court hammerADVOCATES for people living with HIV have raised concerns about the possible implications of a case in front of the Administrative Decisions Tribunal where a mother has taken anti-discrimination action against health authorities after her HIV-positive son was refused an autopsy.

The woman lodged the complaint against the Sydney Local Health District and Department of Forensic Medicine after her son died at St Vincent’s Hospital in 2010.

The local health authority has since on two occasions attempted to have the tribunal throw out the case before it reached a hearing, suggesting that, under the law, a dead person could not be considered to have a disability after they were no longer alive.

Following his death, the man’s family requested that he undergo a post-mortem examination. However, they were informed the body would not be reconstructed following the autopsy, as per the guidelines at the time, as he had HIV.

The man’s mother then launched action on grounds that both her and her son were directly discriminated against due to his HIV status.

HIV/AIDS Legal Centre principal solicitor Indraveer Chatterjee, who is representing the woman in the tribunal, told the Star Observer that while the NSW health department last year changed its policy of not performing autopsies on the bodies of people who had HIV or Hepatitis C, the current case highlighted how people who were subjected to the guidelines continue to be affected.

“The complaints are taken under the Anti-Discrimination Act, as a complaint by a person ‘with a relative or associate with a disability’,” he said.

“Basically, the act is meant to prevent discrimination against people with disabilities, as well as their friends or relatives.

“The department denied and continues to deny that the act applies to the department, on the basis that the person with the disability is deceased.”

Chatterjee stressed the possible implications if the department’s arguments prospered in the tribunal, saying it could weaken the Anti-Discrimination Act.

“Currently, the Act allows for incidents such as if I’m HIV-positive, you don’t rent me a house, I can take a case against you. Equally, if my partner’s HIV-positive, and you won’t rent me a house because my partner is HIV-positive, I can take a case against you,” he explained.

“If the department are successful at their argument, then under the Anti-Discrimination Act our client will no longer be considered related to her son because he is deceased.”

Positive Life NSW president Sonny Williams expressed concern.

“(We) considered the Department of Forensic Medicines’ previous policy of not reconstructing the bodies of people infected with HIV and HCV to be unnecessary and discriminatory,” he said.

In its judgement, the three-member tribunal panel indicated the matter will now proceed to a substantive hearing in early 2014.

“It is possible for a dead person to have had in the past, or to be thought to have had in the past, all of the types of disability listed in the definition,” the tribunal found.

“There was no basis for summarily dismissing [the mother’s] complaint.”

A spokesperson for the Sydney Local Health District told the Star Observer that it may appeal against the tribunal decision to send the matter to the full hearing next year.

“This matter is currently on hold, pending a possible appeal. As such, we are unable to provide any further comment,” the spokesman said.

In September last year, the occupational health and safety guidelines governing autopsies were altered following personal championing of the changes by Health Minister Jillian Skinner.

“I am sorry it has taken NSW so long to come into line with other states and territories and I regret that previous governments failed to address this matter earlier,” Skinner said at the time.

“This discriminatory practice not only failed to treat the deceased with the respect and dignity to which they were entitled, but it often left their partners, families and friends feeling justifiably robbed of the right to pay their last respects in an appropriate fashion.”

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