Mr Dermot Walsh
Vs
Health Service Executive
Keywords
Equal status Acts 2000 to 2004 - Discrimination, section 3(1) - Disability ground, section 3(2)(g) - Reasonable accommodation, section 4(1) – Positive action, section 5(2)(h) - dental health care
1. Delegation under the Equal Status Act 2000 to 2004
1.1. Mr Dermot Walsh referred a claim to the Director of the Equality Tribunal under the Equal Status Acts 2000 to 2004. In accordance with her powers under section 75 of the Employment Equality Act, 1998, the Director then delegated the case to me, Tara Coogan, 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 Act.
2. Dispute
2.1. The complaint concerns an on-going issue between the complainant, Mr Walsh, and the Health Service Executive (HSE) in relation to what Mr Walsh asserts as the HSE’s failure to address his needs as a person with a disability. While the current conflict stems from late 2000, Mr Walsh asserts for the purposes of the above Acts that HSE discriminated against him contrary to the provisions of the Equal Status Acts 2000 to 2004 on 7 October 2004 when the then Customer Services, Information and Appeals[1] office wrote to him rejecting his grounds for an appeal in relation to the manner in which he was offered dental treatment.
3. Case for the complainant
3.1. Mr Walsh, a disability consultant/trainer, is a person with a disability. He maintains that the HSE is refusing to meet his needs in relation to a dental treatment that he requires. Mr Walsh argues that the HSE is a bully and contends that the only reason why his case has been ongoing for so long is because the HSE’s Dental Services has failed to accommodate his business commitments in any way. This failure, Mr Walsh argues, is manifest in the HSE’s insistence that he attend a dentist either on a Monday, Tuesday or a Thursday while he has informed them that it only suits him to attend a dentist on a Friday. The reason for this is that it would cause least disruption to his professional commitments, as it would allow him to recuperate over the weekend. Mr Walsh is self-employed and does not get paid when he is out of work.
3.2. Mr Walsh further argues that he has staffing issues. He is dependant on the personal assistance he receives. His personal assistant (PA) commences work at 8.30 am and these hours can only be extended by his request. Mr Walsh only wishes to request exceptional hours from his PA to accommodate his business endeavours and for holidays. This, he maintains, is his right.
3.3. Mr Walsh argues that the HSE is only concerned about its staff and has not once considered:
i. Mr Walsh;
ii. His mother, an older person;
iii. His PA, consideration to them and to his allocated hours;
iv. His professional commitments;
v. His safety as he would have to be driven home by his PA after he has received a general anaesthetic. Mr Walsh maintains that he could not instruct his PA after such an procedure and that he is not comfortable with the PA being in charge of Mr Walsh’s vehicle without him being able to issue required instructions;
vi. The fact that the HSE insists that certain tests be carried out before the general anaesthetic means that further interruption is caused to Mr Walsh’s business commitments and that further PA hours will be used up;
vii. The dentist had made contact with Mr Walsh’s GP without Mr Walsh’s consent;
viii. Mr Walsh submits that the fact that the Paediatric Dental Services are run concurrently with the dental health services for people with disabilities. This is an indication, he argues, that the HSE sees people with disabilities as infantile.
ix. The language used in the some of the correspondence that Mr Walsh had received from the HSE. Mr Walsh does not accept that ‘special needs’ is an appropriate term when discussing the needs of people with disabilities.
3.4. Mr Walsh argues that the approach the Dental Services have adopted in relation to his treatment is contrary to the person-centred approach. Mr Walsh understands ‘person-centred’ to mean that the service should suit the needs of the person with a disability.
3.5. He also argues that very existence of a General Anaesthetic Service for people with disabilities itself is unequal. Mr Walsh believes that he should be able to access mainstream services.
3.6. Further, Mr Walsh asserts that the HSE’s justification of the fact that a person needs to be at the hospital at a given time in the morning in order for the patient to be assessed is simply because the HSE is making life easier for itself.
3.7. Mr Walsh is also critical of the staggered appointment system. He feels that the HSE’s justification of why the service is delivered in this way is not good enough reason for leaving people with disabilities sitting around for hours. He is particularly concerned how inappropriate this is for people with intellectual difficulties.
3.8. The fact that the HSE offered Mr Walsh the opportunity to go to another hospital for the treatment after he had stated his inability to attend on a Tuesday (the only day available in the first hospital), allowing Mr Walsh the choice of having his treatment on a Monday or a Thursday, is further evidence, he argues, of discriminatory treatment. Mr Walsh had made it clear that he wished to been seen on a Friday as he is a self-employed, professional person with a busy work schedule.
3.9. Mr Walsh claims that the HSE should be able to offer him the treatment he requires in another hospital. He does not accept that the fact that they are voluntary hospitals, and thus not managed by the HSE, is good enough reason for this. Mr Walsh argues that the HSE indirectly funds them and, therefore, should be able to offer him services there.
3.10. Mr Walsh does not accept that there is a genuine reason for him to have to attend the hospital for what would effectively be the whole day. It will be a long day for him and his PA and will affect his allocated PA hours. Mr Walsh admits that he gets nervous waiting around hospitals.
3.11. Mr Walsh also wishes to point out that the fact that he has a disability has made it more difficult for him to obtain the type of services he would prefer. This, he argues, is because of financial constraints.
4. Case for the Respondent
4.1. The respondent is responsible for providing Health and Personal Social Services for everyone living in Ireland. The HSE’s objectives are outlined in the Health Act, 2004 which instructs the HSE to use the resources available to it in the most beneficial, effective and efficient manner to improve, promote and protect the health and welfare of the public.
4.2. The HSE maintains that it has offered valid reason as to why the treatment cannot be offered exactly as Mr Walsh wants. The Principal Dental Surgeon of the Dental Service wrote to Mr Walsh 7 April 2003 outlining the reasons that:
i. It was not possible to offer Mr Walsh a Friday appointment;
ii. There are valid reasons why there is a need for an early commencement of a general anaesthetic session (8 am);
iii. It is not possible to supply a structured, specialised service in another hospital of Mr Walsh’s choosing; and
iv. HSE’s Dental Services for Patients with Disabilities is not part of an exclusively children’s service but runs in parallel with Services for Children and also treats children with disabilities.
4.3. The HSE rejects Mr Walsh argument that the HSE only cares for the convenience of its staff. HSE argues that at all times the consideration for Mr Walsh and his needs were paramount in arranging the appointments. The team assembled for the purpose of delivering treatment under general anaesthetic to people with disabilities is put together specifically with that specific aim in mind. This team consists of the following:
· 2 Dentists
· 1 Anaesthetist
· 2 Dental Nurses
· 2 Theatre Nurses
The above service is operating theatre-based and requires the above professionals, specific equipment and logistics. As a result, the service is only available on certain days. For example, the Dental Service only has the use of an Anaesthetist for a set number of hours. At other times s/he will be occupied with another service. The HSE does not provide Dental Services in any voluntary hospitals.
4.4. HSE argues that regardless of the time of day Mr Walsh receives his treatment, the Anaesthetist and the medical team would not discharge Mr Walsh from the hospital until they were satisfied that he had recovered sufficiently from the general anaesthetic. This, HSE claims, means that Mr Walsh would be awake and able to instruct his personal assistant.
4.5. In relation to medical tests required prior to the general anaesthetic, HSE contends that these are necessary for the Anaesthetist to have a full and accurate history of the patient presenting before her/him and to enable the Anaesthetist to make any necessary treatment decisions. It is important for the patient to have these tests carried out close to the procedure as they show the suitability of the proposed treatment. It would be inappropriate for any Anaesthetists to agree to carry out a treatment without having the appropriate, up-to-date information.
4.6. HSE acknowledges that Mr Walsh is not without challenges in accessing care but is of the opinion that if Mr Walsh was willing to take a more flexible approach in relation to his arrangements with his PA, these challenges could be overcome. The HSE has no difficulty in acknowledging that Mr Walsh is a professional, self-employed person. However, the HSE believes that Mr Walsh is using the demands of his professional life to justify his demand for a service tailored to meet his specific circumstances. The HSE appreciates that majority of the population would prefer to have such flexibility in relation their appointment arrangements but maintains that everyone is at times inconvenienced when accessing various types of services in all sorts of circumstances.
4.7. The HSE questions Mr Walsh’s unwillingness to request his PA to be flexible in relation to an early morning start. Would Mr Walsh be as insistent if his work commitments required him to travel early when no other alternative was available?
4.8. The nature of any General Anaesthetic Service requires that protocols are put into place to ensure the safety of patients. The HSE is not in a position, for reasons of safety and logistics, to custom-fit General Anaesthetic Services to meet individual service user timetables.
4.9. The HSE is continuing to develop its Oral Healthcare Services for Patients with Special Needs within available resources.
4.10. The HSE acknowledges Mr Walsh’s role in advocating for patients with disability and will continue to support him in this, whenever possible. The HSE dental services had adopted Mr Walsh’s welcome suggestion regarding a change of wording on one of the patient admitting questionnaires and had amended the relevant document accordingly.
4.11. The HSE sincerely hopes that Mr Walsh would be willing to receive the treatment he is entitled to and in genuine need of in the near future. The HSE has continued to offer Mr Walsh a number of appointments subsequent to the correspondence now before the Equality Tribunal. None of these have been acceptable to Mr Walsh. His early commencement time has been also moved to 9.15 am. The HSE asserts that it will continue to offer Mr Walsh its services in its Dental Services on a mutually convenient date.
5. Conclusions of the Equality Officer
5.1. The complainant, Mr Walsh, is a person with a disability. For the purposes of his complaint he needs to establish that he was treated less favourably than another person without a disability is, had been or would have been treated in a comparable situation for a prima facie case to arise.
5.2. As Mr Walsh has been offered dental treatment the situation of less favourable treatment does not arise. Mr Walsh also complained about the fact that he had to avail of Disability Services when obtaining dental care. Section 5(2)(h) of the Acts allows for positive action:
“Differences in the treatment of persons in a category of persons in respect of services that are provided for the principal purpose of promoting, for a bona fide purpose and in a bona fide manner, the special interests of persons in that category to the extent that the differences in treatment are reasonably necessary to promote those special interests”.
It is important to note that while differential treatment is permitted for legitimate reasons, this should not be construed as the Acts sanctioning less favourable treatment. This means that in the above context only less favourable treatment - not just different treatment - can be viewed as discriminatory.
5.3. In addition, section 4(1) of the Equal Status Acts 2000-2004 defines discrimination on the ground of disability to include “a 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 treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service”.
5.4. In order for the complainant to establish that the respondents have failed to provide him with reasonable accommodation the Tribunal needs to be satisfied that the person genuinely needs special facilities or adjustments without which it would be impossible or unduly difficult for Mr Walsh to avail of the service. These facilities and/or adjustments must be justified with reference to Mr Walsh’s disability. I would like to point out that in making my decision I have taken cognisance of the fact that the treatment/service offered to Mr Walsh is a once-off situation. The HSE are asking Mr Walsh to attend a hospital – all going according to plan – for one day.
5.5. Mr Walsh was unable give any answer explaining why because of his disability he could not attend the service on a Friday. Nor did he give any reason linked to his disability as to why he could not attend in the morning. Mr Walsh stated that he was having some staffing issues in relation to his PAs and that he would prefer not to ask a PA to start so early in the morning. While the PA hours are paid for by the HSE, via the Irish Wheelchair Association, Mr Walsh is the employer and manager. Mr Walsh has an allocation of 70 PA hours a week.
5.6. While I accept that Mr Walsh is highly dependant on his PA hours I do not accept it is impossible or unduly difficult for Mr Walsh to allocate one day’s allowance for his health care. PA hours are designed to enable the person with a disability to achieve maximum independence in his/her daily living by providing assistance in all areas of personal and domestic need and by acting as an escort and aide in the social and day-to-day activities. The role is dependant on the particular needs of the person being assisted and a certain degree of flexibility is a requirement of the PA job. I believe that Mr Walsh could, if he so wished, request that his PA start his/her day earlier on the day of his treatment.
5.7. The above is further supported by the fact that Mr Walsh did indicate at the hearing when questioned that he could use his allocated PA hours in a flexible manner. He had, for example, used up more than an average daily allowance (10 hours) when travelling for business. He did point out that he tried to limit this as much as possible as it left him in a situation where he would have to cope with fewer PA hours on another day.
5.8. Mr Walsh also indicated at the hearing that the fact that he is a person with a disability has economically disadvantaged him and without his disability he would be in a better position to avail of the type of services he would prefer. This argument goes beyond the scope of the powers afforded to this Tribunal and is therefore ultra vires.
5.9. I believe that the HSE has been quite flexible in trying to meet the complainant’s requests within the confines of their responsibilities in meeting the patient’s health and safety requirements and in the broader organisational context. Oral submissions to this effect where given by two Dentists at the hearing. It is clear from these that it would be impossible for the treatment to be carried out in any other way without risking patient safety.
5.10. Mr Walsh also raised the question of language used by the HSE in their patient admittance forms. He particularly rejects the use of ‘special needs’ when talking about disability. While the question of language is pivotal to the wider equality debate, it cannot be seen as discriminatory to inquire about disability related needs when they play an important role in patient welfare. It would be inappropriate of any health service provider not to take cognisance of these needs when determining a treatment pathway. Disability is a normal part of the human existence and to pretend that it does not exist in situations where it matters is dangerous and potentially discriminatory. The Equal Status Acts 2000 to 2004 uses the term “special needs” in section 14(1)(b)(ii) in a context that could include disability. Even section 4 refers to “needs” and the “special treatment or facilities” to accommodate those needs. As the disability debate continues the language associated with it will evolve appropriately. This means that at times language will appear as antiquated particularly to people like Mr Walsh who has developed expertise in the field. The HSE has taken on board some of the recommendations for terminology updates submitted by Mr Walsh and appear to be open to amending their forms as required.
6. Decision
6.1. The complainant has failed to establish a prima facie of discrimination. Therefore, I find in favour of the respondent.
_____________
Tara Coogan
Equality Officer
19 February 2008