Wilson v Western Health (Human Rights) [2014] VCAT 771 was an application seeking damages and changes of policies arising from a decision by Western Health that the applicant was not suitable to participate in its publicly funded home birth program (from Sunshine Hospital, Victoria) because she did not have an ‘uncomplicated pregnancy’ due to her advanced maternal age (45 at the time of giving birth) and her multiparity (having previously had 11 children).

The applicant’s medical history at [28] included 10 home births, with and without assistance, and 2 birth centre deliveries.

The application asserted discrimination under the Equal Opportunity Act 2010 (Vic) and breaches of human rights, at common law and under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

Expert evidence was relied upon by the applicant, including evidence from an obstetrician Associate Professor Bisits (see [139]) and a midwife Professor Hannah Dahlen (see [143]). Expert evidence was also relied upon by the respondent. The Tribunal assessed the competing evidence (see [167] – [188]).

The discrimination argument was addressed at [189], focusing primarily on the alleged age discrimination which was not found. The Tribunal said at [210] – [213]:

  1. It is clear from the expert evidence of Prof Wallace (and, to some extent, the evidence of A/P Bisits) set out above that the respondent did not treat Mrs Wilson unfavourably on any basis, in deciding she was not suitable for the program. It is beyond doubt that the decision made was the result of a careful clinical risk assessment by A/P Teale, such that he concluded that it was simply too risky for Mrs Wilson and her baby, to allow her to have a home birth with the program. Those risks were that of a PPH (which all experts agreed is not able to be fully screened for before the actual birth) and foetal asphyxia.

  2. The decision did not result in Mrs Wilson or her unborn baby being treated unfavourably in any sense. On the contrary, the decision taken was in their best medical interests and therefore a favourable one for them. To the extent (which is doubtful) Mr Wilson has any legal standing to bring this proceeding in his own capacity, the decision was in his best interests and favour as well, assuming (which clearly is the case) that he did not wish for any harm come to his wife and unborn child.

  3. The fact that the risks assessed did not eventuate and all went smoothly for Sophia’s birth (which the Wilsons decided to have at home, outside the program) is a happy result for all concerned. However, this does not mean that the risks identified by A/P Teale were not very real. The subsequent safe arrival of Sophia does not negate the validity of his risk assessment conducted at the relevant time before her birth. It does not retrospectively make A/P Teale’s decision of her unsuitability for the program, one that caused the applicants to be treated unfavourably because (for instance) they missed the opportunity of a home birth within the program.

  4. In conclusion, therefore, the respondent has not directly discriminated against the applicants.

Further analysis followed regarding possible indirect discrimination, leading to a finding (at [262]) that the  program’s requirement of an uncomplicated pregnancy was reasonable as a matter of law hence there was no indirect discrimination.

In relation to the human rights argument, the Tribunal concluded at [311]:

….no human right (Charter or common law), justifies a conclusion that the respondent should have allowed Mrs Wilson to participate in the program when (as here) it was unsafe to do so, specifically, because it was simply too risky for her and her baby. The applicants did not point me to any authority dealing with similar circumstances to the present case, supporting their argument in this regard. Their arguments that the respondent has breached its human rights, at common law or under the Charter, are rejected.

The  application was dismissed.

With thanks to Professor Cameron Stewart, for highlighting this decision.

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