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- Unreported Judgment
Albert v Global Healthcare Pty Ltd QCAT 428
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Albert v Global Healthcare Pty Ltd & Ors  QCAT 428
Global Healthcare Pty Ltd
9 November 2023
25 and 26 October 2023, and later written material
Member P Roney KC
ANTI-DISCRIMINATION – where first respondent Medical practice Initial patient information form required date of birth, age and gender, and marital status, Ethnicity and Country of birth – where applicant existing patient of the medical Practice felt he was required to provide personal information relating to his date of birth, age and gender, and marital status, Ethnicity and Country of birth and was subjected to oral requirements that he provide his religion in order to obtain access to medical records in order to have them sent to another medical practitioner – whether a requirement to provide personal information amounts to contravention of s 124 – whether information reasonably require for a purpose not involving discrimination – whether statutory defence to the respondent’s conduct
Anti-Discrimination Act 1991 (Qld), s 7, s 8, s 124
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 66, s 191 s 229, s 230,
Age Discrimination Act 2004 (Cth),
Disability Discrimination Act 1992 (Cth),
Sex Discrimination Act 1984 (Cth)
K v S & N Company  QADT 11
Willmott v Woolworths Ltd  QCAT 601
Ms Brooks, Counsel instructed by Cooper Grace Ward Law
REASONS FOR DECISION
- The Applicant, who is what he self describes as an international student from Canada, of immigrant background, was an existing or former patient of a medical practice operated by the First Respondent. He has filed an application for compensation and other orders because he contends that, in contravention of section 124 of the Anti-Discrimination Act 1991 (Qld) (‘the AD Act’) he was required to provide personal information namely his date of birth, age and gender, and marital status, ethnicity and country of birth and was subjected to oral requirements that he state his religion in order to obtain access to medical records to enable them to be sent to another medical practitioner.
- I should mention before turning to deal with the issues which the parties have asked be determined by the Tribunal, that there was a multiplicity of other issues which were raised in the contentions, the submissions and in the affidavit material which go beyond that which I have mentioned above. Those extraneous issues, some of which I will briefly mention in these reasons because they have some peripheral relevance, for example, precursors to critical conversation, took up a considerable body of the filed material, but I was asked to decide only the narrow issues which are specifically referenced in these reasons. The applicant identified the narrow issue that he wished to be determined and to the extent of that they Respondents’ material dealt with other issues, Counsel for the Respondents made clear that the extraneous material was not relied upon and not pressed.
- The Applicant resided for a period in 2017, 2018 and 2019 on the Gold Coast before returning to Canada. He holds a law degree.
- The First Respondent is Corporation that is a medical practice, and in 2020 operated a medical clinic, called ‘My Doctors Clinic Surfers’ in Surfers Paradise on the Gold Coast.
- Relevantly, it is to observed that there was also a medical clinic called “My Doctors Clinic’ in Varsity Lakes, also on the Gold Coast. The Varsity Lakes Practice was previously known as ‘Varsity 7 Day Night Medical Centre’.
- The Applicant says he was a patient at the Surfers Paradise and Varsity Lakes Practices between September 2017 to May 2019. The Respondents differ, and contend that the Applicant was a patient at the Surfers Paradise and Varsity Lakes Practices between about 27 October 2017 to 28 February 2019. Nothing turns on the difference.
- The Complainant attended upon a number of medical practitioners at the Surfers Paradise and Varsity Lakes Practices, but the Third Respondent contends that he never attended upon or was treated by the Third Respondent and the Third Respondent denies that the Complainant was ever been a patient of the Third Respondent. Little if anything turns upon whether that is the true position or not, because whether the Applicant ever attended upon or was treated by the Third Respondent is of only circumstantial relevance to whether they had a telephone conversation on the date of the incident that this matter concerns, namely 20 August 2020. The Applicant gave a description of him in his evidence in re-examination which very closely described the appearance of Dr Alamgir as I observed him when he gave his testimony.
- Dr Hayat Jamaldini, a director of the First Respondent swore that having examined the practice records, that the Applicant was never attended upon or treated by Dr Abdur Alamgir, the Third Respondent. Dr Abdur Alamgir said the same thing.
- There is evidence from witnesses for the Respondents, including Dr Hayat Jamaldini and which I accept, that the Varsity Lakes Practice was operated by entities that are not parties to this complaint and that the First Respondent never operated it. The relevance of that is that to the extent that he had dealings with the Varsity Lakes Practice, for example filling out forms there with personal information, that was not the conduct of the First Respondent. The Varsity Lakes Practice closed and ceased operating on or about 30 April 2019, prior to the date of the incident that this matter concerns, namely 20 August 2020.
- Ms Lindsay, the Second Respondent was employed by the First Respondent from around July 2017 to May 2022 as a permanent part time second in charge of the practice working out of the Surfers Paradise Practice mainly, and was briefly seconded to the Varsity lakes practice. Some medical practitioners who provided medical services from the Surfers Paradise Practice (the My Doctors Clinic Surfers) also provided medical services from the Varsity Lakes Practice. Again, nothing turns on that fact.
- The Third Respondent is a doctor, registered medical practitioner who provided medical services from the Surfers Paradise Practice only between about July 2017 to December 2020.
- Section 133 of the AD Act makes the First Respondent company vicariously liable for the acts of the 2nd and 3rd respondents if any such acts are determined to be in contravention of the Act.
Non publication and closed hearing application
- At the outset of the hearing, the Applicant sought a nonpublication order, and a closed hearing. The tribunal had previously entertained but declined to make such orders.
- In support of his application for non-publication orders the applicant contended that the matters raised in in the proceeding are sensitive in nature and that his mental health would be negatively impacted if an order for non-publication was not made.
- Section 229 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides for inspection of the QCAT register of proceedings. Section 230 of the QCAT Act provides for inspection of a QCAT record of proceedings.
- Section 66 of the QCAT Act provides for non-publication orders made under the QCAT Act. It provides relevantly as follows;
(1) The tribunal may make an order prohibiting the publication of the following other than in the way and to the persons stated in the order—
- the contents of a document or other thing produced to the tribunal;
- evidence given before the tribunal;
- information that may enable a person who has appeared before the tribunal, or is affected by a proceeding, to be identified.
- The tribunal may make an order under subsection (1) only if the tribunal considers the order is necessary—
- to avoid interfering with the proper administration of justice; or
- to avoid endangering the physical or mental health or safety of a person; or
- to avoid offending public decency or morality; or
- to avoid the publication of confidential information or information whose publication would be contrary to the public interest; or
- for any other reason in the interests of justice.
- The tribunal may act under subsection (1) on the application of a party to the proceeding or on its own initiative.
- He did not maintain that application for a closed hearing when pressed since no persons other than the parties, their witnesses or Tribunal staff attended the hearing at any stage.
- I do consider it appropriate to make a direction requiring an amendment to the title of the proceedings to substitute for the Applicant’s name, the name Albert to substitute the Applicant’s name. The respondent did not oppose that course. I also order pursuant to s. 191 of the QCAT Act that the identity of the Applicant is not to be disclosed.
- Section 7 of the AD Act prohibits discrimination on the basis of certain attributes which specifically include: ‘(a) sex’; (b) relationship status; ‘(f) age’; (i) religious belief or religious activity ‘(m) gender identity’ (n) sexuality;
- Part 3 of Chapter 4 of the AD Act, deals with ‘Unlawful Request for Information’. Section 124 deals with requests for unnecessary information:
- A person must not ask another person, either orally or in writing to supply information on which unlawful discrimination might be based.
- Subsection (1) does not apply to a request that is necessary to comply with, or is specifically authorised by-
- an existing provision of another Act; or
- an order of a court; or
- an existing provision of an order or award of a court or tribunal having power to fix minimum wages and other terms of employment; or
- an existing provision of an industrial agreement; or
- an order of the Anti-Discrimination Tribunal.
- It is a defence to a proceeding for a contravention of subsection (1) if the respondent proves, on the balance of probabilities, that the information was reasonably required for a purpose that did not involve discrimination.
- Neither party in the present case made submissions which directed themselves to the correct test to decide whether section 124 had been contravened, irrespective of whether there was in fact a discriminatory act. In other words, whereas for example, in 3 of the 4 Commonwealth Anti-discrimination statutes – the Age Discrimination Act 2004 (Cth), the Disability Discrimination Act 1992 (Cth), and the Sex Discrimination Act 1984 (Cth) – it is unlawful for a person to engage in direct discrimination when requesting or requiring another person to provide information in connection with the first person doing a particular act that would itself be discriminatory. The Sex Discrimination Act 1984 (Cth) grants an exception to the operation of its section 14 concerning asking a person in a job interview whether she is pregnant where the information is requested about a person's medical history. But at the centre of the prohibition is engaging in direct discrimination when requesting or requiring another person to provide information. No such requirement exists in section 124 of the ADA Act.
- I was not referred to any authority on the proper construction of section 124. Initially the Respondents submitted in its Contentions that the information requested was not information on which unlawful discrimination might be based, but withdrew that submission in final addresses.
- The Respondents submitted that the Applicant was never refused the provision of any goods and services, in this case medical and health services, by the Respondents. The Respondents submitted in closing argument that providing medical records to be on forwarded was part of the provision of medical and health services by the Respondents. That concession was properly made in my view The Applicant asserts at a level of generality that it was made clear he would need to fill out a form providing the information if he wanted his medical records to be on forwarded.
- It seems to me that the clear language of the section makes it unlawful to request information on which unlawful discrimination might be based, independently of whether any unlawful discrimination is intended or in fact perpetrated. The effect of that then is that unless the section 124(2) carve out or the section 124(3) defence excuses a request for such information, it might be deemed unlawful, even if the purpose is prima facie and obviously a proper one, for example, to obtain a relevant medical history from a patient.
- In K v S & N Company  QADT 11, Member Forrest, as he then was, found there to have been a contravention where an employer asked an employee how many children she had and how old they were. He held that since Section 7 of the Act prohibits discrimination on the basis of certain prescribed attributes, including parental status and family responsibilities, and accordingly, that he did ask her questions which effectively required her to supply information in the form of answers “on which unlawful discrimination might be based. Hence, that did not require that there actually be any discriminatory conduct as such, which followed on from the making of the request.
- Member Forrest held at : “Prima facie, whether it was in the form of idle chit chat or not, Mr. S breached the prohibition in s. 124(1) of the Act in asking those questions.”
- There has been more recent authority which has dealt with this issue, and the approach taken in those cases has been consistent with that same approach. Examples include most recently Anters v JM Group Holdings Pty Ltd & Anor (No. 2)  QIRC 131 where a potential employer was alleged to have made unlawful requests for information that he was asked a potential employee to provide a copy of his passport or birth certificate before a telephone appointment his date of birth (an optional question); and to indicate whether he was an Australian Citizen. Other examples include Cook v State of Queensland (Queensland Police Service) & Anor  QCAT 216, a detective asking questions about a suspect’s mental health condition; Grimsey v Laketrend Pty Ltd  QIRC 32 age; Taumoefolau v University of Queensland & Blakeney  QIRC 080 family connections at a university;
The New Patient Forms and the relevant history of dealings between the parties
- I find, and it is not controversial, that the Applicant was already a patient at the First Respondent, having received medical and health services from the First Respondent in 2017 2018 and early 2019.
- The Applicant alleges that he previously filled out a ‘MDC Varsity Lakes’ patient information form, which requested his religion, amongst other things and appears to be dated 27 October 2017.This not the conduct to which this complaint relates. He suggests that this showed some kind of pattern of behaviour by the First Respondent. It was incapable of doing just a thing because even if it was a form given to him to complete, it was not given to him by any of the present Respondents.
- He had, I find, previously on or about 6 January 2019 filled out, signed and returned a new patient details form, very similar to the August 2020 blank New Patient Form which he was sent and now objects to as requesting unnecessary information. He completed that form in January 2019 when he was a patient at the Surfers Paradise Practice. I reject his assertion that the document is not in his hand writing. The evidence does not go to explaining why he would only have provided that form then, despite having been a patient for 2 years previously.
- The First Respondent’s New Patient Details Form that the Applicant signed and returned in January 2019 listed the Applicant’s name, date of birth, sex, postal address and email address. It had a space for, but he did not provide any information about, the Complainant’s marital/relationship status, country of birth or occupation, notwithstanding that this information was requested in that form. There is no evidence that he was prevailed upon to give the “missing” information not set out in this form.
- There was a considerable body of evidence which concerns whether or not the Applicant had properly or improperly requested that the Third Respondent doctor sign various medical certificates for him.
- The Second Respondent swore, and I accept that in or around May 2019, Bond University sent a fax to the Surfers Paradise practice requesting confirmation of the authenticity of medical certificates that it said were provided to Bond University by the Applicant. The Practice Manager at the time was dealing with Bond University's request and she informed her about the request.
- On 16 May 2019 at 7:10pm, the Applicant emailed the Surfers Paradise Practice reception and requested that Dr Alamgir sign the attached medical certificates and the Applicant re-attached two medical certificates for Dr Alamgir to sign. They sought excusal from responsibilities associated with his law studies.
- On or about the 19th of May 2019 the Second Respondent, signing off as the “senior medical receptionist” for the First Respondent wrote to the Applicant, saying that the third respondent Doctor was not able to sign any further documentation. The letter asserted that the doctor had not seen him as a patient at that practice personally. It asserted that they had a record of his having attended the Surfers Paradise clinic 5 times in January and February 2019 and that the dates for which he was requesting medical certificates were in April 2019 and hence that the doctors at that practice could not sign the medical Certificates for him. This is significant because it shows that more than a year before the Applicant alleges that he conversed with the Third respondent in August 2020 and was asked to indicate his religion, the practice had noted that he was not a doctor who had seen or treated the Applicant.
- There seems to have been no further formal correspondence between them on that issue. On 24 September 2019, the Practice Manager sent a Canadian Police Constable a letter signed by the Third Respondent Dr Alamgir confirming that Dr Alamgir never saw the Applicant as his General Practitioner. The letter was later held to be inappropriate communication of personal information about the Applicant, and no doubt he was very unhappy with the practice as a result.
- The Applicant claims that about a year later on 1 August 2020 he sent a letter from Alberta Canada to the Surfers Paradise surgery, by ordinary post but did not email, for reasons that he did not explain, a letter in the following terms;
August 1, 2020 via mail
Dear My Doctors Clinic,
I require a copy of any and all information within the possession of mydoctorsclinic locations 3b/191 Varsity Parade, Varsity Lakes QLD 4227 and Piazza 16, 3221 Surfers Paradise Blvd, Surfers Paradise QLD 4217. They are 2 sister clinic locations with the same management, and their doctors routinely travelled and worked between the 2 sister clinic locations.
To be clear, I require a copy of any and all certificates about me within their possession, and any and all emails that the clinics have sent to me and that I have sent to them.
I also require any and all prescriptions they ever gave me and any and all patient intake sheets, and any notes on the file, and any computer notes the doctors made during any & all visits.
I also require any video and audio footage that they have pertaining me, and any internal memorandums and memos, and any and all internal emails between mydoctorsclinic staff and their doctors that ever took place or occurred in connection with me.
I also require a copy of any and all emails that they have deleted in connection to me whatsoever. I require a copy of any and all emails and their enclosed attachments sent to my email address… from [email protected] between May 6, 2019 — May 9, 2019.
I require a copy of any and all certificates signed by Doctor Alamgir between May 6, 2019 — May 9, 2019. I require any and all information, documentation whatsoever or howsoever related to me between 2017 up to and including the current time. Anything whatsoever, any notes, any notations made on any of my files and folders... anything and any information whatsoever that the above clinic and its 2 locations have.
Please know that I understand that the varsity lakes location closed down, therefore, please ensure that you have obtain a copy of any and all such records.
Please also ensure that you have an independent third party obtain a copy of such records, given the fact, I understand that the management has been accused of engaging in dodgy practices and are currently under statutory investigation. Thank you.
- It then provided his name, actual Alberta address, his email address and phone number.
- The respondents dispute ever having received that letter, and point to the fact that it was allegedly mailed not emailed, and there would be no reason to “snail mail” it when like much other correspondence between them, it could have been emailed for a timely response. There is a suggestion it may have been sent to the closed practice address, however since it notes that he understood that the varsity lakes location had closed down, he would not have sent it there.
- I am not persuaded that the August 1, 2020 letter was actually sent to an address that the First respondent conducted business from, and am satisfied that it was not in its staff hands on 20 October 2020. The Applicant may well have thought they had it and rang that day to follow up on it. There is no question that he did speak to staff on the 20th August and that he wanted records.
- Despite there having been controversy about it by the Respondents, I accept the evidence of the Applicant and of the Second respondent that on 20 August 2020 the Applicant was sent an email by a staff member of the First respondent with an attachment which was a blank New Patient Details Form. I accept that the new patient details form that had been used by the First Respondent for the Surfers Paradise Practice since about January 2018. The Complainant never filled in, signed or returned that form. The covering email said “Please find attached the Patient Information sheet as requested. Thanks, you for your patience”. It was stated to have come from the Medical Receptionist of the Surfers Paradise Clinic and used the email address of that clinic. No one was called to identify who may have been the person who sent it, and based on what instruction or event it was being sent. I accept the Second Respondent’s evidence that she did not send it.
- Dr Hayat Jamaldini, a director of the First Respondent swore, and I accept, that new patients who have attended the Surfers Paradise Practice or the Varsity Lakes Practice have been requested to complete a form with information about the patient, including details of their name, date of birth, age, country of birth, ethnicity, sex, marital status, address, email, phone number, and next of kin. He gave examples of the forms that have been used by the practices to collect patient details.
- He swore, and I accept, that new patients who attend other general practices, clinics, and hospitals in Australia are also required to complete forms that request their patient details.
- He swore, and I accept, that it is necessary for a medical practice and a General Practitioner to request the patient details from patients because:
- The patient's name is essential for the accurate identification of the patient, maintenance of appointment records, and the facilitation of billing processes for the patient and Medicare.
- The patient's date of birth and age play a vital role in the precise identification of the patient, enabling accurate diagnosis and consideration of age-related factors affecting treatment decisions and clinical risk assessments.
- A patient’s country of birth and ethnicity is critical for assessing suitable treatment options and clinical risk factors. Certain medical conditions and diseases exhibit varying prevalence across distinct ethnic backgrounds; thus, this information is needed for accurate diagnosis and treatment.
- A patient’s sex is necessary for accurately diagnosing the patient and considering appropriate treatment options and clinical risk factors. There are certain drugs that can only be prescribed to females or males. So specific medications are gender-specific, and distinct health risks are associated with each gender. There are also higher risks of certain illnesses in females and males.
- A patient’s marital status may have relevance to the evaluation of the patient's support networks and the formulation of an optimal treatment plan.
- A patient’s address and email, although not the subject matter of complaint in this case, are necessary for identifying the patient and contacting the patient. That is, for patient identification and communication to the patient obviously.
- Thus, his evidence on those issues, demonstrate the necessity and certainly the legitimacy of the purpose of gathering these patient details within the context of a medical practice and a particular General Practitioner's responsibilities.
- He swore, and I accept, that the patient forms used by the Surfers Paradise Practice and the Varsity Lakes Practice had never requested the patient to provide information about their religion but that in any event, it would not be inappropriate for a medical practice to request a patient's religion.
- He swore, and I accept, that it may be appropriate for a medical practice to request a patient's religion following reasons:
- a patient's religious beliefs on treatment options, particularly in cases involving restrictions on the use of blood products for individuals adhering to the faith of Jehovah's Witnesses, and further recognizing that certain religious affiliations entail limitations on medication usage and dietary preferences, such as those which follow:
- Patients of Islamic faith may abstain from certain medications; patients who identify as Hindu may refrain from the consumption of meat; and those of Jewish faith may abstain from pork and gelatine-based products.
- These religious considerations have substantial significance in the determination of appropriate treatments for a patient, affecting the selection of medications and vitamins that can be prescribed.
- In the spirit of upholding and respecting a patient's religious convictions, it is incumbent upon the General Practitioner to inquire about and be informed of the patient's religious affiliations, where applicable, to ensure that treatment recommendations are aligned with and respectful of the patient's religious beliefs.
- He swore, and I accept, that apart from the Applicant in these proceedings, he was not aware of any other patient who has raised any concerns with providing the patient details set out in the form or otherwise, in the approximately 21 years he has practised as a medical practitioner. When he| worked in various hospitals in Sydney, the new patient forms completed by patients requested the patient’s religion, as well as the other Patient Details, and in his experience this was very common, especially because hospitals provide patients with different treatments and foods. He was not aware of any patient who raised any concerns about providing information as to their religion but if a patient did not want to provide their religion, they could leave this part of the form blank.
The events of 20 August 2020 - dealings with surgery staff and the Applicant’s versions
- The Applicant’s version of the events of 20 August 2020 has not been consistent. In the complaint form which he lodged with the Human Rights Commission about 3 weeks after the 20th of August 20 20, he only peripherally mentioned the events of 20 August. Much of which he wrote about concerned the circumstances of obtaining the medical certificates, the report which was sent to the Canadian police about him by the surgery and breaches of his privacy. These are some of the extraneous matters I mentioned at the outset of these reasons.
- His description of the events of 20 August 2020 were limited to 3 short paragraphs. They did not describe any particular conversation with anyone but said that he made a request for documentation with respect to his prior surgery attendances and in response, the surgery reception stated that he need to fill out a new patient admission form so as to receive such information. He made no reference to any conversation with the Second or Third Respondents. He did not condescend to describe how this communication occurred, whether it was by telephone or howsoever. He did not describe himself as having been treated in a condescending or humiliating way in any such conversation. Indeed, he refers to then having had a closer review of the form and after referring to that in the description of what occurred, he mentioned at a level of generality that he was also advised that he was to provide his religion.
- In the first correspondence with submissions to this Tribunal dated 12 May 2021 2021 he said:
On or around August 2020, I sought a copy of certain information from the Respondents as permitted by law, and in response, staff for the Respondents advised and requested of me that I was to fill out the attached form (Please see attached Exhibit "A") which was sent to me via email by the Respondents, as confirmed by the internet protocol (I.P.) and source of such email along with Shelley Lindsay's own email admissions, before the information sought by me of the Respondents would even be considered by the Respondents to be released to me.
Such form requested from and of me, among other unnecessary information contrary to section 124 of the Anti-Discrimination Act of Queensland 1991 (the "Act"), country of birth, DOB, ethnicity, marital status, sex and age.
Over the phone, I was asked by the Respondents on or around August 2020 to provide to them my religion as well, and I found this to be discriminatory, offensive and odd.
I understood that MyDoctorsClinic ("MDC") used to be comprised of 2 or more Queensland based clinics owned and managed by the same management, more specifically, one clinic located in Surfers Paradise named MDC Surfers, and another clinic located in Varsity Lakes, named MDC Varsity Lakes.
Since MDC Varsity Lakes location closed approx. Dec.2019, I understood the remaining MDC Surfers clinic required new patient information forms to be filled out.
It should be noted that my previous MDC Varsity Lakes patient information form which I had previously filled out requested of me, among other things, religion (Please see attached Exhibit "B") and this can be confirmed, not only by the form enclosed within Exhibit B of this document which was faxed in 2018 by such MDC Varsity Lakes clinic location to, among other locations, other gold coast hospitals and clinics at my request and can be substantiated, but also by a plethora of other people and former patients of MDC Varsity Lakes who have also filled out and completed such form, and they too were asked by the MDC Varsity Lakes location to provide their religion which I submit is a particularly offensive request to make of the general public.
I submit that the above in paragraph 2 confirms MDC's inclinations of requesting people's religion and using such factors, among others, in internal systemic/systematic practices.
(Underling emphasis added)
- The Applicant does not identify how he came to speak to either of the Second or Third Respondents on that day, or what was said by any of them specifically, or what was said in response to what comments by him. There is no detail of any kind. Furthermore, he says he was asked by the each of the Respondents to provide state his religion as well. He says that “staff”, i.e., more than one person, for the Respondents advised and requested of him that he was to fill out the attached form. But those things are not what he says in the case advanced before me.
- In later correspondence with submissions to this Tribunal dated 25 July 2021 he said:
I was provided by the Respondents around August 2020, a form via email as admitted by them, including in emails they relayed the QHRC, and which can be confirmed and verified by the source of such email, such form which requested of me unnecessary information contrary to the Anti-Discrimination Act of Queensland 1991 (the "Act") including but not limited to, country of birth, DOB, ethnicity, marital status, sex and age or other protected grounds to that effect (Please see attached Exhibit "A") and over the phone, I was asked by the Respondents on or around August 2020 to provide to them my religion as well (the “Unnecessary Information”), all which I found to be discriminatory, offensive and odd.
In addition, in their 2017 patient intake forms, the Respondents actually requested as a category in their forms in writing, people’s religion on such forms, including my own, many of such forms having been requested by the Respondents to be completed by a myriad of different individual prior to them becoming clients of MDC in 2017, including at their varsity lakes clinic, whose forms had been faxed by such Respondents and their clinics to various public and private universities and insurance providers including but not limited to, OHS Allianz, Robina Hospital, Bond University…etc.
With respect to the 2017 forms used (Please see attached Exhibit “B”) and uttered by the Respondents which requested religion in writing, in addition to the same Unnecessary Information requested in the August 2020 emailed patient intake form, I shall be bringing a subsequent form 40 application, requesting, among other relief, that I please be able to have QCAT consider, and enjoin such additional complaint of the 2017 form used by the Respondents at that time requesting religion, given that it forms a fuller picture of this complaint, along with the fact it raises very high public interest and addresses particularly offensive conduct by the Respondents in requesting such Unnecessary Information from people, including religion, all which I emphasize and reiterate that is in the public interest to address.
The conduct of the Respondents greatly affected me and caused me a considerable amount of damages and detriment, including but not limited to, emotional and mental distress, stress, anxiety, pain and suffering, humiliation, anguish, loss of enjoyment of life and exacerbation of medical conditions, including because I feel and verily believe as the evidence suggests that Unnecessary Information, including my religion, country of birth, age, ethnicity, sex and marital status was used by the Respondents and their staff in their decision making processes in admitting, providing or denying me services and information as a patient, or any consideration thereto.
Such information, including religion and ethnicity, is not and was not reasonably required and the evidence highly suggests that upon myself providing such answers on the forms to the Respondents, I was treated differently or adversely.
It is unclear how religion, martial status and ethnicity, among other Unnecessary Information the Respondents requested of me and others, aided in the support and improvement of patient safety and wellbeing and how such supports clinical decision making by the Respondents, and such bald statements do not appear to be sufficiently, properly or at all articulated by the Respondents.
For example, I was also advised by the Respondents and their staff that because I was not an Australian citizen, that they did not have to respond to me and that their laws did not apply to me, or words to that effect, and it’s very likely that they made that determination after reviewing the Unnecessary Information they collected.
Furthermore, I was denied access to information after requesting such of the Respondents, (Please see attached Exhibit “D”) and had to approach public bodies in order to request that they compel the Respondents to provide such information which I was lawfully entitled to, such which still lacked full and complete disclosure upon the Respondents having eventually provided such to the aforementioned public bodies. Because I was a lawful noncitizen with a real and substantial connection to Queensland, Australia, implications of the Migration Act are also evident in this action, especially given the facts, particulars and circumstances of this matter.
In paragraph 15 of the Respondents contentions, and while the Respondent states that it never requested religion from me on any of its new patient forms, they do not deny having requested such information from me and others on their old forms as I understood, including the ones used at their old varsity lakes clinic location.
In addition, the Respondents requested Unnecessary Information of me on the form they provided me in August 2020, including before providing me the documents I sought as required or permitted by law and privacy legislation, and I believe that the Respondents also relied on this Unnecessary Information when refusing to provide accurate confirmation about emails, documents and certificates they themselves relayed to me or caused to be relayed to me via email from their clinic as confirmed by the internet protocol (I.P.) and message source of such emails which I was advised or understood federal statutory public bodies have traced right to their computer location upon myself having provided such to such federal statutory public bodies.
(Underling emphasis added)
- Again, in that long recitation, the Applicant does not identify how he came to speak to either of the Second or Third Respondents. What was said by them specifically, and in response to what comments by him is not detailed in any respect. In this version he now suggests that the Information, including his religion, country of birth, age, ethnicity, sex and marital status was used by the Respondents and their staff in their decision-making processes in admitting, providing or denying him services and information as a patient, or any consideration thereto. He says there that such information, including religion and ethnicity, is not and was not reasonably required and the evidence highly suggests that upon himself providing such answers on the forms to the Respondents, he was treated differently or adversely. That implies that he was the victim of actual direct discrimination. Those things are not what he says in the case advanced before me.
- Despite what he said in those submissions to this Tribunal dated 25 July 2021, he did not have any evidentiary basis to assert that in fact his religion, country of birth, age, ethnicity, sex and marital status were used by the Respondents and their staff in their decision-making processes in admitting, providing or denying him services and information as a patient, or any consideration thereto.
- He gave an expanded and significantly differently developed version of these events in his oral testimony. In that testimony, he said that in the 20 August conversation, he was told by someone whom he did not identify, that he was not a patient of that clinic. He said he called again and was requested orally to provide his religion. He said he was denied services by a female but didn't know who she was. That person is alleged to have said he was not a patient of the clinic, and so she would not provide information that he was requesting. He said, in the course of that evidence, that he was “trying to remember” what happened, and was clearly struggling to give a coherent version of what happened and why.
- He gave a disjointed description of the sequence of events that day which seemed to me to be entirely implausible and involved mutually inconsistent propositions. For example, he said that he was being refused information because he was not a patient while simultaneously being asked to give information so that he could be given those records. And he clearly had been a patient of the practice, and was entitled to be provided with his records even if he was not. It would be a serious matter for a medical practice to wrongfully refuse a patient or former patient access to his medical records in the spurious basis that he was no longer a patient.
- He then said that the Second Respondent Ms Lindsay had said that day that it was because he was not an Australian citizen that they did not need to respond to him. What the issue of his citizenship had to do with the request and compliance with it is not apparent. He said that he was feeling angry and was essentially brushed off by her.
- He then suggested that a GP Dr Alamgir, the Third respondent called him back and asked for his religion. This statement is not put in any conversational context. Nor was how the Doctor came to be speaking to him explained.
- He says that he responded that he did not feel comfortable giving this information and wanted to speak to the manager. That now suggested that he spoke to Ms Lindsay for the first time after speaking to Dr Alamgir.
- He then suggested that it was then that Ms Lindsey, the second respondent is said to have called back and he told her that he needed to be provided with the information his doctor had requested. He said he wanted his medical information sent to his Canadian doctor and also to get a copy for his own use. He swore that in response the Second Respondent was condescending in her conversation with him spoke down to him. He said there may have been profanity from her although he couldn't recall specifically.
- He said that he was angry and it was then that she became even ruder. He said that he was asked to fill out a form that would be sent to him. They were running circles around him. He said he understood at that time what the law was and his entitlement to that information.
- He said he was confused and perplexed and the result the response was even more rudeness and dismissiveness and condescending conduct. He said it was as if they were goading him or picking up on the fact that they were intentionally offending him.
- In describing his reaction to all of this, he said he suffered a lot of hurt and humiliation, and it was as if they were saying” You're not Australian, go away”. He suggested that he was very offended by all of this and was depressed and felt horrible. He eventually put into evidence a one sentence medical report from a Canadian doctor dated 28 November 2021 that stated that he had been “seen and assessed in our clinic. He suffered PTSD due to dealings from Surfers paradise clinic” (sic). A more perfunctory cursory and superficial analysis could scarcely be imagined. The Doctor who wrote it was not called to give evidence, nor was there a statement of any kind from the Doctor which explained what he was referring to or how he had arrived at the conclusion that he suffered PTSD, at all, or as a result of whatever dealings he was told the Applicant had had with the surgery, whenever it was that he was said to have had them.
- In cross-examination, it was put to the Applicant that he had omitted all of this conversation from his statements and in the original complaint. It was put to him that he did not even make a phone call that day to which he said that he had. His response was that it was he that had called the surgery that day.
- And at that point in his evidence, he volunteered that he would like to check recordings that he had made of conversations with the clinic. to see whether he had a record of this particular conversation.
- In my view it is an extraordinary proposition to suggest that if it was possible, he had a recording of this conversation, and that indeed that he had other recordings of other conversations with the clinic which were material, that his statements would not have mentioned it.
- He was asked to consider in re-examination what recordings he had. In the end, he conceded he had no recording of this conversation. But was not apparent or explained was why he thought it appropriate to record any conversations he was having with that surgery around that time. Clearly routine conversations with the receptionists of Doctor’s surgeries are not tape recorded. It is open to be inferred that to have done so was part of some evidence collecting exercise he was involved it.
- So much of what the Applicant said in his evidence had occurred that day was first mentioned in his oral testimony.
- No hypothesis was put forward to explain why anyone would want him to have completed another patient information form which provided information he had already provided.
- I did not consider the Applicant’s evidence to be reliable in relation to whatever dealings he had with surgery staff or a Doctor that day were.
The evidence of Shirley Lindsay the Second Respondent
- Shirley Lindsay, the second respondent, also gave evidence about what occurred that day. As I have said earlier, she was employed by the First Respondent from around July 2017 to May 2022 as a permanent part time second in charge of the practice working out of the Surfers Paradise Practice mainly, and was briefly seconded to the Varsity lakes practice. She gave her evidence in a straightforward and direct way. She did give me the impression though that she may have been unhappy with the Applicant when she spoke to him that day, and may well have been very direct with him.
- She clearly had a very limited recollection of any conversation with him of that day.
- She said and I accept, that her conversation with him was about the surgery not providing any more medical certificates to him. She said and I accept, that it was not she, but the receptionist who sent the patient forms to him that day because the receptionist had been requested by the Applicant to do so. She considered that she was dealing with an issue that had involved him “hassling the staff” to provide him with more documents that might have related to his worker's compensation claims and certificates.
- In that context, she may well have been quite short with him, having regard to the history of the surgery, and having participated in an investigation into whether fraudulent claims had been made using certificates purportedly issued by the surgery. Accepting that to be so, it does not seem to me that it is likely or even probable that a conversation involving the topics that the Applicant suggests would have occurred that day. I make it clear that no part of these reasons decides any issue concerning the extraneous matter concerned with whether or not there were fraudulent claims made or attempts at making claims using certificates purportedly issued by the surgery.
- Nothing was put to her which suggested that she had any particular animosity toward the Applicant, such that she might use profanities and be condescending toward him.
- I am not persuaded on the balance of probabilities the applicant had a conversation with the receptionist and the 2nd respondent that day in which he was refused any medical services or told that he had to provide information in the form. I reject the evidence which the Applicant gave in oral testimony as to of the events of that day in his dealings with surgery staff.
The alleged oral request for information about religion from Dr Abdur Alamgir
- The Applicant pointed to no dates, times or places, identified no records, emails to him or other objective evidence of any kind, that showed that the Applicant was ever attended upon by Dr Abdur Alamgir.
- Moreover, there is no, and certainly no plausible explanation on the evidence, for why Dr Abdur Alamgir would speak to him by phone on 20 August 2020 while the Applicant was in Canada, even if he was pursuing copies of his records.
- A considerable amount of the material filed in support of the Respondents’ case, and also the cross examination by the Applicant concerned a letter Dr Abdur Alamgir had drafted and sent to Canadian police on 24 September 2019, about a year before the 20 August 2020 phone calls that this Application concerns. In it the Doctor asserts that he had not seen the Applicant in the role as his GP and implied that letters the Applicant had sent, suggesting the Doctor had signed medical certificates as his doctor were untrue. There would have been no plausible reason for him to write such a letter on 24 September 2019 were what it said not true, but more importantly, it indicates that if the Doctor had that state of mind, even if it was not in fact the case, he was most unlikely to be taking phone calls from him personally a year later in the context of the applicant chasing his records from the practice.
- No part Dr Alamgir’s functions in that practice would have had him doing such administrative tasks. The reception staff handled such things. But even if they did speak on the phone that day there would have been no reason for the Doctor to be asking him to identify his religion at that time. He was not, on any view of the matter treating him that day. His religion was of no significance at all to his pursuing copies of his records for past treatment, or any response the Surgery was likely to give to those requests. One can reasonably infer that, whether or not the 1 August 2020 letter was sent, it reflected the Applicant’s state of mind and what it was he was pursuing with or seeking from the practice.
- He advanced no hypothesis which explained why the doctor came to be speaking to him that day. Nor why the Doctor was asking him for his religion. No hypothesis was put forward to explain how the doctor came to be on the phone to him that day, dealing with a mere administrative matter, when the doctor was a treating doctor not an administrator. Dr Alamgir denied having any conversation of any kind with him that day. I accept that evidence. I am not persuaded that Dr Alamgir spoke to him that day at all, least of all that he made the alleged request for information about his religion.
The section 124(3) Defence
- While the Respondents deny that section 124(1) of the AD Act has been breached, they say that even if it has, the Respondents have established that the information requested by the First Respondent from the Complainant was reasonably required for a purpose that did not involve discrimination within the meaning of s 124(3) of the AD Act and that the purpose of requesting it was the provision of relevant and best quality medical and health care to the Complainant.
- They submit that the information requested was reasonably required to assist with determining important indicators of clinical risk factors and therefore help practitioners to provide relevant and best quality care to the Complainant and improve patient safety and wellbeing because that information supports clinical decision making.
- I have already mentioned the evidence of Dr Hayat Jamaldini, a director of the First Respondent who swore, and I accept that new patients who have attended the Surfers Paradise Practice or the Varsity Lakes Practice have been requested to complete a form with information about the patient, including details of their name, date of birth, age, country of birth, ethnicity, sex, marital status, address, email, phone number, and next of kin. He gave examples of the forms that have been used by the practices to collect patient details. He also swore, as I said earlier in these reasons, that new patients who attend other general practices, clinics, and hospitals in Australia are also required to complete forms that request their patient details. He explained why, and this evidence is set out earlier in these reasons.
- Dr Harold Jacobs was called to give expert evidence for the respondents. He swore and I accept that the RACGP is the professional body for general practitioners in Australia and it is responsible for maintaining standards for quality clinical practice, education and training, and research in Australian general practice. The RACGP releases Standards for General Practices to support general practices in identifying and addressing any gaps in their systems and processes. The most up to date edition is the Standards for general practices (5" edition) (RACGP Standards). There were equivalent standards that applied in 2020.
- He swore and I accept that the RACGP Standards state that:
- missing or misrepresenting information in a patient’s health record can have substantial implications for clinical care delivery;
- if a patient's assigned sex at birth and gender are conflated and inaccurately recorded, appropriate treatments might not be offered;
- to improve the accuracy of responses when collecting information from patients, medical practices can ask questions that distinguish the identity (i.e., male/female) and descriptors of behaviour, attraction and expertise (i.e., ask who the patient's sexual partners are);
- where patients were born, where they grew up, or where their parents are from may indicate that they are at higher risk of developing certain health conditions.
- He swore and I accept that the RACGP encourages medical practices to identify and record the Aboriginal or Torres Strait Islander status and cultural background of all patients, as this information can be “an important indicator of clinical risk factors and therefore help practitioners to provide relevant care.
- He swore and I accept that the RACGP has also released a sample new patient registration form, which requests information about the patient's: (a) date of birth; (b) gender; (c) marital status; (d) cultural background; and (e) country of birth.
- Due to his experience as a surveyor for General Practice Accreditation, he had extensive experience with the requirements of the RACGP Standards. He had an in-depth knowledge of the patient details that a medical practice must collect in order to deliver medical services in compliance with the RACGP Standards. In his professional opinion, there are numerous reasons why a patient's name, date of birth, age, sex, marital status, ethnicity, country of birth and religion are information that is reasonably required by a medical practice. I accept this evidence an inherently plausible and reasonable.
- He swore that if he was to attend a medical practice for a Practice Accreditation Visit and the practice’s patient intake form did not request information about the patient's date of birth, age, sex, gender, marital status, cultural background or ethnicity, he would proceed to record on the form that the medical practice had not complied with the RACGP Standards, because that was the true position. Of course, the RACGP Standards do not define or establish what is reasonably required for a purpose that did not involve discrimination within the meaning of s 124(3) of the AD Act, but the fact that those standards recognise that those matters implicitly recognise the existence of a legitimate need and function for obtaining that information.
- He swore and I accept that obtaining a patient's date of birth is imperative for the medical practice, General Practitioners, and ancillary staff to effectually identify the patient. Given the possibility of multiple patients sharing the same name within a medical practice, the patient's date of birth serves as a vital discriminative factor to distinguish between individuals and ensure accurate identification.
- The RACGP Standards require medical practices to use three approved patient identifiers to reduce the risk of misidentifying patients. Approved patient identifiers include the patient's name, date of birth, gender, address, patient health record number and Individual Healthcare Identifier. Items such as Medicare cards are not approved patient identifiers.
- He swore and I accept a patient's age is an important factor that is significant for healthcare decisions by a General Practitioner. For example, considerations such as:
- child health – developmental milestones, immunisations, schooling, behaviour;
- adolescent health – sexual health, mental health, independence from parents;
- young adult – relationships & reproductive issues, establishing a family & career
- middle age – the onset of chronic disease, relationship breakdown, children leaving home;
- retirement – disengagement due to retirement, financial concerns;
- senior and aged care – chronic disease established, disability, loss of independence and end of life decisions.
- He swore and I accept that a patient’s sex is of considerable relevance in the context of proper healthcare by General Practitioners and the formulation of strategies for the prevention of specific diseases and illnesses.
- He swore and I accept that a patient’s marital status is important information for a General Practitioner to consider as it informs healthcare decisions by delineating the individual's relationship and family structures. These structures are relevant in identifying the patient's support network, encompassing both physical and psychological dimensions, and thus, are pivotal factors in healthcare assessments and recommendations.
- He swore and I accept that a patient's ethnicity holds significant importance, as it bears relevance to the patient's genetic risk profile and the cultural context of their life. Furthermore, a patient's ethnicity serves as a pivotal predictor of health and disease, some of which are exemplified by the following:
- Heart Disease Disparities: Certain racial and ethnic populations exhibit disproportionate rates of heart disease, a leading cause of mortality.
- Obesity and Diabetes Prevalence: First Nations people, for instance, have a higher prevalence of obesity and diabetes, underscoring the connection between ethnicity and certain health conditions.
- Thalassaemia Prevalence: Genetic disorder occurrences, such as thalassaemia, are more common in individuals from Mediterranean countries, elucidating the ethnic-based disparities in the prevalence of specific diseases.
- In light of these considerations, in his view a patient's ethnicity assumes critical significance in healthcare assessments, risk evaluations, and the formulation of tailored medical strategies.
- The RACGP Standards at page 80 state that ‘Collecting information about a patient’s cultural heritage before a consultation, for example by using a new patient form will help you to provide the most appropriate care’.
- He swore and I accept that a patient's country of birth is of considerable significance, as it offers additional insights into the individual's genetic and cultural heritage. It serves as an indicator of the patient's potential childhood environment and the diseases to which they may have been exposed. This information is invaluable for a comprehensive understanding of the patient's background and potential health risks.
- He points out that the RACGP Standards at page 80 state that ‘Where patients were born, or where they grew up, or where their parents are from may indicate that they are at a higher risk of developing certain health conditions. Similarly, this and other information, such as the language spoken at home, can help to identify patients who require specific care or targeted interventions’.
- He swore and I accept that a patient's religion and spirituality hold significant relevance in the healthcare, as they serve as key indicators of the patient's lifestyle choices and deeply-held beliefs. This is exemplified by the following:
- Jehovah's Witnesses, in adherence to their religious beliefs, abstain from the use of another creature's blood to sustain human life, thereby refusing blood transfusions as a viable healthcare option.
- People of the Muslim faith engage in Ramadan, a month of fasting, which profoundly influences dietary considerations within a patient's healthcare plan.
- Observant Jewish patients refrain from the consumption of specific foods, such as pig products and certain seafood, necessitating careful consideration of dietary preferences in a patient's healthcare plan.
- He swore and I accept that understanding a patient's religious and spiritual convictions is integral to providing healthcare that respects and accommodates these beliefs, thereby ensuring the patient's holistic well-being.
- He swore, and I accept that a patient's religion and spiritual beliefs assume significance in addressing ethical dilemmas, including but not limited to issues such as abortions, end-of-life choices, circumcision, and organ transplants. These deeply held convictions can have a substantial impact on the decision-making process and ethical considerations surrounding these medical and healthcare issues.
- The RACGP Standards specifically state at page 28 that in providing patient healthcare, medical practices must consider and respect a patient's beliefs and religious and cultural backgrounds.
- There was no serious challenge made to this body of evidence that I have summarised above by the Applicant, and he did not address it in his final submissions, or oral address.
- It is clear from the evidence before me and I find that the Respondents have established that the information requested by the First Respondent from the Complainant in the patient form, if it was requested, was reasonably required for a purpose that did not involve discrimination within the meaning of s 124(3) of the AD Act and that the purpose of requesting it was the provision of relevant and best quality medical and health care to the Complainant. I find in any event that they did not request it from him merely by virtue of having emailed to him at his request, the relevant form. They did not need any of the information to be provided to them, as they already had it.
- I have found that I am not persuaded that a receptionist and the Third respondent asked him to identify his religion in any 20 August 2020 conversation that either of them might have had with him. It follows that if either of them did ask that question, and there was a legitimate purpose in so asking, that doing so was protected by the s 124 (3) defence. As I have said earlier, there is no plausible reason for why such a conversation would have taken place that day anyway.
Remedies and compensation
- Under s 209 of the ADA Act, if the Tribunal decides that the respondent has contravened the Act it may make one or more of the orders specified in subsections (a) to (h). They include, inter alia, requiring the respondent not to commit a further contravention; making an order for compensation; ordering the respondent make an apology (either private or public); requiring the respondent to implement programs to eliminate unlawful discrimination, etc. Also, under subsection (5) damage includes the ‘offence, embarrassment, humiliation, and intimidation suffered by the person’.
- The applicant sought a multiplicity of remedies in his material, including punitive and aggravated damages, neither of which is recoverable in applications of this kind. He sought orders that directed the surgery to improve its policies. He sought an order for an apology. He sought an order that seemed to suggest that he should be “restored” in some way or another to the state of equilibrium he had before the relevant incident in August 2020.Neither party made any submissions of any kind about these remedies, and whether they should or even could be granted.
- Had I upheld his version of events as to what occurred that day, I would not have ordered any of those remedies.
- Had I upheld the Application and not found that the defence was made out, I would not have accepted that the events of that day caused such distress and humiliation to him as he has suggested. I do not accept that he suffered PTSD because of any information he was asked for that day, or for what the form “requested”. I have found that they did not request it from him merely by virtue of having emailed to him at his request, the relevant form, but for the purposes of the present exercise will assume that they did.
- He would only be entitled to be compensated for the unlawful act, not other things that may have upset him. I do not consider that having a patient asked for the sort of information that he says he was asked for, would have had much, if any significance to the wellbeing of him as an individual and certainly would not have caused significant hurt and humiliation, particularly when he had previously provided it without objection or negative consequences.
- In K v S & N Company  QADT 11, an award of $2000 was made for a contravention of the section and in Willmott v Woolworths Ltd  QCAT 601 and award of $5000 was made. In the circumstances, and having regard to similar awards in those two decisions, and having regard to the fact that both occurred a considerable time ago, had I upheld the application in my view an appropriate award of compensation against the First Respondent would have been $3500, and against the other 2 respondents $2000 in each case.
- In the circumstances, I dismiss the application.
- I order that the application be dismissed.
- I order that pursuant to s. 191 of the Act that the identity of the Applicant is not to be disclosed.
- I make a direction requiring an amendment to the title of the proceeding to substitute for the Applicant’s name, the pseudonym Albert, and direct that on future tribunal documents the Applicant’s name not appear, and for the word Albert to appear as his name.
- The application for a nonpublication order, and a closed hearing order are dismissed.
- The parties have liberty to apply in respect of any other consequential or other orders which might be required to be made.
- Published Case Name:
Albert v Global Healthcare Pty Ltd & Ors
- Shortened Case Name:
Albert v Global Healthcare Pty Ltd
 QCAT 428
Member P Roney KC
09 Nov 2023