Australia: Federal Court rules in favour of supervisors of trainee psychiatrist in claim for racial discrimination – Maiocchi v Royal Australian and New Zealand College of Psychiatrists (No.4) [2016] FCA 33

Last Updated: 18 September 2016
Article by Zara Officer

Dr Maiocchi was a trainee psychiatrist on rotation at the Northside Clinic in Greenwich, NSW in the early months of 2010. During her time there, she received an unsatisfactory mid-term evaluation, therefore a remediation plan was prepared and adopted in relation to her performance. Later, a decision was made to terminate her clinical privileges at the Northside Clinic. Dr Maiocchi alleged that these actions were taken unreasonably based upon her race or ethnic origin, and were unlawful under Section 9 of the Racial Discrimination Act 1975 (Cth) (the Act).

The proceedings

Proceedings were originally commenced in June 2012 in the Federal Court against numerous respondents and the proceedings gave rise to several interlocutory applications and interlocutory judgments, and four respondents remained. These were Dr Maiocchi's direct supervisor at the Northside Clinic, Dr Wilson, psychiatrist, the director of post graduate psychiatry training with the Northern Sydney Local Health District, Dr Jurd, the Royal Australian and New Zealand College of Psychiatrists (RANZCP) and the Northern Sydney Local Health District. The claims against the RANZCP and the Northern Sydney Local Health District were on the basis that they were vicariously liable for the acts of Dr Wilson and Dr Jurd.

The Court had to decide whether Dr Wilson at Northside Clinic contravened Section 9 of the Act by basing his actions on Dr Maiocchi's race, descent or national or ethnic origin in relation to:

  1. his preparation and adoption of a mid-term evaluation in relation to Dr Maiocchi;
  2. his request for a remediation plan for Dr Maiocchi; and
  3. his allegations of unsatisfactory performance in relation to her work in a letter to Dr Jurd in May 2010.
  4. Further, the Court considered whether Dr Jurd contravened

Section 9 of the Act by basing his actions on Dr Maiocchi's race, descent or national or ethnic origin in relation to:

  1. preparing and adopting a remediation plan in relation to Dr Maiocchi;
  2. his alleged acceptance at face value of the letter from Dr Wilson concerning unsatisfactory performance; and
  3. withdrawing Dr Maiocchi's clinical privileges.

Background

Dr Maiocchi immigrated to Australia in April 1990 from Argentina. She qualified in Argentina as a medical doctor in 1977, and as a medical specialist in radiation oncology in 1994. Dr Maiocchi became an Australian citizen in mid-1993. Spanish was her first language and she spoke that language with her husband at home, but her two children had English as their first language. Dr Maiocchi's English language communication skills were an important issue in the proceedings.

Dr Maiocchi attained full registration as a medical doctor in Australia in 2004. In 2005 Dr Maiocchi was admitted to the RANZCP as a trainee in psychiatry and she also undertook a Master's Degree in psychiatry with the NSW Institute of Psychiatry.

The claims

The events giving rise to the proceedings generally occurred during the period March to May 2010 when Dr Maiocchi was working as part of her training as a registrar in psychiatry at the Northside Clinic. By that time she had successfully completed 9 rotations as a psychiatry trainee.

Dr Maiocchi was given an unsatisfactory mid rotation report and a remediation plan was prepared requiring her to "study English, particularly spoken language skills, moderate her accent, as well as read lowbrow magazines, thereby increasing fluency in local vernacular", amongst other matters. Dr Maiocchi argued these actions were discriminatory.

Dr Maiocchi argued that Dr Wilson's letter and the withdrawal of her clinical privileges was based on her status as an overseas trained doctor.

The Respondents strongly denied Dr Maiocchi's claims that they had discriminated against her on grounds of her race, descent, national or ethnic origins.

The findings

On 5 February 2016 Justice Griffiths delivered a detailed judgment setting out the extensive evidence provided to the Court at the hearing. Justice Griffiths accepted that there were reasonable explanations for the actions of the respondents, including withdrawal of clinical privileges, based on Dr Maiocchi's clinical performance at the Northside clinic.

The Court accepted that Dr Wilson prepared the mid-term evaluation, and requested a remediation plan as a means to address the relevant performance issues, and for Dr Maiocchi to successfully complete her traineeship. The Court found that Dr Wilson's actions were not motivated by her ethnic or national origins.

The Court accepted that Dr Jurd's role in drafting and finalising the remediation plan was directed at improving Dr Maiocchi's oral communication skills to a level that was required for a trainee psychiatrist. This was reasonable and appropriate in the context of the importance of communication skills in psychiatry, and not motivated by Dr Maiocchi's ethnic or national origins.

The importance of communication skills in the practice of psychiatry

The Court accepted expert evidence that psychiatrists working in Australia require a high degree proficiency in English in a multi-disciplinary setting, to communicate with patients, colleagues, staff, carers and family members. Dr Maiocchi had obtained certificates of completion from the NSW Institute of Languages in 1991 and had passed the Australian Medical Council examinations in English. Dr Maiocchi demonstrated sufficient communication and language skills for the purposes of her various professional qualifications including her Masters Degree, however, the Court accepted evidence from Dr Jurd and Dr Wilson and from an independent expert psychiatrist, that competency in these areas was not sufficient for the purposes of becoming a qualified psychiatrist. Psychiatrists require communication and language skills of a high order, from high powered professional English, through to fluency in local vernacular to deal with a range of patients of varying socio-economic backgrounds and educational level.

The outcome

Justice Griffiths found Dr Maiocchi failed to establish to the relevant standard the allegations she made against Dr Wilson and Dr Jurd for racial discrimination under Section 9 of the Act. It was unclear that any complaint of indirect discrimination was pressed, however, if it were, it would be rejected. Dr Maiocchi failed to identify any requirement or condition imposed on her by Dr Wilson, or by Dr Jurd which she could not comply with, which was not reasonable in all the circumstances.

Similarly, Dr Jurd's acceptance of Dr Wilson's letter of complaint and Dr Jurd's involvement in the decision to terminate Dr Maiocchi's clinical privileges at the Northside Clinic were found to be not based on racial discrimination.

In the absence of any adverse findings with respect to Drs Wilson or Jurd, no issue arose as to the vicarious liability of the RANZCP or the Northern Sydney Local Health District.

Dr Maiocchi's application was dismissed with costs and no damages were awarded, and nor would damages have been awarded if Dr Maiocchi had succeeded in her case.

Holman Webb acted for Dr Wilson in this matter.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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