A Complainant
(Represented by Friend)
V
Health Service Executive Southern Area
(Represented by Mr. Diarmuid Cunningham, Comyn Kelleher Tobin, Solicitors)
1. Dispute
1.1 The complainant alleges that she was discriminated against by the respondent, the Health Service Executive, on the disability ground contrary to the terms of the Equal Status Act, 2000-2004. She is alleging that the respondent failed to provide her with the medical care/assistance she required as a person with a disability.
2. Summary of the Complainant's Submission
2.1 The complainant in her submission to the Tribunal set out the history of her medical problems and her dealings with a number of hospitals seeking to access medical services for her complaints. She said that she was knocked down by a car as a child and suffered injuries and she believes were never properly treated. She also alleges that she was subjected abuse both as a child and an adult including sexual assault and rape. A complaint was made about the abuse matters and they were subject to investigation.
2.2 She submitted that as a result of these traumas coupled with the lack of proper medical care provided by the various hospitals and doctors she has attended, she has suffered both physical and psychological disabilities. She is now unable to walk and uses a wheelchair. She said that she has attended a number of different hospitals and doctors in different areas of the country and she alleges she has not been given proper medical care. On or about May 2004 she moved to Cork where she attended 2 hospitals. She said that she was an in-patient in the South Infirmary Hospital and an outpatient in the Cork University Hospital which she started attending in July 2004.
2.3 The complainant submitted that in July 2005 her carer contacted the HSE and spoke to Mr. Michael Shemeld, Development Manager in the Physical and Sensory Disability Services of the HSE, seeking medical help for her and also assistance in taking care of her. Following this contact the complainant said that she was visited by the public health nurse and the physiotherapist. She also had a visit from the occupational therapist. She said that prior to this she had very few visits from the public health nurse. Following these visits the HSE wrote to the complainant on 26th July 2007 setting out a number of matters that they proposed to deal with, seeking further information concerning her medical care and requesting her permission to get further details. She was advised that Mr. Shemeld was going on holidays and she should send her response to Ms. Carmel Barrett. The complainant and her carer said that they had not time to respond to the letter.
2.4 On the 8th August 2007 the complainant's carer contacted Mr. Shemeld's office and spoke to Ms. Barrett as Mr. Shemeld was on holidays. The complainant said that her telephone was on speaker and she heard the conversation with Ms. Barrett. Her carer asked for medical tests to be carried out. During the course of this conversation she remembers that her carer informed Ms. Barrett that she and her carer were of the view that her GP was not doing everything that the complainant requested her to do.
2.5 The complainant said that when she contacted the GP at a later date to get a prescription, the GP informed her that she no longer wanted her as a patient. Her GP told her that she was informed by the HSE that she (the complainant) had made a complaint about her to the HSE. The complainant submitted that neither she nor her carer made a complaint about the GP. Her carer was simply seeking assistance for her from Mr. Shemeld's office. She submitted that this caused great difficulties for her and it was some 2 months later before she could get another GP in the General Medical Service.
2.6 The complainant said that she had a difficulty with the physiotherapist calling and carrying out therapy exercises without first having tests carried out in the hospital and a diagnosis of her illness being made. She said that she was of the view that the respondent was refusing to treat her. She agreed that she has tests carried out by doctors in Cork University Hospital and other hospitals and that she disagrees with their diagnosis.
2.7 Replying to the respondent's case the complainant agreed that the public health nurse called to her on a number of occasions during the relevant period of her complaint. She also said that she declined physiotherapy because a proper diagnosis of her illness had not been made and this was the reason her carer contacted Mr. Shemeld. He was seeking assistance for her and also seeking assistance with her care. The complainant said that she had no difficulty with the occupational therapist and was happy with the service she received
3. Respondent's Case
3.1 Mr. Shemeld, Manager of the Physical and Sensory Disabilities Unit said that he was acting Care Group Coordinator and he received a complaint about the services being provided to the complainant. These complaints came through the office of the then Tánaiste and the office of the Chief Executive of the HSE. Mr. Shemeld said that he immediately contacted the complainant's carer who gave him a detailed account of the health problems of the complainant. He said that he understood that the complaint referred to the level of services being offered to the complainant. He contacted the public health department and the public health nurse paid a visit to the complainant. Mr. Shemeld said he had 2 conversations with the carer, one on 11th of July 2005 and the other on 14th July 2005. He also wrote to the carer on 14th July 2005 setting out a number of actions he proposed to take including contacting the Community Services staff who were already providing services to the complainant.
3.2 Mr. Shemeld said that he contacted the Community Services and the complainant was visited by the Community Physiotherapist and the Public Health Nurse and they reported back to him. He then wrote a letter to the complainant on the 26th July 2005 setting out a number of actions he proposed to take. He said that he would follow up on her application for a personal assistant, that she had been assessed by the physiotherapist who would prescribe a series of exercises for her, that the occupational therapist would investigate the provision of a more accessible shower, and that he would look at providing respite care to alleviate her current position. Mr. Shemeld said that it was necessary to provide services to the complainant in a coordinated manner. He said that he understood that the complainant had been an in patient in the South Infirmary Hospital in Cork and had been referred to a number of services and specialists. In order to coordinate the services, he sought permission from the complainant to contact this hospital to find out the outcome of her stay there. He also asked for permission to contact her GP.
3.3 Mr. Shemeld said that he went on holidays and Ms. Carmel Barret who worked in the office took charge of the case in his absence. Ms. Barrett stated that she received a telephone call from the complainant's carer on behalf of the complainant on 8th August 2005. She suggested that the complainant should contact her GP concerning tests she wished to have carried out. The carer made a number of allegations concerning the medical treatment she had received from medical personnel including her GP. Ms. Barrett said that the carer, who was speaking on behalf of the complainant, was argumentative and aggressive and she took a note of the conversation. She brought the contents of the telephone conversation and the allegations concerning the GP to the attention of Ms. Greta Crowley, senior manager, in charge of the area. Ms Crowley then managed the complainant's file pending Mr. Shemeld's return from holidays. Mr. Shemeld said that the complainant's complaint about the medical treatment was brought to the attention of her GP. It is normal practice to make a GP aware of complaints from patients and is provided for in the Provision of Services Contract the HSE has with GPs.
3.4 Ms. Barrett wrote to the complainant on 1st September 2005, reminding her about the information sought by Mr. Shemeld, in his letter of 26th July 2005 regarding her treatment at the South Infirmary. The complainant did not respond.
3.5 Mr. Shemeld said that the HSE started providing services to the complainant in or around June 2004. In relation to the complainant's complaint about the public health nurse not visiting her regularly, Mr. Shemeld said that the complainant had about 7 visits from the public health nurse from June 2004 to June 2005 and she continued to visit on a regular basis after this also. Mr. Shemeld said that the public health nurse reported in July 2005 that the complainant told her she did not require her to visit. Both the physiotherapist and the occupational therapist had offered services to the complainant in June 2004. The complainant had declined physiotherapy.
4. Conclusions of the Equality Officer
4.1 The matter referred for investigation turns upon whether or not the complainant was discriminated against in terms of Sections 3(1)(a), 3(2)(g), and 4(1) of the Equal Status Acts, 2000-2004 and contrary to Section 5(1) of that Act. In reaching my decision I have taken into account all the submissions, both oral and written, made to me by the parties in the course of my investigation into the complaint.
Section 3(1)(a) provides, inter alia, that discrimination shall be taken to occur where:
"On any of the grounds specified... (in this case the disability ground).... A person is treated less favourably than another person is, has been or would be treated. Section 3(2)(g) provides that: As between any two persons, the discriminatory grounds ... are ...
that one is a person with a disability and the other either is not or is a person with a different disability (the disability ground)."
Section 4(1) provides:
"For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service."
A person making an allegation of discrimination under the Equal Status Acts, 2000-2004 must first establish a prima facie case of discriminatory treatment. Once a prima facie case of discrimination has been established by the complainant, the burden of proof then shifts to the respondent to rebut the presumption of discrimination.
4.2 I have identified the key issues to establish a prima facie case as follows:
(i) is the complainant covered by the discriminatory ground? (in this case has the complainant a disability?)
(ii) is there evidence that she has been subject to a specific treatment by the respondent?
(iii) is there evidence that the treatment received by the complainant was less favourable than the treatment someone, not covered by the discriminatory ground or someone with a different disability, would have received in similar circumstances?
(iv) did the respondent's actions amount to a refusal or failure to provide reasonable accommodation, in accordance with section 4 of the Equal Status Act, 2000, for the complainant's needs as a person with a disability, which made it impossible or unduly difficult for her to get a service ?
(v) would providing for those needs have given rise to greater than nominal cost to the respondent?
4.3 While all the issues above do not have to be decided in the complainant's favour for her to succeed she needs to satisfy test (i) plus tests (ii) and (iii), or test (iv) and, in the latter case, the accommodation needed must not give rise to a cost, other than a nominal cost, to the respondent. In considering (i) above I am satisfied that the complainant has a disability. I am also satisfied that she was subject to specific treatment in that she was dissatisfied with the services being provided and when she expressed this to Mr. Shemeld's office it was perceived as a compliant against her GP resulting in her having to find another GP. This satisfies (ii) above.
The next matter for consideration is whether the complainant was treated less favourably as at (iii) above. The complainant, in written submissions to the Tribunal outlined a long history of her dealings with a number of hospitals, consultants and GP in different areas of the country over a long period of time. However, it should be noted that the only respondent named in this complaint is the HSE-Southern Health Board and the other matters raised by the complainant against named hospitals, doctors and consultants who not party to these proceedings are inadmissible. It should also be noted that the complainant's representative and carer told the Tribunal at the hearing that the matters complained about before the Tribunal related to a period from July to September 2005. Therefore I am going to examine this period.
4.4 The first matter I am going to examine relates to the report made to the doctor following a telephone call by the complainant's carer to Ms Barrett. The respondent's submission on this point is that they followed the procedures they usually follow when they receive a complaint from a patient concerning a doctor with whom they have a contract to provide a service. The complainant and the carer denied that they made a complaint about the GP. The carer did say that he told Ms. Barrett that the GP was slow to act. Ms. Barrett stated in evidence that she made a record of the conversation and she believed that there was a complaint about the GP. I am satisfied that the carer expressed views about the care being provided by the GP and the medical tests she had carried out and it was not inappropriate for Ms. Barrett to interpret this conversation as a complaint about the GP. The respondent having received the complaint made the GP aware of it and gave her an opportunity to respond. As a result the GP, under Section 9 of her contract (Form of Agreement with Registered Medical Practitioner for Provision of Services under Section 58 of the Health Act 1970) with the respondent, exercised her right and requested the HSE to discontinue the complainant as a patient with her. Under the contract the respondent has to inform the patient of the GP's decision and advise him/her to seek another GP. In the event of a patient not being able to get another GP the respondent assigns the patient to another GP on the list. The respondent informed the complainant on 6th September 2006 of the decision of her GP and enclosed a form to be completed by herself and her new doctor. They also advised her she would remain with her present GP until she was officially transferred to a new one.
I am satisfied on the evidence that this is the practice the HSE followed in this case. The GP requested that the complainant be removed from her list following the complaint made by the complainant. The complainant submitted that this was discriminatory in that it took her 2 months to get a new GP. The respondent submitted that the GP continued to treat the complainant until she got a different GP. I am satisfied that the complainant did not provide any evidence to support her contention that this was a deviation from the normal practice of the HSE. Likewise I am satisfied that the complainant has not established that she was treated less favourably than a person who has not got a disability or a person with a different disability. I find that the complainant was not discriminated against when the respondent made the complainant's GP aware of the dissatisfaction the complainant's carer expressed to them on behalf of the complainant.
4.5 I am now going to examine the evidence to evaluate if the respondent "did all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities" to enable her to avail of a service. The services the complainant was looking for when her carer contacted Mr. Shemeld on 11 and 14th July 2005 included assistance with her care and a proper medical diagnosis for her injuries. Following receipt of the telephone calls, Mr. Shemeld, Care Group Co-Coordinator Physical and Sensory Disability Services, immediately undertook to contact the relevant services including the HSE Community Services, who were already providing services to the complainant, for a report. Mr. Shemeld was seeking to coordinate all the services already being provided to the complainant and to make an assessment of her needs. The Public Health Nurse, the Community Physiotherapist and the Community Occupational Therapist all visited the complainant to carry out an assessment of her needs. Following receipt of the report from the public health nurse Mr. Shemeld wrote to the complainant stating that he was following up on her application for a personal assistant, that the physiotherapist had assessed her needs and would be prescribing a series of exercises for her, that the occupational therapist was investigating making the shower more accessible and that he was looking into the possibility of respite care.
4.6 The complainant in evidence stated that she was happy with the service provided by the occupational therapist. She said she was unhappy with the service provided by the public health nurse as she rarely visited her. She said that her visits became more frequent after she complained. She was also unhappy with the physiotherapist. She was being put through exercises without a proper medical diagnosis of her illness and she objected to this.
4.7 I am satisfied that the complainant had frequent visits from the public health nurse from June 2004 onwards. It is also clear that the complainant did not always welcome these visits. I am also satisfied that the physiotherapist visited the complainant and assessed her needs and drew up an exercise plan for her which the complainant refused on the basis her condition was not properly diagnosed. The complainant agreed at the hearing that she had been referred to consultants at the Cork University Hospital and had received a number of diagnoses in relation to her illness but disagreed with them. The complainant was also offered respite care and in evidence the complainant said that she did not wish to avail of this service. The respondent also said in evidence that the complainant refused an offer of home help on two occasions. The complainant was asked to give permission to the respondent to contact her GP and the South Infirmary Hospital, as the complainant was an inpatient there, so that all the services being offered to her could be coordinated. This hospital is not within the remit of the HSE. The permission was not forthcoming. I am satisfied that the complainant was offered a number of services by the respondent which for her own reasons did not accept. I find therefore that the respondent did all that was reasonable to accommodate the needs of the complainant and did not discriminate contrary to section 4 of the Equal Status Acts 2000-2004.
5. Decision
5.1 On the basis of the foregoing I find that the complainant was not discriminated against by the respondent, Health Service Executive Southern Area, on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and 4(1) of the Equal Status Acts, 2000-2004 and contrary to and 5(1) of that Act.
___________________
Marian Duffy
Equality Officer
20th December, 2007