Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of university law and/or university discrimination before acting or relying on any of its content.
Mental health is a topical topic in workplaces throughout Australia. The university and higher education sector has not been immune. Unfortunately, many students will at some point experience mental health issues such as depression and anxiety which can seriously impact upon their ability to study and prepare for examinations, assignments and assessments, as well as their academic progression at either school, TAFE, their private College and/or university.
Although most schools, colleges and universities have policies in place to deal with students with mental health issues (such as ‘special consideration’ provisions and supplementary exams), as well as those suffering from disabilities, students may sometimes feel that they have been dealt with unfairly.
With the incidence of mental health complaints reported to be on the rise, it is important for students and universities alike to understand their rights and obligations in this sometimes difficult area.
Case Note: BKY v The University of Newcastle  NSWCATAD 39
In BKY v The University of Newcastle, the NSW Civil and Administrative Tribunal (‘NCAT’) found that the University of Newcastle (‘the university’) had discriminated against a medical student by refusing to extend the time needed to complete a five year medical degree on the basis of disability under the Anti-Discrimination Act 1977 (NSW).The matter focussed on the difficulties associated with attempting to reconcile two important concerns: the need to uphold the duty to not discriminate against students with a disability, and safeguarding the right of the public to have safe and proper medical care.
The applicant (BKY) commenced a 5 year full time medical degree in 2004 at the University of Newcastle (the respondent). BKY did not complete his medical degree (MBBS) within 8 years as was required. He therefore sought an extension.
The applicant claimed that, in declining her application for an extension, the respondent discriminated against her on the basis of her mental health disabilities; throughout the period of her enrolment in the course, the applicant had been diagnosed with Bipolar II Disorder, Borderline Personality Disorder and suffered from severe psychosocial stressors. The applicant contended that these psychiatric conditions fell within the meaning of a ‘disability’ pursuant to the Anti-Discrimination Act 1977 (NSW) and that there was either direct or indirect discrimination against her by the respondent.
It was put forward that the applicant had been seeing a psychiatrist for her psychiatric conditions on a weekly basis during the course of her completed Bachelor of Nursing and then throughout her period of full time work as a registered nurse. These conditions saw the applicant fail to sit exams and undergo some clinical assessments. This was supported by statements from the applicant’s psychiatrists, whereby BKY’s disorders “manifested itself in anxiety, especially performance anxiety approaching examinations and at such times she would respond with avoidance behaviour”.
The respondent argued that the refusal to grant the extension was based on numerous factors including her substandard academic record in that she had:
only completed three and a half years of her course
she had passed thirteen courses after repeating eight of them
she had failed four courses and was awarded a withdrawal without penalty for five
she risked failure for more than 50% of her mandatory course on six separate occasions
The advice of the respondent’s psychiatrist was considered and the university took the view that, even if an extension were granted, the respondent would not be able to complete the medical degree. Concerns were also raised as to the risk the applicant may pose in working safely as a doctor due to her psychiatric conditions and her fitness to practise medicine more generally.
Law and Tribunal’s Application
Section 49B(1) of the relevant legislation provides that a person discriminates against another on the ground of disability if, on this ground, they:
(a) treat the aggrieved less favourably than those in the same or similar circumstances (not materially different) and without a disability (direct discrimination); or
(b) require the aggrieved to comply with a requirement or condition with which a substantially higher proportion of those without disability, are able to comply, and is not reasonable to expect the aggrieved to be able to comply (indirect discrimination).
The claim for direct discrimination was proven according to its two elements, (i) the less favourable or differential treatment; and (ii) the causation issue.
NCAT found an appropriate comparator with another student that failed eight subjects, including the failure of two subjects twice, prior to seeking an extension of time, and was without disability. This student was granted an extension.
On the causation issue, the Tribunal found a probable connection between the decision by the university not to grant the extension to complete the medical degree and the applicant’s disability. Section 4A of the Act provides that where an act is done because of two or more reasons and one reason consists of unlawful discrimination, regardless of whether this was the dominant reason, then it is taken to be done that that reason. Thus, the complaint was substantiated and the university found vicariously liable for the conduct of its employees (See: Anti-Discrimination Act 1977 (NSW), s 53).
NCAT, or the Tribunal, upheld the applicant’s claim that the respondent, the University of Newcastle, had discriminated against her on the grounds of disability and ordered the university to grant her an 18 month extension.
This case serves as an important reminder to universities to be consistent and fair in their treatment of students suffering from disabilities and mental health conditions.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org