Impairment discrimination, access to exams and termination of enrolment

Facts

In Patel v University of Queensland [2019] QCAT 108 a student from the University of Queensland was diagnosed with bipolar 1, social anxiety disorder and panic disorder at the beginning of 2013, that, he alleged, significantly impacted his academic performance in 2012 and 2013.

The University had terminated the student’s enrolment in 2013, but the student’s appeal was upheld and he continued his studies at the University in 2014.

Subsequently, the University required the student to complete an exam for progression in the course, described as a barrier exam. The following then occurred:

• The student rescheduled the first two attempts due to panic attacks, one of which the University counted as an attempt because the student did not provide a reasonable excuse for his absence.
• The student suffered a manic episode prior to the third rescheduled date and was admitted to a psychiatric ward. While an inpatient, he attended the exam and did not pass. The University refused the student’s further enrolment but the University Senate upheld the student’s appeal because he had not been sufficiently advised that he could reschedule the exam for six months later.
• The University subsequently advised the student that they would be providing him with an independent observer for his exam. The student attempted the exam again almost a year later but did not pass.
• The student subsequently received correspondence advising him that he was excluded from the course on the basis that he had three attempts at the exam, which was the maximum permitted by the examination rules.

What did the student allege?

The allegations made by the student were as follows:

• The University directly discriminated against the student because of his impairment under section 10 of the Anti Discrimination Act 1991 (Qld) because the University imposed the exam observer, who supervised him and no one else, which affected the student’s ability to complete the exam.
• The exam observer was imposed on the student because he had previously alleged discrimination by the University, was detrimental to the student and amounted to victimisation under section 129 of the Act.
• The University indirectly discriminated against the student under section 11 of the Act because the University:
  • failed to provide feedback to the student about prior attempts at the exam
  • insisted the student sit an exam while being a temporary inpatient at a psychiatric war
  • failed to consider the student’s application for a supplementary exam and terminated his enrolment.

What did the Tribunal say?

No direct discrimination or victimisation

The Tribunal held that the exam observer was not imposed due to the student’s impairment, but because the student had lost trust in the institution such that the University sought to ensure that it would be beyond reproach. The impression that the student had lost trust in the University was based on the student’s own submissions.

The Tribunal also rejected the student’s claim that the University victimised him by imposing the exam observer. The Tribunal found that the student has advised the exam observer that he had not been distracted by her presence. The Tribunal observed that to make out victimisation, it is necessary that there is detriment or threatened detriment to the complainant because, relevantly, the complainant alleged a breach of the Anti-Discrimination Act 1991 (Qld) had occurred.

Indirect discrimination upheld

However, the Tribunal found that the student had been the subject of unlawful indirect discrimination, because:

• the student had an attribute within the meaning of section 7 of the Act, being an impairment
• the University imposed a term that, if the student wished to pass the course, the student needed to be able to attend and pass the OSCE exam on the specified date, relevantly 25 January 2017
• the student, who is a person with an attribute, was not able to comply with the term
• a higher proportion of people without the student’s psychiatric/psychological conditions would be able to comply with the term because they would not have a disturbed thought process due to an episode of mania, be recovering from a manic episode, or be on medication to resolve the episode.

The Tribunal rejected the student’s claim that the University terminated his enrolment due to his bipolar disorder, social anxiety disorder, and panic disorder. Rather, the Tribunal accepted that his enrolment was terminated due to multiple failures for a piece of assessment.

The University was ordered to pay the student $2,000, on the basis of the indirect discrimination claim made out.