Discrimination and IVF treatment

In CBA v LKJ Ltd [2014] NZHRRT 13, a fertility clinic declined in vitro fertilisation treatment to a 45 year-old single woman on grounds that included her mental health.

She claimed discrimination on the grounds of disability (mental health). The doctors claimed it was in her and the hypothetical future child’s best interests.

The case was brought under section 44 of the Human Rights Act 1993 which provides:

44 Provision of goods and services

(1) It shall be unlawful for any person who supplies goods, facilities, or services to the public or to any section of the public—

(a) to refuse or fail on demand to provide any other person with those goods, facilities, or services; or

(b) to treat any other person less favourably in connection with the provision of those goods, facilities, or services than would otherwise be the case,—

by reason of any of the prohibited grounds of discrimination.

The defence was that the decision was a legitimate clinical judgement – that the treatment was not in the best interests of either the plaintiff or any future child. A significant risk of harm to the plaintiff outweighed the small prospect of the treatment resulting in an ongoing pregnancy. They relied upon section 21B(1) of the Human Rights Act, which says:

“To avoid doubt, an act or omission of any person or body is not unlawful under this Part if that act or omission is authorised or required by an enactment or otherwise by law.”

An important question became “what is that enactment or law, in the circumstances of this case?”

The Tribunal accepted that the plaintiff’s mental disability was a material factor in the clinic’s decision. At the time of the impugned decision, the clinical team had not yet seen the plaintiff’s psychiatric report, but they clearly suspected a psychiatric illness or psychological impairment of some kind.

The key question was whether the clinicians’ decision was made “by reason of” her mental health.

In Air NZ Ltd v McAlister [2010] 1 NZLR 153, the Supreme Court examined the nearly identical phrase in section 104(1) of the Employment Relations Act 2000. Elias CJ, Blanchard J and Tipping J held that it required the relevant ground of discrimination to be a “material factor” or “ingredient” in the decision. McGrath J said a “causative relationship” was necessary between the prohibited ground and the action complained of. Though a subjective test, its outcome can usually be inferred from the circumstances of the case.

In this case, the outcome was clear. The plaintiff’s mental health was not the only factor considered, but it was certainly a material factor in the decision. The Tribunal noted that this finding alone did not mean that the decision was discriminatory.

In turning to section 44(1)(b), the Tribunal distinguished between prohibitions on discriminations that require a comparator and those that do not.

In McAlister, Tipping J used the language of “absolute prohibitions” and “comparative prohibitions”. In this case, the phrase “less favourably” in section 44(1)(b) clearly implied a comparison – subsection (a), however, is an absolute prohibition and does not.

The Tribunal then discussed the identity of the comparator. Tipping J (in McAlister) said the most appropriate comparator was a person in exactly the same situation as the complainant, except for the feature complained about. Admitting this “mirror” comparison had its problems, the Tribunal nonetheless adopted it in this case. This means the comparator was a female patient not 45 years or older, not single and most importantly not unable to cope with the treatment, pregnancy and parenting.

The Tribunal reasoned that the plaintiff was not treated “less favourably” than others by reason of her mental disability. All women were offered treatment on the same terms. That some fail this test where others succeed is not discriminatory if prospective patients are all assessed against the same criteria.

For this reason, the Tribunal found that the plaintiff failed under subsection (1)(b).

Turning to subsection (1)(a), it is absolute and not comparative so the “same criteria defence” will not work. Still, the Tribunal concluded that taking into account the plaintiff’s mental disability was “authorised or required” under section 21B(1).

The Tribunal considered that the clinicians made the appropriate and correct judgement. More importantly, they were exercising powers under a raft of enactments such as the Health and Disabilities Services (Safety) Act 2001, NZA8181 Fertility Services and the Code of Health and Disability Services Consumers’ Rights.

Additionally, section 21B(1) is engaged by general common law duties to perform their professional duties to the standard of reasonable care and skill.

Therefore, even though section 44(1)(a) was engaged by the clinicians decision, section 21B(1) offered a defence. And, in case they were wrong regarding subsection (1)(b), the Tribunal held the same defence would apply here also.

This case summary was prepared by the New Zealand Centre for Human Rights Law, Policy and Practice at the Faculty of Law, Auckland University, and is reproduced here with permission.

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