HIV, post mortem & discrimination: Can a dead person have a disability?

Sydney Local Health District (Department of Forensic Medicine) v ANU (EOD) [2013] NSWADTAP 47 was the  second case to reach the Administrative Decisions Tribunal raising the issue of whether post mortem procedures followed by the Department of Forensic Medicine infringe the Anti Discrimination Act in the way they deal with the bodies of persons who die HIV positive. The former case was dealt with on appeal as Sydney Local Health Network v QY and QZ [2011] NSWCA 412.

This more recent ADT internal appeal decision held at [97] that under the Act, is possible for a dead person to have a disability. However that did not result in a final decision, for reasons explained at [108] – [109]:

108For these reasons, in our view:

(1) the deceased was a “person” to whom Ms ANU, as an aggrieved person, was related by blood within the meaning of the definition of “relative” in s 4(1) at the time of the alleged discrimination;

(2) thus, notwithstanding that he was dead at the time of the alleged discrimination, he was a “relative” of Ms ANU for the purposes of s 49B(1);

(3) it is possible for a dead person to have a disability falling within paragraph (b) or (c) of the definition of “disability” in s 4(1) of the ADA and it is possible for a dead person to have had in the past or to be thought to have had in the past all of the types of disability listed in the definition in s 4(1);

(4) whether the deceased had a “disability” falling within the meaning of that term for the purposes of the ADA at the relevant time cannot be determined in this appeal and should be determined at the substantive hearing of the matter.

109It follows that each of the grounds of appeal in relation to which leave to appeal was granted should be rejected. There was no basis for summarily dismissing Ms ANU’s complaint under s 102 read with s 92(1)(a)(ii) of the ADA and the Deputy President’s decision not to do so was correct. Accordingly, the appeal should be dismissed. The matter should proceed to a substantive hearing.