A Complainant
(Represented by Friend)
V
A Doctor
(Represented by a Mr. Eamon Harrington, Comyn Kelleher Tobin Solicitors)
1. Dispute
1.1 The complainant alleges that she was discriminated against by the respondent doctor who was her GP, on the disability ground contrary to the terms of the Equal Status Acts, 2000-2004. She is alleging that the respondent removed her from her panel of patients without good and sufficient reason.
2.1 Summary of the Complainant's Submission
The complainant is a wheelchair user. She stated that she was a patient of the respondent doctor from July 2004 to September 2005. On the 1st September 2005 her carer telephoned the respondent to renew her prescription. The respondent informed her that she had received a letter from the HSE, Southern Area to say that the complainant and her carer had complained about her and that she had requested the HSE to strike both of them from her patient list. The complainant arranged an appointment with the doctor to discuss the issue and this meeting took place on 7th September 2005. The complainant said that she never complained the doctor to the HSE. The doctor showed her a letter she had received from the HSE Southern Area Primary Care Unit. The letter indicated that the complainant's carer had made the complaint. Both the complainant and her carer said that they made no complaint and they requested the doctor to reconsider her decision but she refused. The complainant said that overall the respondent doctor was a very good GP and she had no difficulty in getting prescriptions for medication. However the complainant said that it was difficult to convince her to refer her for tests. She accepted that her carer did complain about why it took so long for tests to be carried out. The complainant submitted that she was discriminated against on the disability ground when the respondent removed her from the patient list without giving her a chance to give her side of the story. She is also alleging that she was victimised. The complainant denied that her carer was aggressive towards the respondent at the meeting on 7th September 2005.
3. Respondent's Case
3.1 The respondent stated that she has a number of patients on her list who use wheelchairs. She said that she was aware that the complainant was a wheelchair user when she accepted her on to the list. She said that she referred the complainant to the hospital for a number of tests and she was satisfied that the complainant's illnesses were fully investigated. She said that she was shocked when she received the letter from the HSE to say that the complainant had made complaints about the medical care that she (the respondent) had provided. The respondent said that she exercised her right under her contract with the HSE to request that the complainant be removed from her panel. She said that she asked the GMS service of the HSE to assign the complainant to another doctor. She said that it is important in a doctor patient relationship that the patient has full confidence in his/her doctor. Once she was informed by the HSE that the complainant and her carer were not happy about the treatment and diagnosis she was satisfied that the complainant had no longer full confidence in her and that there was a breakdown in the relationship. This was the reason she asked the HSE to put the complainant on another doctor's panel. She said that the complainant remained her patient until she found another doctor. There was never any question of leaving the complainant without a doctor.
3.3 In relation to the complainant's complaint that she had not been diagnosed or that she was slow to refer her for tests, the respondent stated that she saw the complainant on about eleven occasions from 2nd July 2004 until September 2005. She submitted evidence of the fact that she referred the complainant for various tests to at least 3 different consultants. These tests were carried out and the consultants reported back to the respondent. The respondent also stated that she carried out tests for her in her surgery. She said that she is satisfied that the complainant was fully examined and treated by her.
3.4 Mr. Donal Murphy Administrator in the Primary Care Unit of the HSE said that he received the complaint about the respondent and sent it to her for her comments. This is in line with normal practice. In response the respondent requested that the complainant be removed from her panel as is her right under her contract. He said that under the GMS scheme, which has operated for over 30 years, the patient has a choice of doctor. Under paragraph 9 of the contract doctors also have the right to discontinue the acceptance of a person on their GMS list. The patient usually chooses the doctor but if they have difficulty a doctor is assigned the patient.
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. The complainant is also alleging victimisation under section 3(2)(j) of the 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, 2000-2004, for the complainant's needs as a person with a disability, which made it impossible or unduly difficult for her to get a service?
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 the respondent requested her removal from her GMS list. This satisfies (ii) above.
The next matter for consideration is whether the complainant was treated less favourably as at (iii) above.
4.4 The respondent doctor received a letter from the HSE outlining a complaint that the complaint's carer made about her to the HSE. Mr. Murphy from the HSE in his letter to the respondent asked for her comments. The GP did not comment but requested that the complainant should be removed from her GMS list. She submits that she is entitled under paragraph 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 HSE to do this. The complainant was informed and procedures were put in place for her to choose another doctor under the GMS scheme. The complainant submitted that the doctor discriminated against her contrary to the Act. I am satisfied that the reason the doctor requested the HSE to remove the complainant from her GMS list was because she had made a complaint. The respondent doctor submitted that once she became aware of the complaint she was of the view that the doctor/patient relationship had been undermined and the complainant no longer had confidence in her. The complainant has provided no evidence to support her view that the doctor came to this conclusion for discriminatory reasons. The complainant denied that she complained about the respondent to the HSE. However she did admit that she complained about the doctor not carrying out tests. Therefore I am satisfied that a complaint had been made and this was the only reason the respondent discontinued accepting the complainant as a patient. From the evidence it would appear that the complainant was not satisfied with the medical diagnosis she received and requested further tests and it was in this context that the complaint was made.
4.5 I find that no evidence has been provided by the complainant to establish that she was treated less favourably than a person who has not got a disability or a person with a different disability. I find therefore that the complainant has failed to establish a prima facie case of discriminatory treatment. Likewise I find that the complainant was not victimised contrary to section 3(2)(j) of the Act in that she had not applied for a determination under the Act at the time the respondent requested her removal from the list.
4.6 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 that complainant was looking for was access to a doctor for the diagnosis and treatment of her medical condition. I am satisfied that the complainant had access to the respondent doctor and was seen by her on eleven occasions during the relevant period and she also referred her for diagnosis and tests to a number of different consultants When the respondent discontinued with the complainant as a patient, she continued to provide her with a medical service up until the time she was accepted by another doctor. 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, on the disability ground in terms of Sections 3(1)(a), 3(2)(g), 3(2)(j) and 4(1) of the Equal Status Acts, 2000-2004 and contrary to Section and 5(1) of that Act.
___________________
Marian Duffy
Equality Officer
20th December, 2007