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Equal Status Acts, 2000-2008
Equality Officer Decision
DEC-S2008-112
Mr. X
-v-
Health Service Executive
(Represented by Ms. Michelle Ni Longain, Solicitor,
BCM Hanby Wallace Solicitors)
File Ref: ES/2005/0940
Date of Issue: 2nd December, 2008
Keywords
Equal Status Acts, 2000-2008 - Section 3(1) - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) – Reasonable Accommodation, Section 4(1) - Disposal of Goods and Services, Section 5(1)
Delegation under the Equal Status Acts, 2000 to 2008
This complaint was referred to the Director of the Equality Tribunal on 29th November, 2005 under the Equal Status Acts, 2000 to 2004. On 11th April, 2008, in accordance with her powers under Section 75 of the Employment Equality Act 1998 and under the Equal Status Acts, 2000 to 2004, the Director delegated the complaint to me, Enda Murphy, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 21st October, 2008.
1. Dispute
1.1 The complainant claims that he was discriminated against on the grounds of his disability in terms of Sections 3(1), 3(2)(g) and Section 4 of the Equal Status Acts, 2000 to 2008 and contrary to Section 5(1) of the Equal Status Acts, 2000 to 2008 in that the respondent failed to do all that was reasonable to accommodate his needs as a person with a disability by providing special facilities that would enable him to access the services of a psychologist as part of his treatment for schizophrenia.
2. Summary of the Complainant’s Case
2.1 The complainant was diagnosed as suffering from schizophrenia in December, 2002 at which stage he was referred as a patient to the respondent for treatment for this condition. The complainant’s mother stated in evidence that she became aware that the best practice nationally and internationally for the treatment of schizophrenia involved treatment by a psychologist (and more specifically Cognitive Behaviour Therapy). It is the complainant’s case that he was denied access to a psychologist as part of the treatment for his illness as the medical team that was providing this treatment, on behalf of the respondent, did not have access to the services of a psychologist at that particular time. The complainant claims that he was being denied the most effective means of treatment for his illness and he contended that if he had been suffering from any illness, other than a mental illness, that he would have received the appropriate treatment. The complainant also claims that the particular area of the HSE in which he resides was inadequately funded and he submitted that if he was residing in any other area of the country he would have received the appropriate inclusive treatment for his illness.
2.2 The complainant also claims that he requested the treatment of a psychologist be made available to him under the National Treatment Purchase Fund, however this request was also denied on the basis that mental illnesses were not covered by this scheme. The complainant claims that after a period of intense lobbying the services of a psychologist were eventually made available to him during the summer of 2006 and that he received approx. 10 sessions of Cognitive Behaviour Treatment at that juncture which were of enormous benefit in the treatment of his illness. The complainant stated that he is presently receiving Cognitive Behaviour Therapy on a private basis which has been funded by the respondent, however he claims that he should have been in receipt of this treatment throughout the duration of his illness. The complainant claims that he has been subjected to discrimination on the grounds of his disability on the basis of the respondent’s failure to provide the appropriate treatment for his illness.
3. Summary of the Respondent’s Case
3.1 The respondent submitted that the complainant was initially referred to its Mid-Eastern Sector as a patient in December, 2002 and he began a course of ongoing treatment for schizophrenia at that juncture. The respondent claims that this course of treatment was administered under the supervision of Dr. X, whose initial prognosis was that the complainant’s illness should be treated by way of medication. The respondent accepted that the medical team which was treating the complainant did not have access to the services of a psychologist (as a result of budgetary constraints) at that juncture, however, it submitted that the complainant’s treatment was being administered in accordance with the instructions and prognosis of his medical team. The respondent submitted that it was the clinical judgement of the complainant’s medical team that he did not require treatment by a psychologist (i.e. Cognitive Behaviour Treatment) at that particular juncture.
3.2 The respondent submitted that the complainant’s doctor, Dr. X, initially formed the view in March, 2005 that the complainant may benefit from the treatment of a psychologist and he sought funding in order to obtain private treatment for the complainant by a psychologist as there was not a psychologist available to the medical team that was treating the complainant. The respondent submitted that there was insufficient funding available to obtain private treatment for the complainant at that time, however, the services of a psychologist became available to the complainant’s medical team in January, 2006. The complainant was referred to this clinical psychologist in January, 2006, on the instructions of his medical team, but was unable to commence treatment at that stage due to the deterioration in his medical condition which required that he be hospitalised for a period of time. However, the complainant subsequently commenced a period of treatment in June, 2006 with the psychologist which was available to his medical team, which consisted of twelve separate sessions. The respondent also submitted that the National Treatment Purchase Fund is an independent statutory agency that was established for the purpose of providing faster treatments to patients who have been waiting longest on public hospital in-patient waiting lists for surgery, and it stated that this scheme does not cover treatment for mental illnesses. The respondent submitted that it did not have any role or authority in terms of the manner in which treatment was administered under this scheme.
3.3 The respondent claims that the treatment afforded to the complainant was administered in accordance with the clinical judgement and instructions of his medical team and it totally denies that it has discriminated against the complainant on the grounds of his disability in terms of the treatment that has been provided in order to treat his illness. The respondent stated that the complainant continues to be a patient of the respondent and it submitted that he is receiving ongoing treatment from his medical team in relation to his illness.
4. Conclusions of the Equality Officer
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A of the Equal Status Acts, 2000 to 2008 sets out the burden of proof which applies in a claim of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that prohibited conduct has occurred in relation to him. It is only where such a prima facie case has been established that the onus shifts to the respondent to rebut the inference of discrimination raised. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 In the present case, it was accepted by both parties that the complainant is suffering from schizophrenia and I am therefore satisfied that he is a person with a disability within the meaning of Section 2(1) of the Equal Status Acts, 2000 to 2008. It was also agreed by both parties that the complainant was referred to the respondent as a patient in December, 2002 and that he was in receipt of ongoing care and treatment for his illness, thereafter, under the care of a medical team with administrative responsibility to the respondent. The complainant claims that he was denied access to the services of a psychologist as an integral part of his treatment and he therefore claims that he was subjected to discrimination by the respondent on the grounds of his disability. The respondent denies that it discriminated against the complainant and it claims that the treatment for his illness was administered in accordance with the clinical judgement of the medical team that was providing care for him on its behalf. Therefore, the question that I must decide in the present case is whether the complainant was subjected to less favourable treatment by the respondent on the grounds of his disability in terms of the manner in which the treatment of his illness was administered by the respondent.
4.3 In considering this issue, I have taken cognizance of Section 16(2) of the Equal Status Acts, 2000 to 2008 which provides:
“Treating a person differently does not constitute discrimination where the person -
(a) is so treated solely in the exercise of a clinical judgment in connection
with the diagnosis of illness or his or her medical treatment”
Having regard to the aforementioned provisions of the Equal Status Acts, it is therefore clear that treating a person differently while exercising clinical judgement in connection with that person’s treatment cannot constitute discrimination within the meaning of the legislation. In the present case, the complainant commenced treatment for his illness in December, 2002 and I have noted the evidence of Dr. X, the consultant in charge of the medical team which was administering the complainant’s treatment, that it was not until March, 2005 that he initially formed the view, in the exercise of his clinical judgement, that the complainant may benefit from the treatment of a psychologist (i.e. Cognitive Behaviour Therapy). I note that the medical team which was treating the complainant at this juncture did not have access to the services of a psychologist as a result of budgetary constraints and that a psychologist did not become available to the team until January, 2006. It is therefore clear that there was a period of time between March, 2005 and January, 2006 within which the services of a psychologist was not available to the complainant as part of the ongoing treatment of his illness due to financial constraints and inadequate staffing resources. However, I am satisfied that the inability of the respondent to obtain the services of a psychologist due to financial constraints or inadequate staffing resources was an administrative issue within the respondent organisation and that it does not amount to less favourable treatment of the complainant within the meaning of the Equal Status Acts on the grounds of his disability.
4.4 Having regard to the evidence adduced, I am satisfied that the complainant was referred to a psychologist on the instructions of his medical team, as soon as one became available in January, 2006, albeit that he did not commence this treatment until June, 2006 as a result of a deterioration in his medical condition. In the circumstances, I am satisfied that the manner and method of the medical treatment that was administered to the complainant, as part of the ongoing care of his illness, was carried out in accordance with the clinical judgement of the medical team that were carrying out this treatment on behalf of the respondent. I have not been presented with any evidence from which I could conclude that the manner in which this medical treatment was administered was done so for any reason other than it was deemed necessary and appropriate by his medical team in the exercise of its clinical judgement in connection with the treatment of his illness. Having regard to the provisions of Section 16(2) of the Equal Status Acts, I therefore find that the treatment afforded to the complainant in the present case did not amount to discrimination within the meaning of this legislation. Accordingly, I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.
4.5 I have also noted the complainant has claimed that he requested treatment by a psychologist for his illness under the terms of the National Treatment Purchase Fund and he claims that the respondent refused this request on the basis that the treatment of mental illnesses were not covered by this scheme. In considering this issue, I note that the National Treatment Purchase Fund is an independent statutory agency that was established for the purpose of providing treatment to patients who have been on public hospital waiting lists for surgery. I am satisfied that the named respondent in the present proceedings, namely the Health Service Executive, does not have any role or authority in terms of the manner in which treatment is administered under this scheme and accordingly, I find that I do not have jurisdiction to investigate this matter in the present case.
5. Decision
5.1 In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1), 4(1) and 3(2)(g) of the Equal Status Acts. Accordingly, I find in favour of the respondent in this case.
Enda Murphy
Equality Officer
2nd December, 2008