Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: BKY v The University of Newcastle [2014] NSWCATAD 39
• Hearing dates: 16-18 October & 31 October 2013
• Decision date: 28 March 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: J Conley, Senior member; D Kelleghan, General member; J Schneeweiss , General member

Decision

The complaint is substantiated. The Dean of Medicine Joint Medical Program for the respondent is directed to exercise his discretion to extend the time for the applicant to complete her medical degree by 18 months.

• Catchwords: Discrimination on the grounds of disability; Education
• Legislation Cited: Anti-Discrimination Act 1977; Civil and Administrative Tribunal Act 2013; Administrative Decisions Tribunal Act 1997
• Cases Cited: Qantas Airways v Gama [2008] FCAFC 69; Burns v Laws (EOD) [2008] NSWADTAP 32; Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27; Commissioner of Corrective Services v Aldridge [2000] NSWADTAP5; Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92; Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009); Dutt v Central Coast Area Health Service (2002) NSWADT 133; Edwards v Bourke Bowling Club Limited [2000] NSWADT 31; Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
• Category: Principal judgment
• Parties: BKY (Applicant); University of Newcastle (Respondent)
• Representation: Counsel; Natalie Obrart (Applicant); Patrick Griffin (Respondent); Keith Hurst & Associates (Applicant); Hicksons Lawyers (Respondent)
• File Number(s): 131018
• Publication restriction: S64 of the Civil and Administrative Review Act 2013 applies

reasons for decision

Background

1 In 2004 the applicant (BKY) commenced a course for the study of a Bachelor of Medicine (the medical degree) at the University of Newcastle (the respondent) in 2004. The medical degree is a 5 year full time course. The respondent has a requirement that the medical degree be completed within 8 years. If the degree is not completed within this time an extension of time must be sought to be allowed to complete the degree. By January 2012 the applicant had not yet completed her medical degree. She was advised by the respondent that she would need to seek an extension of time to complete the degree. she subsequently sought an extension of time which was declined.

2 The applicant claims that the University of Newcastle discriminated against her on the grounds of her disability. She claims that for the period of her enrolment with the respondent she had been diagnosed with the psychiatric conditions Bipolar II Disorder, Borderline Personality Disorder and severe psychosocial stressors and that she had symptoms of these conditions present during the course of her study. She claims that she has a disability within the meaning of the Anti-discrimination Act 1977 and that the respondent either directly or indirectly discriminated against her on the grounds of her disability. It is alleged that the respondent is vicariously liable for the acts of it's employees.

3 The applicant lodged a complaint with the Anti-Discrimination Board (the ADB). As the complaint was unable to be resolved it was referred to the former Administrative Decisions Tribunal (the Tribunal) for determination.

The Procedure

4 The matter came before the Tribunal for hearing for hearing over three days on 16 to 18 October 2013. On the third day of the hearing the respondent indicated that it had become apparent after hearing oral evidence that it had not fully complied with a summons for the production of documents. The matter was adjourned to enable this issue to be dealt with. The hearing was resumed on 31 October 2013 and was able to be concluded on that date.

5 Affidavits of evidence were relied upon by the applicant and the respondent, which were adopted and admitted into evidence. Oral evidence was given by the applicant's and respondent's witnesses and documentary evidence also relied upon. At the conclusion of the hearing the parties sought to file written submissions. Leave was granted for the filing of submissions with a time-table set.

6 The orders sought by the applicant specifically related to directing the respondent to allow her to continue studying her medical degree. She was not seeking any orders for payment of compensation. The parties were legally represented with counsel appearing for both parties.

7 After the conclusion of the evidence the applicant filed her submissions. The submissions included the statement, "The applicant has additionally given instructions to apply for compensation at the discretion of the Tribunal and the applicant makes the application for such compensation as the Tribunal considers appropriate in the case".

8 The respondent wrote to the Tribunal indicating that the applicant was attempting to make a claim in respect of a matter not before the Tribunal and that no evidence had been led on this issue. They indicated after discussions between the parties they had not been able to resolve this issue by way of agreement. The respondent claimed that it was not in a position to file submissions in relation to a purported amendment of a claim after the hearing had concluded. The respondent sought to have the matter relisted for directions. The parties were advised that the matter was to be re-listed, however prior to the matter coming back before the Tribunal the applicant indicated to the Tribunal that she was not pressing the submissions in relation to the purported amendment of the claim. Final written submissions were then submitted by 5 February 2014.

9 This matter was initially commenced in the former Administrative Decisions Tribunal in 2013. The hearing was concluded on 31 October 2013 with final submissions filed in February 2014. The matter was determined in 2014.

10 On 1 January 2014, the Administrative Decisions Tribunal was abolished and the jurisdiction to determine complaints under the Anti-Discrimination Act 1977 was assigned to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal, Civil and Administrative Tribunal Act 2013, Schedule 3, cl 3(1). In accordance with Cl 6 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, this application is a "part heard" proceeding.

11 At the commencement of the Tribunal Hearing the applicant applied for a suppression order pursuant to section 75 of the Administrative Decisions Tribunal Act 1997 (the ADT Act). Given the sensitive nature of the Applicant's disability in relation to this application and her future career prospects the Tribunal was satisfied that an order should be made pursuant to section 75(2) of the ADT Act that:

1)The disclosure of the name, address, picture or any other material that identifies or may lead to the identification of the Applicant is prohibited;

2)The doing of any other thing that identifies or may lead to the identification of the Applicant is prohibited; and

3)The publication of evidence given before the Tribunal or of matters contained in documents lodged with the Tribunal or received in evidence before the Tribunal is prohibited.

12 This decision is subject to this Order and accordingly it has been written in a way that will not lead to the identification of the applicant. The applicant has generally been referred to as the applicant, but in the title and elsewhere in this decision the applicant is referred to as BKY.

The Applicant's Evidence

13 The applicant's evidence was that she enrolled in a course for the study of a Bachelor of Medicine (the medical degree) at the University of Newcastle (the respondent) in 2004. The course is a five year degree, which must be completed within 8 years unless an extension of time is granted. her evidence was that the application procedure involved an admissions test, a written exam and an interview with a two person panel and the submission of grades from a Bachelor degree. The medical degree was a five year course. She was accepted into the course and commenced Semester 1 in about February 2004. She was advised in January 2012 that she would need to seek an extension of time to complete her medical degree. In January 2012 a decision was made by the respondent to decline to grant her an extension of time to complete her medical degree.

14 The applicant claims that she has had a disability throughout her enrolment in the medical degree with the respondent. She claims she was diagnosed and receiving treatment for the psychiatric conditions Bipolar II Disorder, Borderline Personality Disorder and severe psychosocial stressors during the course of her degree.

15 It was the applicant's evidence that she had previously completed a Bachelor of Nursing (the nursing degree) prior to enrolling in the medical degree. She enrolled in the nursing degree in 1998 and graduated from the University of Technology Sydney with a Bachelor of Nursing in 2001. Her evidence is that throughout the period of the nursing degree she was seeing Dr Elizabeth O'Brien Psychiatrist for her psychiatric conditions on a weekly basis.

16 Her evidence was that between 2001 and 2003 she worked full-time as a registered nurse at Westmead Hospital and then the Royal North Shore Hospital. She continued to see Dr O'Brien throughout this time. In 2002 Dr O'Brien recommended treatment in the form of psychodynamic therapy. This treatment involved the applicant seeing Caroline Andrew a Psychologist on a twice weekly basis, in addition to seeing Dr O'Brien. The applicant's evidence is that she commenced seeing Ms Andrew in 2002 and has seen her on a twice weekly basis since that time.

17 The applicant commenced semester one of the medical degree in 2004. She successfully completed semester one. The applicant's evidence is that she withdrew from Semester two of the first year. In the second half of 2004 she began working part-time at John Hunter Hospital as a part-time registered nurse. She worked full time in Intensive Care at John Hunter Hospital as a Registered Nurse in the first semester of 2005. The course for semester two of first year was not available in the first semester so the earliest it could be completed was 2005, as it was not undertaken in 2004. Her evidence is that she continued to work as a Registered Nurse throughout the period of her enrolment in the medical degree.

18 Semester two of her first year was completed in semester two of 2005 in the second year of her enrolment. Her evidence is that she suffered constant panic attacks in 2006. She claimed that she failed semester one for reasons mainly including non-attendance at problem based learning tutorials (PBLs) which she found difficult to attend because of anxiety.

19 In 2007 the first and second semester of her second year were completed successfully while working part time as a Registered Nurse in the Intensive Care unit at John Hunter Hospital.

20 She claimed that between February and June 2008 she completed semester one of third year of the medical degree. In the second semester of 2008 the applicant claims that she continued to work part time. She continued to see Ms Andrews twice weekly and was exhausted from the demands of study and work and was experiencing increasing anxiety. Her evidence is that she completed the semester up until the day of the exams but did not sit the final exams. She applied for special consideration to sit the exams which was denied. She then appealed the decision which was ultimately declined. She was therefore required to re-enrol in the third year subject MEDI3017.

21 The applicant reported her condition to the NSW Medical Board in the second semester of 2008. In 2009 she was advised that Board appointed psychiatrist, Dr Samuel, had been appointed to assess her. Dr Samuel forwarded an assessment to the NSW Medical Board. The applicant moved to Sydney in March 2009. She withdrew from the second semester of third year in June 2009. She worked as a Registered Nurse at Prince of Wales Hospital until January 2010.

22 On recommendation of her psychiatrist, the applicant applied to the University for leave of absence from the medical degree. She claims that she had a conversation about this with Ms Tracey Bristow the Program Officer for the Bachelor of Medicine degree on 25 January 2010. She claims she was advised by Ms Bristow that until she had obtained leave she would be required to attend the degree, or otherwise risked failing. She therefore moved back to Newcastle and commenced the course.

23 The applicant claims that when she made an enquiry of Ms Bristow about her leave application she was told that, "if it is approved you won't be able to graduate until June 2013". She claims that Ms Bristow further stated "don't worry we have never excluded anyone before". On 25 Marcy 2010 the applicant received an email advising the leave of absence had been approved. In the email notification from Ms Bristow, she was advised that the Pro Vice-Chancellor had requested that she specifically be notified that prior to recommencing in 2011 she was required to meet with the Program Convenor and/or Head of School to discuss enrolment and progression. The applicant relies upon the further notation that,

the bachelor of Medicine (Policy 000021) Clause 8 states that "Except with the permission of the Pro Vice-Chancellor, a candidate shall complete the requirements for the Bachelor of Medicine within 8 years of study". As 2011 will be your 8th year of enrolment in the Bachelor of Medicine you will need to exceed this limit in order to complete the program. While approving your leave for 2010 and re-enrolment in 2011, the PVC has stated that it would be expected that you would complete the remaining 200 units of the program in minimum time (that is, 2.5 years).

24 The applicant claims that she was required to commence the semester until her leave request was approved, or risk failing. She had therefore already moved back to Newcastle from Sydney and commenced the course (semester two of third year) and so elected not take the approved leave. Her evidence was that she continued to work part time at John Hunter Hospital as a Registered Nurse in the Intensive Care unit. The applicant claims that she was led to believe by Ms Bristow that if she took leave the earliest she could complete her degree would be June 2013. She claims that she was therefore led to believe that the University was not concerned if it took her until June 2013 to complete her medical degree.

25 The applicant's evidence is that she completed semester two of third year by July 2010. In July 2010 she moved back to Sydney. Her evidence was that the fourth year of the medical degree is a practical year, which is able to be completed at "various" hospitals. She elected to undertake her fourth year at the Gosford Hospital and to live in Sydney, commuting from Sydney. She commenced semester one in July 2010 and subsequently withdrew. Her reasons were that she was overwhelmed by the daily commute to Gosford from Sydney, while also working as a Registered nurse and seeing Ms Andrew twice weekly.

26 It was the applicant's evidence that semester one of fourth year was competed in June 2011 and she commenced semester two of fourth year in July 2011. She was still living in Sydney and on the final day of exams she had to drive from Sydney to Newcastle to sit the exam. Her evidence was that she was experiencing a panic attack and could not complete the drive to Newcastle. She went home and then put in an application for special consideration. The application was denied. She appealed that decision. She was advised by Professor Symonds that she could commence semester one of fifth year pending the determination of the appeal, however on 20 January 2012 she was notified that the appeal was refused.

27 On 23 January she was notified by email from Maryanne Cartwright the Assistant Academic Registrar Faculty of Health Manager, that she had exceeded the eight years for completion of the medical degree and would need to apply for an extension. The applicant claims that she had not received any prior notice that the respondent would not allow her to continue her studies beyond the eight year period. She claims that she considered that the respondent had no difficulties with her taking up until June 2013, because if she had taken the year of approved leave, she could not finish before this date.

28 On 24 January 2012 she applied to the Dean, Professor Symonds for an extension of time to complete the medical degree. She claims that he responded by seeking information about how long was required to finish the degree and indicated that he would want to talk to Dr O'Brien. On 2 March 2012 the applicant received notification that the extension of time was not granted. The applicant subsequently wrote to Professor Symonds on 7 March 2012. On 14 March she received a letter confirming the decision not to extend time. Professor Symonds wrote,

"I am not satisfied that there is an expectation that you will complete your requirement for the award within a reasonable period.

The reason for this assessment is not only that your best outcome for completion is June 2013, but that your progress has trended downwards over the last three years. It has become apparent that this trend is negatively influenced by your performance in clinical settings, which is an essential component in the fourth and fifth year of training.

I am therefore given no cause for confidence by your current progress, nor your best possible outcome for completion, nor the negative trend in your progress.

In weighing this matter, I must give consideration not only to your prospects for completion, but also the interests of academic integrity and professional standards. The eight year requirement is a significant milestone in balancing these interests.

29 He then went on to note that he would reserve his decision and offered the applicant the further opportunity to make one further submission prior to him making his decision. The applicant responded in writing with a further submission. She noted that she had never failed a course twice during her medical degree and therefore never had to "show cause" why she should be "excluded" from completing the degree. She had also never been suspended or disciplined during the course. She also noted that a failure recorded in 2009 was due to a failure to formally withdraw from a course within the deadline. She noted that while there was notification of an intention to withdraw on 31 March 2009, it was not deemed to be a formal withdrawal within the requisite deadline.

30 The applicant claims that she has Bipolar II Disorder, Borderline Personality Disorder and suffers from severe psychosocial stressors. She relied upon evidence from her treating psychiatrist, Dr Elizabeth O'Brien who in addition to her Affidavit and oral evidence provided written reports in evidence before the Tribunal.

31 It was Dr O'Brien's evidence that she first began treating the applicant in October 1997. She diagnosed her condition using the Diagnostic and Statistical Manual of Mental Disorders Fourth Edition (DSM IV) which uses a bio-psycho-social model of classification of disease on five axes. The applicant's primary diagnosis was Bipolar II Disorder (Axis 1) and also a Borderline Personality Disorder (Axis 2) and severe psychosocial stressors (Axis 4). Her evidence was that under the new updated DSM V the applicant's condition continues.

32 Dr O'Brien wrote that people with borderline personality disorder often have enduring and pervasive maladaptive patterns of coping in everyday living, often over-reacting intensely to psycho-social stress with unstable fluctuating moods of anger, distress or anxiety. In respect of the applicant specifically, her evidence was that the disorder manifested itself in anxiety, especially performance anxiety approaching examinations and at such times she would respond with avoidance behaviour. At such times she could not attend an examination at the set date and time, but would be able to complete the examination at a later postponed date. As part of her borderline personality disorder the applicant has a poor sense of self-worth and compensated by trying to achieve academically. She reported that sometimes the intensity of the fear of failure would be too great and she would experience a paralysis of her ability to study.

33 Dr O'Brien's evidence was that she supported the applicant seeking a period of leave of absence from her medical degree in 2010 so she could concentrate on her psychosocial problems and psychotherapy treatment without the demands of a medical course. She wrote that her overall level of function had improved such that in 2010, her antidepressant dosage was halved and anti-psychotic medication reduced from daily, to as needed.

34 Dr O'Brien reported that in September 2011 the applicant experienced a recrudescence of symptoms after 9 months when she did not require consultation with her. She reported that it was her opinion that by January 2012 the applicant was stable again in terms of her medical condition.

35 The applicant informed Dr O'Brien of the decision of the Dean not to extend time, which precluded her from completing her medical degree. Dr O'Brien said the applicant then gave her permission to speak to Professor Symonds. She had a telephone conversation with Professor Symonds and subsequently wrote to him expanding and clarifying her reasoning.

36 Dr O'Brien wrote that in forming her opinions regarding the applicant's ability to complete her medical degree, she drew on her professional experience. She has clinical experience as a psychiatrist. She had also been directly involved with matters before the NSW Medical Board now known as the NSW Medical Council. She wrote that in this capacity she had experience in the role of both a treating psychiatrist of medical practitioners before the Board and also alternatively as the Board appointed psychiatrist monitoring the health of impaired doctors under the Impaired Registrants Programme. She has also participated in emergency hearings to determine if a doctor should be immediately barred from practice pending further assessment. She has sat on the Medical Tribunal when considering matters such as the fitness to practice of doctors who are facing complaints. She has also assessed doctors applying for re-instatement after deregistration for professional misconduct. She writes that she has appeared as a witness for the Health Care Complaints Commission.

37 She wrote that she has been the treating psychiatrist of the applicant for many years. Dr O'Brien wrote of the applicant's intense anxiety and avoidance response which led to non-attendance and postponement of examinations. When this occurred she would provide medical certificates explaining that her medical condition had caused this behaviour. Her evidence was that in 2006 the applicant had an episode of illness cased by Axis 1 Bipolar Disorder II, the last episode of that illness to date. Dr O'Brien explained that the applicant has an intense fear of failure and the shame of this at times paralyses her ability to apply herself consistently to her studies. Her anxiety levels affect her concentration at times to the degree that she would have difficulty focusing on the content of her studies.

38 Dr O'Brien expressed the opinion that as of January 2012 the applicant was capable of completing her medical degree. She writes that the challenges faced by the applicant during her medical degree were also faced by her during the final stages of her nursing degree. The applicant overcame the challenges in that context. She wrote that the applicant was facing being "barred" from completing her nursing degree because she was not participating in the course and not completing components for similar reasons.

39 Dr O'Brien gave evidence that she made representations to the nursing department on the applicant's behalf. She suggested that putting a clear time limit and making her aware of this fact would be useful to her. She said that one of the things about the anxiety that people with this disorder experience, is that if there's any way out they tend to take it. She said this is an avoidance of responsibility and it sets them back. She said alternatively if you provide a limit and indicate that they have no choice but to comply with the limit or lose everything they have undertaken to date, it has quite a galvanising effect. She went on to state that it's one of the main strategies of dealing with people with borderline personality disorder, to provide clear structures and consequences. She expressed the opinion that with the treatment she was receiving the applicant would be able to similarly complete her medical degree in an 18 month period.

40 Dr O'Brien's evidence was that when she spoke to Professor Symonds he asked about what extra supports or treatments might be offered if the Applicant continued her studies. She indicated that she would arrange to see the applicant more regularly and routinely throughout the remainder of her course in addition to the continued psychotherapy. This would enable her to more closely review and monitor any medications that may be required to better assist her to remain well.

41 Dr O'Brien also stated that she advised Professor Symonds that the applicant had a similar crisis during her nursing degree such that she risked not being able to finish. When faced with that consequence the applicant had completed the degree and worked competently in that profession thereafter. She said that she used the earlier history to illustrate a pattern in her behaviour and indicated that she did not intend to imply that working as a nurse is equivalent to working as a doctor. Her intention was to communicate that the applicant had demonstrated that she was capable of functioning under a deadline pressure when she had no alternative but to apply herself. She then conveyed this in her letter to Professor Symonds.

42 Dr O'Brien writes that she was well aware that BKY's medical condition had affected her attendance at her course at times, as well as worsening anxiety around "in vivo" assessments and examinations. After completion of her nursing degree she had been able to work in complex and demanding situations such as the intensive care unit without her symptoms affecting her performance. She wrote that she considered that the applicant's symptoms of her condition were unlikely to emerge and disrupt her effective functioning in the role of medical practitioner once she had completed her degree. She also wrote that the Medical Council is the body with the expertise to assess her requisite fitness to practice.

43 Dr O'Brien specifically addressed the issue of Professor Symond's concerns about currency of knowledge due to the prolongation of the completion of her degree. She referred to her own experience on the Medical Board/Medical Council. Her evidence was that this organisation routinely deals with medical practitioners who have been deregistered and therefore have not been able to practice medicine for several months to several years. In these instances there is an assessment of the need for remediation in relation to a "lag" of knowledge. She also noted the requirement for a first year resident to work in a supervised setting.

44 Dr O'Brien wrote that in 2010 she recommended to the applicant that she take leave from her studies for a 6 month period in 2011 in order to work more intensely on psychotherapy. She noted that the applicant had applied for leave, but by the time the university had agreed, the enrolment deadline had passed and she was already studying. Dr O'Brien wrote that the applicant had advised her that she had been told by the University that if she had taken leave the University would have expected that she would complete her course by mid 2013. Dr O'Brien also wrote that if the University had explained the risk of being excluded to the applicant and to her as the treating doctor before the decision was made, she could have incorporated that in into the management strategy. She identified her reasoning for this.

45 The applicant claimed that she was treated less favourably than other students who did not have a disability. The applicant did not nominate a single specific comparator but instead relied upon evidence in relation to three students who had an extension of time granted while she was enrolled.

46 Specific details of the students were referred to during the hearing including their names, circumstances, correspondence relating to their extension of time request and their academic transcripts. So as to maintain the privacy of those students for the purpose of these reasons the students will be referred to as students one, two and three. Their circumstances are sufficiently different as to render them clearly distinguishable from each other.

47 Student one was a male student. He reached the 8 year time limit in his medical degree and sought a three year extension of time. He was granted a three year extension, however ultimately he did not take up the extension. He elected to exit his medical degree as he was eligible to take out a Bachelor of Health degree instead of completing his medical degree.

48 Student one commenced at the beginning of 2002. During the course of his medical degree in 2009, student one had been required to "show cause" why he should not be excluded from the medical degree (the show cause procedure). This was because he had failed the same course in two successive semesters. He received a mandatory year of suspension from the course. The granting of the three year extension meant that he was required to finish by the end of 2012. He would therefore have taken an overall time of 11 years to complete his medical degree.

49 The second student was a female student. There was no evidence she had a disability. She was married and her husband was frequently over-seas in the armed forces. She had five children and had given birth to four children during the course of her medical degree. She reached the 8 year time limit in her medical degree and sought an extension of time. She was granted an 18 month extension.

50 The third student was a male student. He commenced in 2005. The academic transcript for student three shows that he failed the subjects Professional Practice 3 and Medical Science 3 in semester two in 2007. He then repeated both subjects in 2008 and again failed both subjects. He had therefore been required to participate in a "show cause" procedure to establish why he should not be excluded from the degree because of twice failing the same course subject. He undertook the subjects he had failed twice previously for the third time in 2009 and passed. He failed further subjects in semesters one and two of 2010. He sought an extension of time in December 2012. His correspondence in relation to the show cause procedure indicates that his father was supporting him and his father was experiencing serious health issues. He also had developed a poor study pattern and technique. There was no evidence he had a disability.

The Respondent's evidence

51 Professor Ian Symonds is the Dean of Medicine, the Joint Medical Program for the University of Newcastle and the University of New England. He is also the Head of the Medical School and Public Health at the University of Newcastle. He commenced in this position on 1 January 2011. He gave evidence that the position has overall responsibility for the academic supervision of students enrolled in the Joint Medical Program including applications for student transfers, leave of absence and applications to extend time in the program.

52 His evidence was that the requirements for the course of Bachelor of Medicine are outlined in the respondent's policy 000021 (the policy) Bachelor of Medicine Schedule. Clause 8 of the policy states that the time for completion of the course is 8 years except with the approval of the Pro Vice-Chancellor. From 8 December 2008 the Bachelor of Medicine was administered by the Joint Medical Program (JMP). The respondent's policy 000874 Bachelor of Medicine Joint Medical Program applies to the award of the Bachelor of Medicine. Existing students enrolled in 2008 became subject to the requirements of the respondent's policy as outlined in 000874 Bachelor of Medicine JMP Schedule. Clause 25 provides that the maximum time for completion of the degree is eight years. Clause 25.2 provides that the period includes leave of absence, suspension or exclusion. Clause 25.3 provides that on application, the Dean may grant an extension of time to complete the program, provided that the period of the extension is specified and the student has an expectation of completing the requirement for the award within a reasonable period.

53 In relation to the issue of extending time for the applicant to complete the medical degree, Professor Symonds' evidence is that he considered all factors put to him by the applicant. He formed a preliminary view that the applicant should not be granted an extension of time to complete her medical degree and advised her in writing. She was however then granted an opportunity to provide further submissions. During this time he undertook a review of her student file and her submissions. He considered her academic record. He noted that she first enrolled in the degree in 2004. During that time she had in an eight year period completed three and a half years of a five year course of study. She had passed thirteen courses after repeating eight of the thirteen courses. She had failed four courses and was awarded a withdrawal without penalty (WWP) for five courses. He also referred to a "risk of failure" for more than 50% of her mandatory course on six occasions. On three occasions previous fail grades were appealed to be allowed as WWP grades. She had not been required to show cause.

54 Professor Symonds considered that the applicant would need to complete the outstanding courses and the earliest time she would be eligible to graduate would be July 2013, nine and a half years after she enrolled. He also considered that Dr O'Brien had indicated that a trigger to exacerbation of the applicant's symptoms were impending examinations, among other causes. He was particularly concerned about her anxiety in relation to performance in clinical rotations. He said he did not know if the anxiety related to past experiences. When specifically asked if it was because the anxiety was as a result of the fact that she was in a "test or exam" situation when required to diagnose patients, he said he did not know. He said that it was his opinion that she would not be able to complete the program if an extension were granted. She had clearly displayed an inability to cope with examinations which had affected her progress during the course.

55 He identified all the matters he considered. Those matters included the fail results stemming from the significant issues relating to clinical settings in paediatrics and surgery which induced extreme anxiety. He specifically considered Dr O'Brien's advice about the intensification of anxiety when exams approached. He also considered that further study would be detrimental to her health. He had concerns about her ability to function as a doctor. He considered that there was a real risk she could not safely practise even if she was ultimately capable of completing the medical degree. He also considered the fact of the policy requirement to complete the course in eight years to ensure graduating practitioners had a currency of knowledge. He considered that there was a real risk that her overall abilities as a medical practitioner would be detrimentally affected by her "lag" in clinical knowledge because of delays. He considered the evidence of Dr O'Brien, but did not consider it to be of sufficient weight compared to other evidence to grant an extension.

56 Professor Symonds conceded that from 2004 the University (the respondent) was aware the applicant suffered from Psychological conditions. He conceded that he was aware that those conditions "specifically affected ... ability to sit exams by virtue of an extreme anxiety that was created around exams".

57 Professor Symonds said that the applicant is eligible to take out a degree in the form of a Bachelor of Health. Professor Symonds gave evidence that with this degree it was possible to proceed to the Honours course, post graduate research, Health Management or graduate entry into the medical program at another University.

58 Professor Symonds gave evidence about the factors relevant to granting an extension of time to students one, two and three. In relation to student one, Professor Symonds said that he was not involved in the decision as it was prior to his appointment, but he was aware of the circumstances. Student one was diagnosed with a depressive illness in 2009, at the time of the show cause procedure. The evidence of Professor Symonds was that it was his understanding that the student had only recently been diagnosed with a depressive illness around the time of his show cause procedure. As he was recently diagnosed with the illness a decision was taken to suspend him from the course instead of precluding him from proceeding.

59 He said that once the decision was taken to suspend the student, in line with the University policy, suspended students are allowed back into the course. Therefore he was granted an extension of time.

60 In respect of student two, Professor Symonds said that student two was regarded as a good student academically who had only failed one subject during the course of her enrolment prior to seeking an extension. She had been granted 18 months leave of absence. She had 12 months when she could not enrol because of the order and cycle of the subjects she needed to complete. The subjects she needed to study next were not offered at that time as some subjects are only offered once per year. She also had domestic pressures which meant that she had withdrawn from courses early on.

61 In respect of student three Professor Symonds explained the factors he took into account in relation to the decision to extend time. He said that the student did not have a good study technique, he also had poor sleeping patterns which were not conducive to study. He had difficulty adjusting to tertiary education and was also living away from home. Professor Symonds said that it was his understanding that student three had previously been living with his parents and he had found relocation to Newcastle very difficult. Student three also had concerns about his father's health. The student was financially supported by his parents. He was given an extension to complete the course within the minimum time of 12 months.

62 When asked about the issue of currency of knowledge, Professor Symonds said that by the granting of the extension, it would take 9 years for student three to complete his medical degree. He had made the decision on the basis of the student having good prospects of completing the course within the remaining time period. He said that after talking to student three he formed the opinion that the student had initially struggled to adjust. Facing the show cause procedure in 2009 had been a "wake up call". He said that between 2005 to 2008 he failed 6 courses. He had only had a further two failures between 2009 and 2012. He was therefore on an "improving trajectory". There was therefore a likelihood of completing within the12 month period.

63 The respondent relied upon evidence from Ms Melissa Kerr the Year Four Manager of the Joint Medical Program. She gave evidence about her interactions in respect of the applicant's enrolment in relation to her enrolment and progression in year four of the medical degree.

64 The respondent also relied upon the evidence of Ms Tracey Bristow the Program Coordinator for the Bachelor of Medicine Joint Medical Progam and was responsible for co-ordinating the academic and administrative processes of the Joint Medical Program. Ms Tracey Bristow gave evidence that she searched the records and found any students who had applied for an extension which had been approved after 2000.

65 She gave evidence that she wrote to the applicant on 17 February 2010 advising that her request for leave for 12 months in 2010 had been approved. She included a reference to the 8 year time limit and indicated that if the applicant took leave she would exceed the 8 year limit. She also noted that while the leave was approved the "PVC" has stated that it would be expected that she would complete the remaining units of the program in the minimum time of 2.5 years. She denied the applicant's allegations about representations made by her that she would not be precluded from completing the course.

66 Ms Louise Morgan the Year Three Manager of the Joint Medical Program also gave evidence in relation to her interactions with the applicant. In response to allegations made by the applicant about her presence at a meeting she denied any formal meeting with herself and Tracey Bristow. She also did not recall any discussions with the applicant about 25 January 2010.

Relevant Legislation

67 Section 49B of the Act provides:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have a disability or who does not have a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

Sections 4(1) and 49A of the Act define disability as follows:

4(1)

"disability" means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

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

Disability includes past, future and presumed disability

68 49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

Section 49L(2) of the Act provides :

It unlawful for an educational authority to discriminate against a student on the ground of disability:

(a) by denying him or her access, or limiting his or her access, to any benefit provided by the educational authority,

(b) by expelling him or her, or

(c) by subjecting him or her to any other detriment.

...

"educational authority" means a person or body administering a school, college, university or other institution at which education or training is provided.

Section 53 of the Act provides:

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

Section 4A of the Act provides :

Act done because of unlawful discrimination and for other reasons

If:

(a)an act is done for 2 or more reasons, and

(b)one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

THE DECISION

The Claim

69 It is the applicant's primary submission that the respondent directly discriminated against her by treating her less favourably than a person who did not have a disability.

70 In the alternate, it is submitted that the respondent indirectly discriminated against her by requiring her to comply with a requirement or condition which a substantially higher proportion of persons who do not have her disability comply or are able to comply. She claims that the requirement to complete her medical degree within 8 years is not reasonable having regard to the circumstances of the case.

Did the applicant have a disability at the relevant time

71 The evidence from Dr O'Brien is that she is the applicant's treating psychiatrist. She gave evidence that she had been treating the applicant since 1997. Her evidence is that the applicant received treatment for a psychiatric condition which was recognised in DSM IV and the updated DSM V throughout the period of her studies in the medical degree with the respondent.

72 The Tribunal finds that the applicant has a diagnosis of Bipolar II Disorder, Borderline Personality Disorder and severe psychosocial stressors. We further find the symptoms of the applicant's psychiatric conditions include extreme anxiety, particularly in relation to assessments and exams and results in avoidance behaviours around exams, assessments and study. The Tribunal finds that the applicant was receiving treatment for this condition throughout the course of the degree with the respondent. The evidence supports a finding that the psychiatric conditions affected the applicant's thought processes, emotions or judgment and has resulted in disturbed behaviour. This falls within the scope of sections 4(1)(e) and 49A (e) of the Act and therefore constitutes a disability within the meaning of the Act.

Was the applicant denied a benefit or did she suffer any detriment

73 The conduct the subject of this complaint is that the respondent discriminated against the applicant on the grounds of her disability either directly or indirectly by not allowing her to re-enrol to complete her medical degree.

74 The Tribunal finds that the respondent is an educational authority within the meaning of section 49L of the Act. The Tribunal further finds that the applicant was either denied access to a benefit, or alternatively suffered a detriment when she was precluded from re-enrolling with the respondent in order to continue her studies to attempt the completion of her medical degree.

The claim of Direct Discrimination

75 The applicant claims that the decision of the respondent to refuse to grant her an extension of time to complete her degree amounts to direct discrimination on the grounds of disability.

76 Section 49B(1)(a) of the Act provides that a person discriminates against another person on the ground of disability if, on the ground of the aggrieved person's disability the person treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the person treats a person who does not have a disability.

77 There are two elements which must be proven. The first element is that there was less favourable or "differential treatment" compared to a person who does not have a disability, in circumstances that are the same or not materially different. This is a comparison issue. The second element is that the differential treatment was on the ground of the disability. This is known as the causation issue.

78 In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP5 the Appeal Panel of the Administrative Decisions Tribunal referred to the decision of Waters v Public Transport Corporation [1991] HCA 49 (1991) 173 CLR 349 where Dawson and Toohey JJ stated, "Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race)." In relation to the issue of differential treatment the Appeal Panel went on to state, "...differential treatment should be considered before causation because if there is no relevant differential treatment it is unnecessary to consider the issue of causation."

79 In Purvis v New South Wales [2003] HCA 62 (2003) 217 CLR 92 at 231 (Purvis) the High Court said that the two elements of direct discrimination, differential treatment and causation must be treated separately and sequentially. In Hollows v Macquarie University [2009] NSWADT 23 (6 February 2009) (Hollows) the Tribunal stated, "That approach is logical when there is an actual comparator because the differential treatment question can be answered objectively based on the evidence of how the actual comparator was treated."

80 The High Court was dealing with similar provisions in the Commonwealth Disability Discrimination Act 1992 in the matter of Purvis. It was noted that, "... the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it 'because of', 'by reason of', that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression 'because of'." In Hollows the Tribunal noted that the Anti-Discrimination Act (NSW) uses the words "on the ground of", rather than the words "because of" that are used in the commonwealth legislation, but that no different meaning is intended.

81 Therefore, in order for the applicant to establish that the respondent discriminated against her on the grounds of her disability, by declining to grant her an extension of time, the applicant must establish both differential treatment and causation in relation to the respondent's conduct.

Was the applicant treated less favourably

82 The first issue to consider, is whether the applicant was treated less favourably than a person who did not have a disability would have been treated in circumstances that are the same, or not materially different.

83 In respect of identifying the relevant circumstances guidance is found in the decision of Purvis where the High Court was considering the Federal equivalent to section 49B. The Court stated that "The circumstances referred to in s 5(1) are all of the objective features which surround the actual or intended treatment of the disabled person..." The Court went on to state that, "It would be artificial to exclude (and these is no basis in the text of the provision for excluding) from consideration some of these circumstances because they are identified as being connected with the person's disability. ... All of the circumstances of the impugned conduct can be identified and that is what s 5(1) requires. Once the circumstances of the treatment or intended treatment have been identified, a comparison must be made with the treatment that would have been given to a person without the disability in circumstances that were the same or not materially different.

84 In summary in relation to the federal equivalent to section 49B(1)(a) the comparison "requires comparison with a person without the disability, in the same position in all material respects as the aggrieved person". It was found that the relevant circumstances include all the effects and consequences of the disability that are manifested to the alleged discriminator.

85 In relation to the comparison issue, the Tribunal considered whether there was a real or hypothetical comparator. The applicant identified three students who had sought and were granted an extension of time to complete their medical degree during the time she was enrolled in the medical degree. Beyond identifying these three students the applicant did not provide any submissions as to the issue of a specific comparator. The respondent also made no specific submissions on the issue of an appropriate comparator.

86 The evidence before the Tribunal is that student one sought and was granted a three year extension. Student two sought and was granted an 18 month extension. Student three sought and was granted a one year extension. The applicant sought and was denied an 18 month extension. The duration of the extension required to complete the medical degree in the minimum time is therefore within a similar range for students two and three and much less than that sought by student one.

87 The Tribunal then considered whether any of these students were an appropriate comparator. The Tribunal finds that student one is not an appropriate comparator. This is because we find his circumstances are materially different. He had a repeated failure of subjects and was consequently required to participate in a show cause procedure. It is the evidence of Professor Symonds, supported by the student's records, that he had a recently diagnosed depressive disorder at the time of the show cause procedure. The evidence of Professor Symonds suggests that because of a range of factors including the recent diagnosis, the student was granted a suspension of his medical degree at the show cause procedure, rather than being excluded from his medical degree.

88 Professor Symonds told the Tribunal that he did not make this decision, as it occurred before his appointment, however he was aware of the circumstances. Relevantly he went on to tell the Tribunal that it is the University policy that suspended students are allowed back into the course after suspension. Therefore when student one was required to seek an extension of time to complete his degree, the University took a decision in line with the application of this policy and determined that it was bound to exercise the discretion in favour of student one. The decision at the show cause procedure to suspend student one, rather than exclude him meant that he was allowed back into the course. The timing of the resumption of his studies coincided with the need to seek an extension of time, therefore the process for the exercise of discretion appears to have became an automatic process. The Tribunal finds that student one is not an appropriate comparator because effectively the decision about the extension of time was made at the time of the show cause procedure. That procedure is a different process and we have no evidence as the relevant criteria for a show cause procedure. The Tribunal therefore found that student one was not an appropriate comparator.

89 The Tribunal also further notes that at the time of the show cause procedure, student one had a recent diagnosis of a depressive disorder. There was no evidence before the Tribunal as to whether he had a continuing depressive condition at the time the extension was in fact granted, or whether he had recovered from the condition.

90 The Tribunal finds that student two is also not an appropriate comparator. This is because the Tribunal had regard to the evidence from her file and has determined that student two's circumstances were materially different from that of the applicant. The evidence of Professor Symonds, consistent with her academic transcript shows she only failed one subject prior to seeking an extension of time and she was regarded as a good student academically . The evidence is that she has five children, four of whom were born during her medical degree. The delay in completing her medical degree was essentially due to circumstances surrounding the birth and care of her children. Her husband was in the armed services and was away for lengthy periods leaving her as the sole carer of the five children. The Tribunal finds that a student who performed well academically is not an appropriate comparator.

91 The Tribunal has had regard to the evidence of Professor Symonds and documents from the file of student three. Student three sought an extension of time to complete his degree and the minimum time which it would take to complete his degree was 12 months. The applicant sought an extension of time to complete her degree and the minimum time which it would take her was 18 months. While student three was seeking six months less time to complete his degree than the applicant, we do not find this to be a material difference. Student three had failed 8 subjects, including failing two subjects twice, prior to seeking and extension of time. It was the poor academic performance of student three which resulted in his delayed progress and need to seek an extension of time to complete his medical degree. On the available evidence the Tribunal finds that he does not have a disability.

92 The applicant has a disability and sought an extension of time to complete her medical degree because of poor academic performance. Student three does not have a disability and sought an extension of time due to poor academic performance. The Tribunal finds student three to be an appropriate comparator as the circumstances were the same or not materially different.

93 Student three sought and was granted a 12 month extension. The applicant sought and was denied an 18 month extension. The evidence before us is sufficient to support a finding that the applicant was treated less favourably than student three was treated in circumstances that were not materially different.

Was the differential treatment on the ground of the applicant's disability

94 Having found that the applicant received less favourable treatment, the Tribunal must then consider whether the differential treatment was on the ground of her disability. That is, was the applicant's disability a real, genuine reason for the treatment? In relation to causation she must establish that a real, genuine or true reason for any differential treatment was her disability. The applicant must establish that her disability, either alone or in combination with other reasons, was the true basis for the treatment.

95 In this matter there is no direct evidence of the discrimination occurring on the grounds of disability. The issue of what happens when there is no direct evidence of less favourable treatment has been discussed in decisions including Dutt v Central Coast Area Health Service (2002) NSWADT 133 (Dutt), Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 (Edwards) and Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262. Where there is no direct evidence of less favourable treatment, an applicant must rely upon inference.

96 In Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 the Tribunal referred to the authorities and the Tribunal noted that it is open to the Tribunal, having taken into account all the circumstances surrounding the respondent's treatment of the applicant, to make a finding of unlawful discrimination. However such a finding cannot be inferred where more probable and innocent explanations are available on the evidence.

97 In Dutt v Central Coast Area Health Service (2002) NSWADT 133 the Tribunal stated :

Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an enquiry or hearing: in The Liberal Promise at p182, Thornton says that "unless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit ..." It has been observed that it is unusual to find direct evidence of ... discrimination. Few employers would be prepared to admit such discrimination even to themselves...The outcome of the case will therefore usually depend on what inference it is proper to draw from the primary facts found by the Tribunal. (in Palmer C., Moon G., and Cox S. Discrimination at work: the law on sex, race and disability discrimination LAG, London 1997 at p34)

98 In respect of drawing inferences to prove less favourable treatment in Dutt the Panel stated that the authorities identify the following considerations :

a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from the primary facts;

an inference must be reasonably drawn on the basis of primary facts;

an inference can be drawn from a combination of facts, none of which viewed alone would support that inference;

a fact relied upon as the basis of an inference need not be proved to the requisite standard of proof;

it is not enough that the inference is a mere possibility: it must be one of "probable connection" ;

the inference must be a logical one, and not supposition;

an inference cannot be made where more probable and innocent explanations are available on the evidence.

99 In considering whether the applicant was treated less favourably on the ground of her disability, the Tribunal has had regard to Professor Symonds reasoning for his decision not to exercise his discretion to grant the applicant an extension of time to complete her medical degree.

100 It was the evidence of Professor Symonds that currency of knowledge was relevant to the exercise of his discretion. He expressed concern about the applicant's currency of knowledge if an extension were granted. He stated that there was a real risk that the applicant would have a "lag" in her clinical knowledge caused by delays completing the course.

101 In relation to this issue the Tribunal notes that the Bachelor of Medicine degree is a five year full time course. There is an 8 year maximum time limit to complete the degree. There is however the ability to seek an extension of time for completion of the degree. The issue of the exercise of the discretion therefore necessarily involves the less than optimal progress of a student who is the subject of such an application. There would be no need for consideration of an extension of time, if the student had progressed at the expected rate and completed the course within the 8 year time limit. Therefore in relation to currency of knowledge, this issue will be relevant to any student who makes such an application for an extension of time. The University Policy by conferring such a discretion implies that this issue is not of itself a bar to the exercise of the discretion.

102 The Tribunal finds that the issue of currency of knowledge would apply to both the applicant and to student three. The applicant was seeking six months longer than student three to complete her degree. The Tribunal did not accept that this is a material difference between the applicant and student three in relation to currency of knowledge.

103 Professor Symonds referred to the poor academic performance of the applicant during the course of her medical degree. Professor Symonds gave evidence that the applicant's academic performance was relevant to the exercise of his discretion. He stated that the applicant was "at risk" of failing on six occasions. Professor Symonds granted an extension of time to student three despite his poor academic performance. He had failed a total of 8 subjects prior to seeking an extension of time. Student three had failed the subjects Professional Practice 3 and Medical Science 3 in semester two in 2007 and then again in 2008. He was therefore required to participate in a "show cause" procedure. The applicant failed 4 subjects. This included subjects where she had not sat the exam and had failed in her appeal to be allowed special consideration to resit the exam. Her medical evidence supports a finding that she suffered extreme anxiety in relation to sitting exams resulting from her psychiatric condition. She had withdrawn from 5 subjects. She had never failed the same subject twice and had never been required to show cause why she should be excluded from the course. Having regard to the comparison with student three, the Tribunal does not accept that poor academic performance was a legitimate reason for the failure to exercise the discretion in the applicant's favour.

104 Professor Symonds identified that he considered the extenuating circumstances given by student three which had led to the difficulties in him not being able to complete his course in the requisite time. Those circumstances included poor study techniques, poor sleep, difficulties adjusting to living away from home. The student was financially supported by a parent who had developed health problems.

105 The evidence of the applicant is that she also had extenuating circumstances leading to the delayed completion of her medical degree. She has a psychiatric condition which causes extreme anxiety in relation to performance assessments. She had to work to financially support herself throughout the course of her studies. She advised Professor Symonds that she had maintained a responsible position as a Registered Nurse and most of the time worked in Intensive Care Units. She had also continued to receive treatment from a registered Psychologist in Sydney which required travel twice weekly to and from Newcastle for much of her degree She put these circumstances to Professor Symonds.

106 In giving his evidence Professor Symond's stressed that his primary consideration, upon which he placed a great deal of weight, was what he regarded as the applicant's inability to complete the course within a reasonable time. He considered that student three was on an "improving trajectory" and could complete the degree within a reasonable period of time.

107 Professor Symonds gave evidence that he considered that the applicant was on a "downward trajectory" and could not complete her degree within a reasonable time frame. The applicant relied upon the evidence of Dr O'Brien that as part of her psychiatric condition she would engage in avoidance behaviours unless she was set with strict limits. Faced with strict limits and the loss of what she had worked for, then she would respond positively.

108 In relation to this issue both Professor Symonds and Dr O'Brien gave evidence about a telephone conversation they had about this. Dr O'Brien wrote to Professor Symonds after the phone conversation explaining why she had formed the view the applicant could complete her medical degree in a reasonable time. She had great familiarity and understanding of the manifestation of the applicant's condition. She was also an expert with extensive knowledge in dealing with practitioners brought before the NSW Medical Board & Council.

109 Critically, she told Professor Symonds that she was very familiar with the applicant's own pattern of behaviours associated with her psychiatric conditions. Dr O'Brien stated that the applicant responded well to limits. In reaching this conclusion she was able to give a concrete example of a previous similar situation. She had been the treating psychiatrist at a time when the applicant faced a similar crisis of being "barred" from completing her nursing degree. When provided with a deadline in relation to completion of the course, the applicant was able to deal with the situation and successfully complete her degree. Dr O'Brien also stated she told Professor Symonds that she would personally take a more interventionist role to support the applicant to complete her degree, consulting more frequently and more closely monitoring any necessary medications.

110 Professor Symonds gave evidence that while he had regard to the views of Dr O'Brien ultimately he discounted the views of Dr O'Brien, preferring his own assessment that the applicant was on a "downward trajectory". Dr O'Brien put to Professor Symonds sound reasoning why despite past difficulties, the applicant could if granted an extension, complete her medical degree within a reasonable time. Her reasoning was considered. It was the opinion of an expert psychiatrist. Professor Symonds professed no knowledge or skills in psychiatry.

111 The Tribunal also had regard to the fact that Professor Symonds did make it clear that he gave emphasis to the issues of the impact of continuing the degree upon the applicant's health and her suitability to practise as a medical practitioner because of her psychiatric condition.

112 Professor Symonds' evidence was that he considered that the applicant would not be safe to practise even if she was ultimately capable of completing her degree. He said that he considered this to be the case particularly in light of her sudden withdrawal during a clinical case study and her failure to attend surgical practice rotation. He noted that she had a significant absenteeism during the course MEDI 4016. He stated that Dr O'Brien was not aware of this. Dr O'Brien's evidence was that the avoidance formed part of the applicant's condition. She was aware of the absenteeism, but not that the absenteeism was part of the failure.

113 It is not the task of this Tribunal to determine if the applicant would be fit to practice as a medical practitioner if she were to complete her medical degree. Our task is to determine if she was treated less favourably on the ground of her disability when the decision was taken not to grant an extension of time to complete her medical degree. Professor Symonds was very concerned about the applicant's ability to practise due to her psychiatric conditions. The completion of the medical degree does not mean that she can automatically practise as a medical practitioner. Her psychiatric conditions are already registered with the NSW Medical Council. The Tribunal notes that it was common evidence from Dr O'Brien and Professor Symonds that fitness to practise as a medical practitioner is governed by the NSW Medical Council and if the Medical Council deems that the applicant is not fit to practise, then she will not be able to do so.

114 In summary in relation to the issues of poor academic record and currency of knowledge, student three had a poor academic record and also faced similar currency of knowledge issues. The time period sought by the applicant was within the range of other students who had sought extensions of time to complete a medical degree and was similar to that of student three. Professor Symonds gave evidence that he was particularly concerned about the applicant's ability to complete the medical degree within a reasonable time. He did not accept the views of the treating psychiatrist that this condition with extreme anxiety surrounding performance and assessments involving avoidance actually responded well to set limits. His evidence clearly indicated he was very concerned about the impact of continuing the degree upon the applicant's health and about her ability to practise due to her psychiatric condition.

115 The Tribunal finds that there is a probable connection between the decision not to grant the applicant an extension of time to complete her medical degree and the applicant's disability being her psychiatric condition. Section 4A provides that if an act is done for 2 or more reasons, and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason. We do not accept that there was a more innocent and probable explanation for the treatment, particularly as Professor Symond's reasoning specifically details why he considers the applicant's psychiatric condition would render her unfit to practise as a medical practitioner.

116 The Tribunal finds that it is reasonable and logical to draw an inference that the respondent determined not to grant and extension of time to the applicant on the grounds of her disability either alone or at least in combination with other factors.

117 By virtue of section 53 the respondent is vicariously liable for the conduct. The Tribunal finds that the complaint has been substantiated.

118 Having determined that the respondent directly discriminated against the applicant, it was unnecessary to determine whether there had been any indirect discrimination.

Remedy

119 The applicant sought orders that the respondent allow her to continue re-enrol in her medical degree. The evidence is that the applicant will require a minimum time of 18 months in order to complete the necessary courses to obtain her medical degree.

Orders

120 The Dean of Medicine Joint Medical Program for the respondent is directed to exercise his discretion to extend the time for the applicant to complete her medical degree by 18 months.

Costs

121 The applicant sought an order for costs. The Tribunal directs that there will be no order for costs in these proceedings unless the applicant files and serves an application for costs, with supporting submissions, within 28 days of the date of these reasons. If the applicant makes such an application for costs, then the respondent must file and serve submissions in response within a further 28 days. The question of costs will then be determined on the papers.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 28 March 2014