GP clinic triumphs legal battle over patient’s ‘menacing’ dogs

A patient claimed a general practice unlawfully discriminated against him by refusing him and his two dogs, which he claimed were assistance dogs, access to the practice to receive a flu vaccination. The practice successfully defended the patient’s complaint and the Victorian Civil and Administrative Tribunal, which decided in favour of the practice. 

The practice submitted firstly that the dogs were not assistance dogs within the meaning of the Equal Opportunity Act and secondly, that the dogs were menacing dogs with a history of attacking people and pets and that the patient had not met his responsibility to keep the dogs muzzled and on a lead at all times when in public.

The patient made an application to the Victorian Civil and Administrative Tribunal (the Tribunal) alleging the practice had breached the Equal Opportunity Act 2010 (Vic) (EO Act) by refusing him and his two German Shepherds access to the GP practice for a flu vaccination in May 2020. The patient’s application to the Tribunal was brought on the basis that he was affected by a mental illness, which is a protected attribute under the EO Act, and his dogs are assistance animals under the EO Act.

In support of his application, the patient provided two letters; one from his doctor and another from his psychologist. Both letters referred to the dogs as support dogs and the psychologist stated in support of the patient’s submissions that his support dogs bring an “ambience of calm and friendship” and were always “impeccably behaved”.

In response to this application, the practice sought that the Tribunal strike out the application on the basis that it was vexatious, misconceived or lacking in substance, or alternatively, an abuse of process.  The practice was successful in its strike out application, the Tribunal granting it.

The key argument raised by the practice was that it should be exempt from the prohibition of unlawful discrimination in this instance on the basis of its two main obligations under the Occupational Health and Safety Act 2004 (VIC) (OH&S Act). Firstly, its obligation to provide and maintain for employees of the employer, a working environment that is safe and without risks to health. Secondly, its obligation to persons other than employees (e.g. patients) – to ensure they are not exposed to risks to their health and safety arising from the conduct of the undertaking of the employer.

The practice further submitted that the patient’s dogs were not assistance dogs, referring to an earlier decision by Judge Woodward of the Tribunal. Judge Woodward found neither of the dogs had any training to alleviate the effects of the patient’s disability and consequently, were not assistance animals within the meaning of the EO Act.

The practice’s final submission was that the patient’s dogs had been deemed menacing dogs under the Domestic Animals Act 1994 (VIC) (DA Act), and were required to be muzzled and on a lead in public and when the patient attended the practice in May, neither dog was muzzled or on a lead and the practice was within its rights to exclude the dogs.

The patient relied upon letters from the doctor and psychologist that his dogs were assistance dogs, claimed he was denied service by the practice and that this was an act of unlawful discrimination because of the connection between his assistance dogs and his disability. He denied his dogs were menacing and consequently did not need to be fitted with a muzzle or on a lead and claimed his dogs were trained as required to fall within the definition of assistance animals under the EO Act.

Though the tribunal did find the patient was denied service by the practice, the dogs were not assistance animals within the meaning of the EO Act and that the psychologist did not have the knowledge to determine if the dogs were assistance animals and that her letter could not be relied upon. Further, the tribunal member found the dogs were menacing dogs within the meaning of the DA Act and the patient had not met his obligation to muzzle them and put them on leads in the practice. Further, the member was satisfied the practice was able to deny the patient service in order to meet its duties under the OH&S Act. On the above bases, the patient’s application was dismissed.

However, the tribunal stated it was not ready to have the patient declared as vexatious based on the submissions made by the clinic.