given as evidence, I find that the Clinical Notes are a medical opinion from a Urologist, who is a suitably qualified person.
  11. [75]
    I find that the Urologist has described how the condition manifests itself. In the case of paruresis, although I accept that there are likely to be degrees of severity, the manifestation of the condition reflects the condition.  This is unlike the situation in Rana’s case where the Tribunal was confronted with assertions of vague depressive or anxiety conditions which could have manifested in many ways.
  12. [76]
    I agree that  self-reporting alone from Mr Glattback and the notations made by Mr Beverley, Mr Bottomley, Ms Richards and Ms Shaw are not evidence of a diagnosis.
  13. [77]
    As to Mr Glattback’s alleged ability to provide a urine sample whilst at a different correctional centre at an earlier time, I do not consider it is necessary to make any finding in this regard. The allegation is of limited relevance.  I understand the respondent suggests that if Mr Glattback was able to provide an earlier sample it points to him not having paruresis.  Mr Glattback denies that he was able to provide more than a few drops of urine.  He also says that in another facility he was given privacy in order to provide a urine sample.  The finding I have made in relation to a diagnosis relates to a subsequent point in time to these earlier tests. The respondent has not called the Urologist to say whether his opinion would be changed by knowledge of a sample given at an earlier time. I would require medical evidence on this point before I could reach any conclusion in relation to the medical significance of earlier urine tests.
  14. [78]
    As to the point that impairment cannot be established by a mere symptom without evidence of an underlying condition, I again refer to the finding of a diagnosis of paruresis.  This can be compared to the facts in Prezzi’s case where no illness or condition was identified and the Tribunal only had “personality problems” to consider.

Is paruresis an impairment as defined in the Act?

  1. [79]
    The respondent submits that if it is accepted that the effect of paruresis is that a person is unable to urinate in the presence of others, paruresis could amount to an impairment within the meaning of subsections (a) or (b) of the definition of impairment in the Act, namely total or partial loss of the person’s bodily functions or a malfunction of a part of the person’s body. That submission is qualified by the submissions referred to earlier.  I have rejected those submissions.
  2. [80]
    I have found that the Clinical Notes of the Urologist are evidence of a diagnosis of paruresis, being a psychological issue with urinating in front of people.  I agree with the respondent that such a condition fits the definition of impairment at subsections (a) or (b) of the definition.  I find paruresis is an impairment within the meaning of the Act and that at the time of the 26 October, 2012 urine test, Mr Glattback had that impairment.

Direct discrimination

How, in the same or similar circumstances would the respondent have treated a person without paruresis?

  1. [81]
    Direct discrimination is concerned with comparative treatment.  In this case, the treatment of Mr Glattback must be compared to the treatment of a prisoner who is unable to give a urine sample during a test conducted in accordance with the respondent’s Urine Test Procedure, but who does not have paruresis. In this decision such a person is referred to as the comparator.
  2. [82]
    In response to questioning by me on this issue at the commencement of the hearing, Mr Glattback said that if a person is unable to give a urine sample and they don’t have paruresis or another reason for not giving a urine sample then they would be found guilty and follow the same breach and appeal process that he followed. He said that if they did have a reason for failure to supply urine at a test, then they may not be breached, or they would face a breach hearing and they could beat that or they could beat the appeal and they wouldn’t face a detention unit.[23]
  3. [83]
    Mr Glattback said that he knows these things because of discussions with inmates who fail to supply urine at urine tests. He was unable to offer any explanation as to how his treatment was less favourable than that given to the comparator on such an analysis.
  4. [84]
    The respondent submits that insofar as a comparator cannot give a urine sample without a reasonable excuse, that person would be breached, would have a right of appeal and would be liable to punishment in the same way as Mr Glattback.
  5. [85]
    Support for this submission is found in the CS Act and the evidence of Ms McDermott, Acting Assistant Director-General for Statewide Operations, in relation to the Queensland Corrective Services drug strategy.  I accept her evidence that there is a zero tolerance approach to the use of drugs in correctional centres and that drug use in a custodial environment has significant security and health and safety ramifications. I accept her evidence that urine testing is a critical component of the QCS drug strategy.
  6. [86]
    I note that sections 41 to 43 of the CS Act and Part 2, Division 6 of the CS Regulation provide for testing of prisoners. Under s 41(1) a prisoner may be required to give a test sample, including a sample of urine.
  7. [87]
    By s 43(4)(b) of the CS Act failure to supply a urine sample is dealt with in the same way as providing a positive test sample.  A prisoner will be taken to have given a positive test sample if the prisoner fails to provide a test sample within a reasonable time, unless the prisoner has a reasonable excuse, including a medical condition.
  8. [88]
    The prescribed procedure for the conduct of urine tests is set out in a standard procedure document.  As at 26 October, 2012, it was the QCS Procedure – Substance Testing – Corrective Services Facilities – Random and Targeted (implementation date 15 August, 2011).[24] In this decision I refer to this procedure as the Urine Test Procedure. The conduct of breach hearings and appeals is set out in the Breaches of Discipline Standard Operating Procedure.[25]
  9. [89]
    Given the extensive use of urine testing in prisons authorised by statute and the use of set procedures for testing, breach hearings and appeals, it would appear on a broad analysis that Mr Glattback has not been treated less favourably than a comparator.
  10. [90]
    However, Mr Glattback submits that other prisoners would be entitled to correct application of the testing, breach and appeal procedures and to appropriate sharing of information between Queensland Health employees and employees of QCS. He says that to the extent this has not occurred he has been treated less favourably than others in similar circumstances and that direct discrimination has occurred.
  11. [91]
    Mr Glattback referred to the following matters in his contentions and final submissions:
    1. (a)
      at the 26 October, 2012 urine test, his request that the issue of paruresis be specifically raised with the medical centre, was ignored by the officers conducting the urine test, Mr Neilson (Supervisor) and Mr Guy and Mr Copland;
    2. (b)
      the officers performing the urine test failed to inform the General Manager of his alleged medical condition and await a decision before deeming a positive result, in breach of  the Urine Test Procedure at section 6.5;  
    3. (c)
      the officer conducting the breach hearing, Mr Clark, unlawfully read his medical file.  Later, in submissions Mr Glattback said that he would not continue with this part of his complaint;
    4. (d)
      Mr Clark lied to him about his advice from Ms Shaw, given the contents of her letter, dated 8 January, 2013;
    5. (e)
      Mr Clark ignored his request to have his prior breaches and incidents examined;
    6. (f)
      Mr Clark ignored a request to retrieve supporting documents from his cell (being the Beverley and Bottomley documents).  Later, in submissions Mr Glattback said that he would not continue with this part of his complaint;
    7. (g)
      Mr Clark ignored his request to have other QCS officers called as witnesses;
    8. (h)
      Mr Clark ignored his request to call as witnesses the Deputy Commissioner and General Managers with knowledge of his alleged paruresis;
    9. (i)
      Mr Clark did not inform the General Manager of the asserted “reasonable excuse” and await a decision before deeming him guilty, in breach of the Procedure;
    10. (j)
      the officer conducting the appeal, Mr Wright, lied to him about his advice from Ms Shaw, given the letter received from medical on 8 January, 2013;
    11. (k)
      Mr Wright ignored his request to have his prior breaches and incidents examined;
    12. (l)
      Mr Wright ignored the documents signed by the Deputy Commissioner and the General Manager advising of his medical condition – paruresis;
    13. (m)
      Mr Wright ignored his request to have other QCS officers with knowledge of his alleged condition, called as witnesses;
    14. (n)
      Mr Wright ignored his request to have input from the Deputy Commissioners and General Managers with knowledge of his alleged paruresis and prior incidents;
    15. (o)
      Mr Wright failed to inform the General Manager and await a decision on the “reasonable excuse” offered by him before deeming him guilty and sending him to the detention unit.
  12. [92]
    At the hearing Mr Glattback raised complaints against the staff of the medical centre.  I understand him to be submitting that other prisoners would be given correct information or treated appropriately and that he has suffered direct discrimination through the following conduct:
    1. (a)
      Ms Shaw intervened with her interpretation of the condition to refer him to the QCS Psychologists when she first spoke to Mr Glattback after receipt of the clinical notes;
    2. (b)
      he should have been followed up by a Doctor, not a nurse after the examination by the Urologist;
    3. (c)
      the medical centre has not correctly looked at his condition when he has asked to see a psychiatrist. He has not been referred to an appropriate medical practitioner; 
    4. (d)
      no documentation was made of Ms Reid’s discussions with QCS psychologists;
    5. (e)
      wrong information was sent to Mr Ralph by Ms Reid onforwarding Ms Richardson’s email and later referring to a Psychiatrist not supporting the condition. He asserts the Memorandum of Understanding (MOU) between Qld Health and QCS in relation to information sharing was not followed;
    6. (f)
      The MOU was breached by no documentation being made and nothing being communicated to Mr Glattback about the discussion between Mr Clark and Ms Shaw prior to the breach hearing and Mr Wright and Ms Shaw during the appeal hearing.
  13. [93]
    The respondent submitted that in the majority of those matters, there is no evidence that any of those things were done because of an alleged impairment, nor is there any evidence that in respect of those things he was treated differently than how somebody else in a similar circumstance would be treated.

Conduct of the Urine Test

  1. [94]
    In relation to conduct of the urine test, it was put to Mr Guy that Mr Glattback had asked that the medical centre be specifically asked about “paruresis”. Mr Guy could not recall Mr Glattback making that request.  Assuming the request was made and ignored, that may be unfavourable treatment, however the question is whether it was less favourable treatment than the comparator would receive.  The Urine Test Procedure is silent in relation to how assertions of a “reasonable excuse” are to be investigated in the course of a urine test.  I therefore cannot say that Mr Glattback’s treatment in this respect is less favourable than that experienced by other prisoners unable to give urine in a urine test.
  2. [95]
    I am satisfied on the evidence that there was some poor practice on the part of the officers undertaking the urine test.  In particular, no notes were made of any conversation between the relevant officer and the person he spoke to in the medical centre. There was no common evidence as to who is authorised to contact the medical centre and who may be the appropriate person to speak to at the medical centre.  Witnesses gave differing evidence as to when contact with the medical centre should be made.  Witnesses gave differing evidence as to whether a urine test should be stopped once a medical condition is raised as a ‘reasonable excuse” for failing to supply urine.  Because the Urine Test Procedure is not clear on these points, I am unable to say that Mr Glattback has been treated less favourably than others who do not have paruresis, in the same circumstances.
  3. [96]
    The other procedural matter which appears not to have been observed is the requirement at clause 6.5 of the Procedure to inform the General Manager of the failure to supply. I am unable to say on the evidence how that lapse is unfavourable to Mr Glattback and whether it was a practice applied in other urine tests.

Conduct of the Breach Hearing

  1. [97]
    In relation to the conduct of the breach hearing, Mr Clark was cross-examined in relation to his refusal to consider earlier breaches, and to hear evidence from witnesses. Mr Clark’s response was that he considered the paramount issue to be whether there was evidence of Mr Glattback’s alleged medical condition available from Mr Glattback’s medical records.  In the absence of this evidence he determined that no other information or witnesses could be relevant.  I note that the process adopted by Mr Clark does not accord with clause 9 of the Breaches of Discipline Standard Operating Procedure, which entitles a prisoner to an opportunity to prepare a response in their defence on any mitigating circumstances for the breach hearing. Further, paragraph (i) of the Appendix to that document requires an officer conducting the breach hearing to consider, inter alia, “incident history, breach history and case notes”.[26]
  2. [98]
    Mr Clark is required to complete part of a Form 23 in relation to the breach proceedings.  The form has many errors on its face, including Mr Glattback’s name, the date of the failure to supply urine (or breach date) and the fact that the urine test was said to be targeted when it was random.  The form does not record in the section allocated for recording submissions made by a prisoner that Mr Glattback asserted a medical condition as a reason for being unable to supply urine during the October test.
  3. [99]
    These matters amount to unfavourable treatment of Mr Glattback in the course of the breach hearing.  One could not reasonably expect that other prisoners are treated in similar unfavourable ways as a matter of course. On this basis, Mr Glattback has been treated less favourably than others in similar circumstances.
  4. [100]
    In relation to the complaint about failure to notify the General Manager, I cannot locate that requirement in the relevant Breach Hearing Procedure.
  5. [101]
    The other unsatisfactory aspect of Mr Clark’s conduct relates to the way in which he accessed information in relation to Mr Glattback’s medical condition.  The transcript of the breach hearing records Mr Clark telling Mr Glattback that he spent 40 minutes in the company of the Nurse Unit Manager reading his medical file to determine if there was evidence of the medical condition paruresis.[27] During cross-examination he denied reading the file and said he had spent 10 minutes in the company of the Nurse Unit Manager seeking information on the issue. As it has transpired Mr Glattback is not continuing with any complaint in relation to access to his medical information by Mr Clark.
  6. [102]
    I will deal with the issue of what Mr Clark was told by the medical centre later in this decision.

Conduct of the Appeal Hearing

  1. [103]
    In relation to conduct of the review hearing by Mr Wright, held on 7 December, 2012 I note Mr Wright’s evidence in chief that he gave little weight to the documents prepared by Mr Beverly and Mr Bottomley. I accept that was reasonable particularly given the greater relevance of any evidence on Mr Glattback’s medical file in support of the claimed condition.
  2. [104]
    Mr Wright says that he had earlier considered Mr Glattback’s breach history and could find no record of any breach.  He did not search for any case notes.  Mr Wright says that Mr Glattback did not ask for any witnesses to be called in his defence. This accords with the transcript of the appeal.
  3. [105]
    An unsatisfactory aspect of Mr Wright’s evidence is the fact that two versions of the Form 23 completed by him at Part C are in existence. One version printed by Mr Glattback from the IOMS does not bear the notes in relation to what submissions were made by Mr Glattback in his defence.  The other version attached to Mr Wright’s statement of evidence does bear that notation.  The explanation given by Mr Wright is that the Form 23 was scanned by an unknown person into IOMS before Mr Wright completed the form, which he did later. In the end I do not think anything turns on this issue other than sloppy management of paperwork.
  4. [106]
    Again in relation to the complaint about failure to refer the matter to the General Manager, I cannot locate this requirement in the relevant Procedure.
  5. [107]
    I am unable to say with respect to these matters raised against Mr Wright that Mr Glattback has been treated unfavourably, let alone less favourably than others in similar circumstances.

What were Mr Clark and Mr Wright told by the medical centre about Mr Glattback’s medical condition?

  1. [108]
    Mr Clark and Mr Wright made findings of guilt in relation to Mr Glattback, because of what they say was advice from the Nurse Unit Manager, that Mr Glattback did not have any evidence to support his claim to suffer from paruresis. This issue goes to Mr Glattback’s complaint that he received less favourable treatment than a comparator, because the officers lied to him about about their advice from Ms Shaw, given the terms of her letter, dated 8 January, 2012.  The issue also goes to the question of whether the officers treated Mr Glattback less favourably than a comparator, because of his impairment.
  2. [109]
    Mr Glattback in his contentions has relied upon Ms Shaw’s letter of 8 January, 2013 as evidence of what she told Mr Clark and Mr Wright.
  3. [110]
    As no witness kept notes of the conversations with Ms Shaw the meaning of what was said, when put in context of the discussion between the parties, has been lost.
  4. [111]
    Mr Clark’s evidence is that Ms Shaw informed him there was nothing independent from a doctor to indicate Mr Glattback had a medical condition that would prevent him from supplying urine.  He says he understood from what Ms Shaw told him that the notes contained on Mr Glattback’s medical file referred only to what Mr Glattback had reported to the doctor. He re-iterates that Ms Shaw advised him there was nothing from a doctor advising that Mr Glattback could not supply urine.
  5. [112]
    Mr Clark was not moved from that position in cross-examination.
  6. [113]
    Mr Wright’s evidence is that Ms Shaw told him there was nothing documented in Mr Glattback’s file to confirm he had shy bladder syndrome.  He also said that she told him the doctor who saw Mr Glattback recommended that if a urine test was required, that QCS provide him with an appropriate environment to facilitate the test.
  7. [114]
    In cross-examination, Mr Wrignt did not recall Ms Shaw mentioning a psychological condition which gave rise to a difficulty urinating in front of someone. He did not vary from his evidence in chief.
  8. [115]
    Ms Shaw’s evidence in relation to these conversations varied in the course of the evidence. One version is set out in the letter of 8 January, 2013. Another version in her evidence in chief is limited to telling Mr Clark and Mr Wright that there was no medical reason why Mr Glattback could not provide urine.  That was changed in cross-examination to no “physical reason” why urine could not be provided.  Ms Shaw said in cross-examination that she could not recall telling Mr Clark or Mr Wright that the Urologist had said that Mr Glattback had a psychological issue with urinating in front of people.[28] She attempted to explain this by asserting that medical staff say as little as possible to non-medical staff because of patient confidentiality. As cross-examination wore on Ms Shaw shifted her evidence to say, consistent with her 8 January, 2013 letter that: “There’s no reason why I would not have said to either of those officers that, “He has a psychological condition.  The urologist has recommended that you know, “he be provided with a suitable environment to urinate,” or, “to provide a urine sample in” and that “He can physically supply urine.”  That’s all that I’ve said throughout.”[29]
  9. [116]
    Given the shifting nature of Ms Shaw’s evidence, I cannot discount the evidence of Mr Clark and Mr Wright as to their understanding of what Ms Shaw had told them in relation to Mr Glattback’s condition.  Given her emphasis on Mr Glattback’s ability to produce urine, it is possible that is the over-riding information they retained from their conversations with Ms Shaw.
  10. [117]
    I am not sufficiently confident in Ms Shaw’s account of her conversations with Mr Clark and Mr Wright to say that their knowledge of Mr Glattback’s medical condition was anything other than what they have asserted in evidence. I do not think the officers have lied to Mr Glattback. I do not think Mr Glattback has been treated less favourably than a comparator by being found guilty of the breach, in circumstances where the officers had no confirmation of his medical condition from the Acting Nurse Unit Manager.

Conduct of medical centre staff

  1. [118]
    In relation to the complaints made against medical centre staff, these complaints were not articulated in the application to the Anti-Discrimination Commission nor in Mr Glattback’s statement of contentions.  The complaints emerged in the course of the hearing. Counsel for the respondent did not object to complaints being pursued during the hearing.
  2. [119]
    Given my finding in relation to a diagnosis of paruresis, the complaints in relation to appropriate follow up, investigation and referral diminish in consequence. They relate to the question of whether Mr Glattback could have and should have sought a diagnosis from a Psychiatrist or Psychologist.
  3. [120]
    Ms Reid gave evidence that QCS and the medical centre comply with the procedures in a Memorandum of Understanding between them ( Exhibit 27 in the Proceedings). The MOU requires at clause 8 that a person disclosing prisoner medical information must ensure that a record of the relevant information that was disclosed be made in the prisoner’s file and be communicated, where clinically advisable to the prisoner.  Schedule 2 to the MOU – the Information Sharing Protocol provides that where possible provision of confidential patient information to QCS should be with the written consent of the prisoner. The MOU is intended to apply to all prisoners.  I find that Mr Glattback has been treated less favourably than a comparator through the failure by medical centre staff to comply with clause 8 and Schedule 2 of the MOU.

If Mr Glattback’s treatment was less favourable than the treatment given to a person without his impairment, in the same circumstances, was this because of the impairment?

  1. [121]
    I have found that Mr Clark and Ms Reid and Ms Shaw have treated Mr Glattback less favourably than a comparator. 
  2. [122]
    Despite this there is no evidence that this less favourable treatment was because of Mr Glattback’s condition of paruresis.  Mr Glattback did not put this proposition to the witnesses. He made no submissions to me on the point. 
  3. [123]
    I have found that Mr Clark and Mr Wright did not understand Mr Glattback to be suffering from paruresis at the time of the breach and appeal hearings.  On this basis I cannot find that their treatment of him, including the steps taken in the hearings and the findings of guilt and imposition of punishment were because of the condition of paruresis suffered by him.
  4. [124]
    I accept the submission of the respondent that it cannot be said Mr Glattback was treated less favourably than others because of his medical condition.  Rather, the lack of evidence regarding his condition was the reason that he was breached. 
  5. [125]
    In relation to the medical centre staff I think that their unfavourable treatment of Mr Glattback is because of poor record keeping and compliance processes.  Ms Reid gave evidence of the large amount of work required of the Nurse Unit Manager as a reason why appropriate records were not kept. There is no direct evidence that Ms Reid or Ms Shaw were motivated to treat Mr Glattback less favourably than a comparator because of his medical condition. Indeed Ms Reid has never acknowledged a diagnosis of paruresis.

Finding in relation to direct discrimination

  1. [126]
    I find that there has been no direct discrimination of Mr Glattback on the basis of his impairment.
  2. [127]
    Given this finding it is not necessary to make any findings in relation to the reasonableness of the conduct of the officers under s 319(2) of the CS Act

Indirect discrimination

  1. [128]
    Mr Glattback has not contended in his application to the Anti-Discrimination Commission nor in the statement of contentions filed in this Tribunal that he has been subjected to indirect discrimination.  When questioned at the hearing, Mr Glattback asserted that he pressed such a claim.   Counsel for the respondent did not object to a consideration of indirect discrimination.

Term or condition imposed on Mr Glattback

  1. [129]
    In the context of the practice by QCS, to conduct urine tests on prisoners, as part of its containment of drugs in prisons, I am satisfied that a condition has been imposed on Mr Glattback by the respondent.
  2. [130]
    Each party contends for a slightly different term.  Mr Glattback claims the term is the requirement to undertake a urine test and being subjected to a breach and appeal process as an integral part of the test.  The respondent contends that the term reflects s 43 of the CS Act: “ A prisoner is required to undertake a  urine test and will be breached for failing to provide a urine test sample unless he has a reasonable excuse as to why he is not able to supply a urine sample.”
  3. [131]
    I accept the respondent’s statement of the term, but think it more reflective of the term or condition actually imposed on Mr Glattback if the reference to a urine test is a reference to a urine test conducted in accordance with the Urine Test Procedure.

Mr Glattback unable to comply because of his attribute

  1. [132]
    I have found that a diagnosis has been made and that Mr Glattback suffers from an impairment as defined in the Act, namely, paruresis.  I have found that the effect of the condition is he cannot urinate in front of people. Section 43 of the CS Act makes it clear that a “reasonable excuse” is a medical condition.  Mr Glattback has a relevant medical condition. He is therefore able to comply with the condition because he can provide a “reasonable excuse”.
  2. [133]
    The difficulty for Mr Glattback is that on 26 October, 2012, he was unable to comply with the condition because he could not establish the diagnosis of paruresis at that time. The evidence suggests that was because of poor communication between the medical centre and QCS officers and in the case of Ms Reid, a different interpretation of the Clinical Notes.  There is no evidence that if the diagnosis had been communicated to the QCS officers, it would have been ignored and that Mr Glattback would be forced to participate in the urine test and the consequent breach and appeal processes. Indeed the fact that the relevant officers made enquiries of the medical centre indicates that they were conscious of the possibility of a “reasonable excuse” and that it would have been observed.[30]
  3. [134]
    I find that Mr Glattback was not prevented from complying with the term or condition because of his medical condition.  He was prevented from complying with that part of the term which requires evidence of a “reasonable excuse”, by circumstances outside his control, which were not a function of his impairment.

Higher proportion of people without paruresis can comply

  1. [135]
    I agree with the submission of the respondent that it cannot be inferred on the evidence, that a higher proportion of people without paruresis can comply, because if they can demonstrate a relevant diagnosis, they will not be required to undertake the Urine Test and subsequently breached.

Reasonableness of the term imposed

  1. [136]
    Section 11 of the Anti-Discrimination Act 1991 (Qld) provides that whether a term is reasonable depends on all the relevant circumstances of the case, including, for example, the consequences of failure to comply with the term, the cost of alternative terms and the financial circumstances of the person who imposes, or proposes to impose, the term.  Section 11 is read subject to s 319H of the CS Act, set out earlier in this decision.
  2. [137]
    The principal witness in relation to the need for drug testing and the use of urine tests was Ms McDermott. I accept her evidence that drug use in prisons is a serious issue affecting the health and safety of prisoners and officers. Mr Glattback did not challenge that evidence.  He asserted several times in the course of the hearing that he abhors the use of drugs and does not object to a testing regime and that he would willingly participate in other forms of test. Mr Glattback submits that there are reasonable alternatives to the Urine Test Procedure, including use of a dry cell where he could produce a urine sample unobserved, use of saliva tests or blood tests.
  3. [138]
    Ms McDermott’s evidence is that urine testing is the only form of drug testing used in prisons.  Her evidence is that keeping prisoners under observation in the course of providing urine is important to avoid the risk of prisoners adulterating the sample. I accept that evidence.  I note the statutory obligation for observation of any testing. For these reasons, I consider the Urine Test Procedure to be reasonable.
  4. [139]
    Ms McDermott gave evidence that prisons do not have the available rooms or resources to provide dry cells for testing. I accept that evidence.
  5. [140]
    Ms McDermott said that following a trial it was determined that saliva testing was unsuitable for use in prisons because the period of time in which drugs can be detected in saliva is short, it was prone to produce false negative results and it was sometimes difficult to collect enough saliva for testing.  I accept her evidence and find that saliva testing is not a reasonable alternative to the Urine Test Procedure.
  6. [141]
    Ms McDermott also addressed blood testing.  Her evidence is that Queensland Corrective Services does not currently employ doctors or nurses to take blood tests for drug testing and that the doctors and nurses engaged in the medical centre can only do so for medical purposes. Under s 42(2) of the CS Act only a doctor or nurse may take a blood sample. Ms McDermott said that blood testing would pose considerable logistical and financial costs. She said that blood testing is not preferred for testing because the average drug detection period for blood is a shorter period of time than for urine.  Blood testing is also considered a very invasive method of collection compared to the collection of a urine sample. I accept this evidence. I also accept the evidence of Mr Simmons, Deputy General Manager of Wolston Correctional Centre that there is no ability and no facilities at Wolston Correctional Centre for blood samples to be taken from a prisoner. I find that blood testing is not a reasonable alternative to the Urine Test Procedure.
  7. [142]
    Mr Shaddock, General Manager, Operational Service Delivery gave similar evidence in relation to the difficulty of drug testing by saliva sample or blood sample, which I accept.
  8. [143]
    I find that the respondent has discharged the onus of proving the reasonableness of the term or condition. In particular I accept the respondent’s submissions that the term or condition is reasonable because of:
  • Queensland Corrective Service’s obligation to ensure the security and good order of Wolston Correctional Centre and the significant risk to the security and good order of Wolston Correctional Centre posed by the supply and use of drugs within corrective services facilities;
  • the respondent’s obligation to ensure the health and safety of all prisoners, employees and visitors to Wolston Correctional Centre;
  • the need to maintain the integrity of the Substance Testing procedure and apply it consistently so that prisoners do not evade the drug testing regime;
  • the importance of both targeted and random urine drug testing in Queensland Corrective Services strategy to reduce the supply of and demand for drugs in corrective services facilities;
  • the fact that a reasonable excuse may be provided;
  • enquiries with the medical centre at the relevant time of the decision to breach a prisoner are made;
  • the risk that, were Queensland Corrective Services to simply accept a prisoner’s claim that he has a medical condition that prevented him from being able to supply a urine sample during random drug testing, other prisoners would similarly claim to have a medical condition to avoid being tested;
  • there are no reasonably available alternatives to urine testing;
  • dry cells are not available at Wolston Correctional Centre and cannot reasonably be made available.
  1. [144]
    One further point requires elaboration.  The respondent submits that a prisoner can avail himself of a “reasonable excuse” to avoid liability for a breach.  The respondent says that Mr Glattback had at all material times the capacity to seek psychiatric opinion as to whether he has the condition and its effects. In the absence of other evidence I accept the evidence of Ms Shaw and Ms Reid that Mr Glattback cannot see a Psychiatrist at the prison, in relation to his condition, because he does not suffer from the type of conditions the Psychiatrists visiting the prison deal with.  Nevertheless, their evidence is that Mr Glattback can see the visiting general practitioner in relation to his condition. That may result in referral to an appropriate specialist as occurred in this case. Further, it is open to a prisoner to seek a diagnosis from an external specialist. Accordingly, I find that Mr Glattback and other prisoners have access to a means of establishing a medical condition as a “reasonable excuse”, so that the term or condition as a whole is reasonable.

Finding in relation to indirect discrimination

  1. [145]
    I find that Mr Glattback has not established that he has been the subject of indirect discrimination.

Conclusion

  1. [146]
    As a result of my findings that Mr Glattback has not established he has been the subject of direct or indirect discrimination, it is not necessary to consider the respondents submissions in relation to the application of the exemption set out in s 108 of the Anti-Discrimination Act 1991 (Qld).
  2. [147]
    Likewise, as a result of my findings it is not necessary to determine whether there is an inconsistency between ss 41 and 43 of the CS Act and s 12 of the CS Regulation and the operation of the Act or whether the CS Act prevails over the Act to the extent of any inconsistency.
  3. [148]
    I order that the application be dismissed.

Footnotes

[1]  Transcript 8-69 at 19.

[2]  Transcript 7-23 at 25.

[3]  Transcript 7-78 at 35.

[4]  LR-17 to Exhibit 26.

[5]  Exhibit 26, paragraph 36.

[6]  Transcript 8-27 at 43.

[7]  Transcript 7-123 at 20.

[8]  Transcript 7-130 at 25 and 30.

[9]  Transcript 8-11 at 5.

[10]  Transcript 5-22 at 45 and 5-23 at 1.

[11]  Trancript 5-102 at 40.

[12]  Transcript 5-103 at 10 and 15.

[13]  Exhibit 17 Statement of Tanya Shaw at attachment TS-6.

[14]  Transcript 5-107 at 17.

[15]  Transcript 5-107 at 22.

[16]  Transcript 5-108 at 9.

[17]  Exhibit 14 Statement of David Beverley at attachment DB-1.

[18] Exhibit 1 Statement of Phillip Glattback at p.40 of attachment from p 36-42

[19]  Macquarie Concise Dictionary, 4th ed. Macquarie Dictionary Publishers Pty Ltd The University of Sydney, Sydney, 2007 at p.599.

[20]  Ibid., at p.329.

[21]  Exhibit 17 Statement of Tanya Shaw attachments TS1 and 2.

[22]  Transcript 2-19, L5; Transcript 5-58, L13.

[23]  Transcript 1- 19 at 45 and 1-20 at 1- 45.

[24]  Exhibit 10 Statement of evidence of Mark Copland at MC-1.

[25]  Exhibit 8 Statement of Peter clark, attachment PC1.

[26] Exhibit 8 Statement of Peter Clark, attachment PC1.

[27] Exhibit 4 Transcript of Breach Hearing, 28 November, 2011.

[28] Transcript 5-66 at 10 and 5-69 at 13 – 24.

[29] Transcript 5-101 at 36.

[30]  See Rainsford v Victoria [2007]FCA1059 for a discussion of a term or condition that a prisoner must obtain a medical certificate  stating alternative travel arrangements should be made, if a prisoner is medically unfit to take the regular transport service. It was found there was not indirect discrimination where a prisoner did not obtain the medical certificate.

Close

Editorial Notes

  • Published Case Name:

    Glattback v State of Queensland

  • Shortened Case Name:

    Glattback v State of Queensland

  • MNC:

    [2016] QCAT 159

  • Court:

    QCAT

  • Judge(s):

    Member Ann Fitzpatrick

  • Date:

    26 Feb 2016

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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