Tribunal: Fertility clinic's discrimination was legal

A 45-year-old woman with a mental disability has failed to get a ruling that a fertility clinic unlawfully refused to provide her with its services.

The woman complained to the Human Rights Review Tribunal that the clinic discriminated against her because of her age, her past history and ability to cope and because she was single.

A decision from the tribunal published today said the woman had never had a stable long-term partner. Between 2004 and 2006 she had a sexual relationship with a flatmate. It was not a committed relationship and the woman alleged that when she told the flatmate she did not want to have sex with him any more he raped her.

The woman had said there was a subsequent confrontation which escalated. Feeling threatened she pulled a knife out of a block in the kitchen. When police arrived she still had the knife in her hand. She was arrested and pleaded guilty to possession of a knife, willful ill-treatment of animals and trespass.

The flatmate was granted a protection order against the woman, who was convicted for breaching the order three times between 2004 and 2006. She was also convicted of failing to stop for red and blue flashing lights, resisting arrest and assaulting a police officer.

A psychiatrist who saw the woman when she was arrested for breaching the protection order concluded the woman showed features of mild depressive disorder and noted a history "suggestive of a longstanding maladaptive personality features", the tribunal decision said.

Key features of her presentation included depressive symptoms, intense sense of frustration because of the injustice at the hands of the "system", defiant attitude, rigid and distorted thinking, and an apparent denial and minimisation of her own responsibility. That was against a background of what appeared to have been longstanding difficulties in personality functioning, marked by social isolation, unsatisfying interpersonal relationships, low self-esteem and employment failures.

The psychiatrist had said the woman was at risk of developing a full blown depressive illness.

The clinic's defence against the woman's claim was that the potential benefits of the treatment were outweighed by the risks to her and to any child born as a result of treatment, the tribunal said.

The fertility specialist who established the clinic told the tribunal fertility treatment was physically stressful. It was also often associated with psychological stress and it was important that patients were psychologically safe to undergo treatments.

He was particularly concerned about whether the woman would have support during treatment, particularly as he had the strong impression she was unwilling to accept the chance of treatment being successful was very low. Rather she seemed to be concerned only with the urgency of treatment  because of her age.

A counsellor who worked for the clinic said there were serious concerns about the woman's psychological readiness for treatment, including apparent difficulty managing her anger, leading to aggressive outbursts and threats of harm toward others. The woman also had a history of diagnosed depression and had expressed suicidal thoughts.

When the counsellor phoned the woman after the clinic had sent her a letter saying she would not be offered IVF treatment, the call ended with the woman making the comment: "watch your back". The comment was reported to police.

The woman complained that the clinic acted unlawfully by refusing to provide fertility services because of her mental disability, which was a prohibited ground of discrimination.

The tribunal found the woman's mental disability was a material factor in the decision to refuse fertility treatment, and that taking it into account was authorised or required by law. It followed that the clinic did not act unlawfully and the woman's case was dismissed.

The tribunal prohibited identification of the woman, or of the clinic and its employees.