hepatitis victoria stigma and discrimination forum · hepatitis victoria stigma and discrimination...

Hepatitis VictoriaStigma and Discrimination ForumExploring the complexities of hepatitis-related stigma and discrimination from personal and professional perspectives

Melanie EagleCEO, Hepatitis Victoria

Dr Bruce BolumDr Bruce Bolum Chief Preventive Health Officer, Department Health and Human Services

HEPSpeakersExperiences of stigma and discrimination having lived experience of viral Hepatitis

Copyright © Hepatitis Victoria

Disability Discrimination Legal Service Inc

7 December 2017 Disability Discrimination

• Hepatitis Forum Deborah Randa Solicitor Community Legal Education Coordinator

The Disability Discrimination Legal Service Inc. (DDLS) is a state-wide Community Legal Centre that specialises in disability discrimination legal matters.

DDLS : is managed by a community based management committee; has 4 paid members of staff plus volunteers(law students and lawyers); is open Mon-Fri (9.00am to 5.00pm) with one evening clinic per week.

Services provided to clients are free up to commission stage. Past this stage there may be costs e.g. barrister


Functions and Services of DDLS

Include:• Casework for clients with disabilities: advice, letters of

information/demand, lodging complaints, representing clients in conciliation and assistance with cases before the Victorian Civil and Administrative Tribunal and the Federal Circuit Court/Federal Court of Australia. Sometimes disputes can be resolved without legal action, if organisations that are not observing disability discrimination law are made aware of their responsibilities e.g. via letters.

• Community Legal Education to service providers about rights of people with disabilities and responsibilities of community under disability discrimination law.

• Law Reform via submissions and endorsements of other reports at both a state and federal level. DDLS aims to shape policy and law to enhance the lives of people with disabilities.


Jurisdiction

Victoria Commonwealth

Equal Opportunity Act 2010 (Vic)

Victorian Equal Opportunity and Human RightsCommission

Victorian Civil and Administrative Tribunal

Disability Discrimination Act 1992 (Cth)

Australian Human Rights Commission

Federal Circuit Court /Federal Court of Australia


Overview : Who is covered by the DDA/EOA?

• Individuals with disabilities; Carers or associates facing discrimination; representative of a person discriminated against due to disability.

Overview of Law: What is a Disability?

Broad definition to cover maximum claims

• Disability includes; physical, intellectual, psychiatric, sensory, neurological, learning disabilities, physical disfigurement, the presence of a disease causing mechanism in the body and genetic disorders.

• Includes past present future and imputed disabilities.

• Includes behaviour that is a symptom or manifestation of the disability


Overview of Direct Discrimination

When someone treats you or proposes to treat you less favourably than they would treat someone else in similar circumstances because of the disability(DDA).

In EOA, it is enough just to treat someone unfavourably due to their disability for the treatment to be discrimination – no need for comparison to anyone else.

It is also discrimination not to provide reasonable adjustments because of the disability.

A reasonable adjustment is an accommodation that does not cause hardship to the other side

eg a person who speaks slowly due to Cerebral palsy is refused a job interview


Overview of Law: Indirect Discrimination

A person is required to meet some sort of unreasonable requirement that they cannot meet due to their disability, but which people without that disability probably will be able to meet .

Being treated the same as everyone else can put a person with a disability at a disadvantage

It is also discrimination to require a person to meet the criteria without reasonable adjustments

– Example: A teacher assessed the knowledge of a group of students by requiring them all to write a report, even though one member of the group had a learning disability, which affected their ability to write effectively, and there were other ways the student could have demonstrated their knowledge.


Overview of Law: Areas of Discrimination

• Disability discrimination is only unlawful in certain areas of public life.

• The main areas in which discrimination is unlawful are education, employment, accommodation, provision of goods and services, clubs and associations, sport, access to public premises and local government.

• If discrimination takes place in an area not covered by the Disability Discrimination Act (DDA) or Equal Opportunity Act (EOA), it is not unlawful.

• For example, if your neighbour, family, friend or housemate treats you badly because of a disability, it is not unlawful.


Reasonable adjustments - How far must you go?

• Whether adjustments are reasonable or unjustifiable depends on a number of factors and is determined on the facts of the casee.g. type of adjustment needed, respondent’s circumstances e.g. finances and ultimate costs/benefits to all concerned

• Under the DDA it is implied – Basically everything that is short of unjustifiable hardship (Watts case).

• Under the EOA stand alone obligations for

• Employment

• Education ; and

• Goods and services


Defences or Exceptions

There are some defences or exceptions to the law including but not limited to :

• Health and Safety;

• Court Orders/statutory authority;

• Unjustifiable hardship e.g. cost, time, others affected;

• Inherent requirements of work/genuine occupational requirements not met e.g. soldier could not undergo battlefield injury and medical treatment without endangering others with infection (i.e. bleed safely) (X v Commonwealth (1999) 200 CLR);


Equal Opportunity Act Section 86

Under this provision, acts of discrimination on the basis of disability arelawful, provided the discriminatory acts are ‘reasonably necessary’ inthe following circumstances:

• For the preservation of health or safety of any person (includingthe person discriminated against), or the general public; or

• To protect property

belonging to any person

(including the person

discriminated against)

or any public property


Disability Discrimination Act 1992 S 48 Infectious disease

• This part does not render it unlawful for a person to discriminate against another person on the ground of the other person’s disability if:

• (a) the person’s disability is an infectious disease ; and

• (b) the discrimination is reasonably necessary to protect public health

Approved Code of Practice for the Control of Work –related Exposure to Hepatitis and HIV virus in Australian Government Employment 20014Requires police officers to share information in relation to their blood borne disease as it is considered a risk


Forms of Redress

• Pre Commission activity - Letter of Enquiry/Demand

• Complaint to VEOHRC/AHRC - Conciliation

• Application to Federal Circuit Court /FCA or VCAT -Mediation/Compulsory Conference - Hearing

• Outcomes: • Apology

• Behaviour change

• Compensation -monetary,

• Training

• Policy Change for the future

• Reasonable Adjustments e.g. ergonomic desk/chair; late start, extra exam time, education aide

• Declaration ( by the court/tribunal)


JURISPRUDENCE: Case Examples

Matthew v Hargreaves (No.4)[2013] FMCA 4

• A local councillor spread information relating to an employee’s Hepatitis C condition to ‘anyone who was interested’ including electors, ratepayers, residents and the media.

• Held: Direct discrimination as it was not ‘reasonably necessary’ to protect public health (unlawful discrimination as not adequate defence).


Hay v Dubbeld [2005] VCAT

• Facts: Mr Dubbeld refused Mr Hay a tattoo service on the basis that Mr Hay had HIV and Hep C.

• Held: This was lawful discrimination under s80 EOA 1995 (now s86) as Mr Dubbeld was an amateur tattooist who was inexperienced and lacked the confidence in performing the procedure safely

• Real v Substantial risk • Objective test if

Discrimination is reasonably necessary


Contact details:

Deborah [email protected]

Website: www.communitylaw.org.au

Ph: 03 9654 8644

Fax: 03 9639 7422

TTY: 03 9654 6817© Copyright Disability Discrimination Legal Service Inc (DDLS) 2017Disclaimer; The material contained in this publication is for the purpose of legal education training and is only meant to be a guide.Please contact this service for individual legal advice.

mailto:[email protected]

Justine Vaisutis Head of Education and engagement, Victorian Equal Opportunity and Human Rights Commission

Understanding the new health complaints act 2016Hepatitis Victoria Stigma and Discrimination Forum7 December 2017

Karen Cusack, Health Complaints Commissioner

introduction

• Health Complaints Act 2016

• complaints resolution

• investigations

• Health Records Act 2001

• handling of health information

What doES THE HCC do?

• We:

• resolve complaints about health service provision

• can investigate providers who pose a serious risk to the health, safety or welfare of the public.

• are independent and impartial.

• can accept complaints from anyone, including third parties.

• review complaints data to identify trends and suggest quality improvements.

• resolve complaints about breaches of the Health Records Act 2001.

WHAT ISSUES DO WE RECEIVE?• Issues we commonly see include:

• poor communication about treatment, options, costs

• admission or referral problems

• lack of respect or privacy

• mishandled health information

• unsatisfactory treatment

• unprofessional behaviour

Our complaints process

CODE OF CONDUCT FOR GENERAL HEALTH SERVICES

Privacy protection is a balancing act

Maximising the level of control people have over their personal information

Ensuring the right information is available to the right people at the right time in the right wayto enable necessary operations and services.

Health records act 2001

• Purpose – section 1 • Fair and responsible handling of health information by:

• protecting privacy of health information;

• providing a right of access;

• providing an accessible framework for complaints resolution

Health records act 2001

• Health Privacy Principles (HPPs) Schedule 11. Collection2. Use and Disclosure3. Data Quality4. Data Security & Retention5. Openness6. Access & Correction7. Identifiers

8. Anonymity9. Trans border Data Flows10. Transfer / closure of practice

of health service provider11. Making information available

to another health service provider

Health records act: Key points

• Collect only the information you need.

• Advise people why you need the information and how it will be used and disclosed.

• Use and disclose for the primary purpose of collection unless the person consents or an exemption applies.

• Take steps to ensure the quality of the information.

• Secure the information.

Resources

• Brochures for consumers on complaints and their rights to access or amend their health records.

• See www.hcc.vic.gov.au for information on the Health Complaints Act and Health Records Act, how to make a complaint, the latest fees for accessing records and more.

• Contact us for advice anytime on 1300 582 113.

http://www.hcc.vic.gov.au/

Health Complaints Commissioner hcc.vic.gov.au1300 582 113

@HealthComplaintsCommissioner

@HCC_Vic

CONTACT US

Melanie Eagle,Owen Vickery

Hepatitis Victoria’s response to stigma and discriminaton


Stigma and Discrimination Resources

Information available on the Hepatitis Victoria website:• Stigma• Discrimination• Privacy and Disclosure• How to lodge a

complaint• Information for health

professionals• Exploring personal

stories of stigma and discrimination

• Links to research


Discrimination Resources


Privacy and disclosure


Lodging a complaint

• How to lodge a complaint

• Local complaint bodies

• State based complaint bodies

• Federal complaint bodies


Information for health professionals

• Ways to change practice to avoid discriminatory practice

• Information about our HEPReady courses


Research Links

Assorted studies on Hepatitis focused on various issues like:

• Stigma and discrimination

• Victorian state based strategies

• Federal strategies


Where to next?

• Low literature information sheets

• Discrimination law booklet – What are my rights?

• Visa rights campaign

– Resources

– Workshop

• Building resilience strategy

– Informed by focus group

WANT TO GET INVOLVED?

Please register with our lovely staff at the registration table!!!

Panel DiscussionQuestions?

Frank CarlusHepatitis Victoria President

Thank you for attending

WANT TO GET INVOLVED? Please register with our lovely staff at the registration table!!!

For any further information please visitwww.hepvic.org.au

hepatitis victoria stigma and discrimination forum · hepatitis victoria stigma and discrimination...

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