Articles and Case Studies

Dog Discrimination

04 Oct 2015

by Ms Karen McMahon

Dog


Case history

The doctor was concerned about a patient who attended the practice with a large dog, which the patient described as an “assistance animal”. The doctor thought the dog might frighten other patients in the waiting room. He was unsure if he was able to advise the patient that he could no longer bring the dog to the practice.  

Medico-legal issues

Discrimination legislation across Australia makes it unlawful to discriminate against a person with a disability because they are accompanied by an assistance animal in certain circumstances.1 This situation may arise in practice for doctors when a patient seeks to be accompanied by an assistance animal while attending the doctor’s surgery, and perhaps also during a consultation.

Although an assistance animal includes a guide dog for the vision and hearing impaired, the definition of assistance animals covered by legislation is broader than this.
Under the Disability Discrimination Act 1992 (Cth), an assistance animal includes a dog or other animal trained to assist a person with a disability to alleviate the effect of their disability and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place.2 An animal may qualify as an assistance animal by reason of being accredited under state or territory law, or accredited by an animal training organisation prescribed by the regulations.3

This recognises that there are currently a wide range of assistance dogs helping people with disabilities, e.g. alert and response dogs for conditions such as epilepsy and diabetes; dogs that assist physically disabled persons to perform specified tasks, and psychiatric service dogs.

An animal does not qualify as an assistance animal merely by reason of providing companionship. It is not always clear whether an animal is an assistance animal so that the provisions of the Act apply.4 The Act provides that it is not unlawful to request the person with the disability to produce evidence that the animal is appropriately trained as an assistance animal.5

It is also not unlawful to require that the assistance animal remain under the control of the person with the disability or another person on their behalf, although this may not require direct physical control.6 Further, the Act provides that it is not unlawful to discriminate when reasonably necessary, if it is suspected that the assistance animal has an infectious disease, or if it is otherwise necessary to protect public health.7 This may arise, for example, if the animal is displaying aggressive behaviour which threatens other patients at the practice.

Failure to comply with the legislation may result in the disabled person making a discrimination complaint against the practitioner to the Human Rights and Equal Opportunity Commission, and court proceedings against the practitioner which may include a claim for compensation.

Summary points

  • Practitioners should be aware of their obligations under the discrimination legislation so as to not unlawfully refuse access to assistance animals.
  • If there is uncertainty, it is appropriate for a practitioner to ask the person accompanying the animal whether it is an assistance animal and for evidence in support of this.
  • If you are uncertain as to how to proceed, we encourage you to contact our Medico-legal Advisory Service for advice and information about how the legislation applies to your particular situation.

Karen McMahon  
Medico-legal Adviser (Solicitor)  
MDA National

References

  1. The Disability Discrimination Act 1992 (Cth) applies across Australia. There is also applicable state and territory legislation which contains varying provisions relating to guide dogs and assistance animals. The Commonwealth Act prevails over the state and territory law to the extent of any inconsistency.
  2. Section 9(2)(b) and (c).
  3. Section (9)(2)(a) and (b). Whilst a variety of organisations offer accreditation services, there is no standard system of accreditation for assistance animals which applies throughout Australia and no animal training organisations are currently prescribed by the regulations. There is legislation in Queensland and South Australia that provides for state accreditation of assistance animals.  
  4. An assistance animal may be identifiable by reason of a badge, medallion or harness depending upon the source and status of the identification.
  5. Section 54A(5) and (6).
  6. Section 54A(2) and (3).
  7. Section 45A.
Regulation and Legislation, Anaesthesia, Dermatology, Emergency Medicine, General Practice, Intensive Care Medicine, Obstetrics and Gynaecology, Ophthalmology, Pathology, Practice Manager Or Owner, Psychiatry, Radiology, Sports Medicine, Surgery
 

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