The Equality Tribunal

3 Clonmel Street

Dublin2.

Phone:  353 -1- 4774100

Fax: 353-1- 4774141

E-mail: info@equalitytribunal.ie

Website: www.equalitytribunal.ie

Equal Status Acts 2000 to 2008

EQUALITY OFFICER’S DECISION

NO:  DEC-S2009-057

A patient

(Represented by the Equality Authority)

v.

The Mater Misericordiae University Hospital

(Represented by Ms. Siobhain Phelan BL on the instructions of Mason Curran and Hayes Solicitors)

File No. ES/2006/0159

Date of Issue:  25 August 2009

DEC-2009-057 - ES/2006/0159

Keywords

Equal Status Acts 2000 to 2004 – Discrimination, section 3(1) – Disability ground, section 3(2)(g) – Disposal of goods and provision of services, section 5(1) – Reasonable accommodation, section 4(1) – Vicarious liability, section 42(1) - Other non-discriminatory activities, section 16(2)(a)

1.   Delegation under the Equal Status Acts

A Patient referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 1 December 2006.  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 on 29 July 2008. A hearing was arranged for 11 December 2008. The Director granted the complainant an adjournment on 15 August 2008. The hearing was rescheduled and held on 8 January 2009. Final submission date was set as 31 March 2009.

2.     Dispute

The dispute concerns a complaint by A Patient (“the complainant”) that she was treated less favourably in relation to the provision of goods and services on the ground of her disability contrary to sections 3 and 4 of the Equal Status Acts between 9 August and 14 September 2006 by the Mater Misericordiae University Hospital (“the respondent”). The complainant was denied access to a wheelchair accessible toilet and shower during the period of her stay in the hospital. The respondent was notified on 26 November 2006.

3.     Case for the Complainant

3.1. The complainant suffers from multiple sclerosis and is a wheelchair user. She submitted that she was admitted to hospital on 9 August suffering with pneumonia and pleurisy. On her admission to the hospital the complainant was fitted with a catheter. This, she submitted, was due to be removed as soon as the complainant’s health improved. She remained in hospital for a period of 37 days. It was submitted that due to the fact that there were no accessible toilets available for the complainant, the catheter was left on for the duration of her stay. The complainant submits that this was despite the fact that a doctor on her neurology team advised that it should be removed.

3.2. The complainant submitted that while her room had an en-suite bathroom she was unable to use it due to space and other limitations. She approached a member of staff and enquired about wheelchair accessible toilets. She submitted that she was shown a toilet in the corridor of the ward but upon inspection she discovered that the door was locked and a notice stating "staff only" was on the door. She submitted that the staff member opened the door for her and showed her the toilet. She submitted that she observed that it would not have been fully accessible as there were no handrails and the toilet bowl was not at the required height. She further submitted that in order to access the toilet a code needed to be inserted into a keypad which was located at the approximate eye level of an ambulatory person.  

3.3. The complainant submitted that a nurse offered her nappies as an alternative to the catheter. The complainant submitted that she declined this offer.

3.4. The complainant further submitted that she was informed that there was accessible toilets on the ground floor. She stated that due to bladder weakness it was not possible for her at avail of this toilet as the commute from the fifth floor was  coupled with a lengthy concourse. She further stated that she found out later on that these toilets were closed in the evenings.

3.5. The complainant further attended the hospital as an out-patient between 18-22 September 2006. During this time, she submitted that she discovered another accessible toilet had been decommissioned and allocated to staff use only.

3.6. The complainant further submitted that she signed herself out of the hospital one weekend just so that she could go home and have a proper shower. This, she submitted, was because the ward had no accessible shower for her to use and, despite a number of requests for assistance on this matter, the staff told her they would get to her later on. This, the complainant submitted, never happened. She stated that she had to wash herself using a cloth and a sink and that she had little shelter when it came to her modesty.

3.7. The complainant's representative submitted that the legal duty to accommodate people with disabilities can only be rebutted if a nominal cost defence can be made. The complainant's representative cited Canadian Supreme Court in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] 3 S.C.R. 868 and as well as A Health and A Fitness Club and A Worker (EED037), An Employee and A Local Authority (DEC-E2002-004). Further, it was submitted that the nominal cost exemption must be considered in line with an organisation's overall budget in accordance with Ms D (A Tenant) v. A Local Authority (DEC-S2007-057).[1]

4. Case for the Respondent

4.1.  The respondent is a company, limited by guarantee, incorporated on 1st January 2002. It is a charitable voluntary hospital established by the Sisters of Mercy in 1861. The respondent is city centre hospital  providing a wide range of secondary and tertiary referral services to patients inside and outside its catchment area.  The respondent hospital has 603 beds and employs in excess of 2620 staff. The hospital activity is almost exclusively funded by the Health Service Executive, with whom the respondent works closely on the maintenance, delivery and development of services. It was submitted that the respondent is subject to strict budget constraints. 

4.2. The respondent acknowledges and regrets that due to unauthorised actions of staff, the existing wheelchair accessible toilet of Our Lady’s Ward was placed beyond patient use at the time of the incident. The respondent accepts that where these facilities exist and have been designated by the hospital for disabled access, they should be available for patient use and that the occasion of her admission in 2006, they were not available to the complainant. The respondent submits that they have taken a serious view of these actions and a directive has been issued to all staff making it clear that such facilities are reserved for disabled patients. It was submitted that a decision has been taken that any repeat of such unauthorised activity by staff members will be treated as a disciplinary matter.

4.3. The respondent is committed to responding appropriately where possible to concerns raised in relation to disabled access in the hospital. It was submitted that to this end a Committee was established in or about 2004 to review facilities and make recommendations in relation to disabled facilities. The respondent submitted that it ensures that new facilities meet the required standards. It was submitted that the ward where the complainant was a patient at the material time, is in Phase 1A of the building which is over 20 years old and constructed to the standards of the time.

4.4. The respondent further submitted that in addition to the steps taken to ensure that existing disabled access facilities are not placed beyond patient use, it has taken and continues to take steps to render more accessible, where possible, its existing facilities. For example, where handrails are absent in wheelchair accessible toilets, they have been fitted. It was submitted that all new projects under development by the hospital have facilities which are fully wheelchair accessible. The respondent confirms that the toilet on Our Lady's Ward is now fully wheelchair accessible with the appropriate signage and hand rails in situ. It was submitted that the said toilet does not meet the current (planning) legislation in relation to high measurements. It was submitted that there would be significant costs to the respondent if it was to alter the bowl high due to infrastructural limitations relating to the buildings existing plumbing. It was submitted that the plumbing would have to be changed significantly to allow for such changes.

4.5. The respondent submitted that it is acknowledged and regretted that not all of the hospital's facilities are so accessible. It was acknowledged that the toilets and the shower cubicle in the shared hospital room where the complainant was a patient is not wheelchair accessible. The respondent also regrets that the in-room facilities are not suitable for conversion to wheelchair access due to structural limitations. While there are wheelchair accessible shower facilities in some wards and departments in the hospital, it was submitted that there are medical reasons why these facilities are not available for free and open use by patients coming from other parts of the hospital. In relation to shower access for wheelchair users, in the absence of wheelchair accessible showers, the practice is that all immobile patients are showered using a hoist.

4.6. It was submitted that the respondent regrets that there is little that can be done by the hospital with its current capacity problems to address this deficit. It was submitted, however, that a major development plan is underway in the hospital with the aim of providing 120 new/replacement beds in a new hospital complex by 2011. It was submitted that these facilities will be fully accessible when completed and all future projects will be fully wheelchair accessible. The respondent stated that realistically, however, existing inaccessible facilities will be required for use and there is little scope to make these facilities fully accessible due to structural constraints and capacity problems.

4.7. These capacity restraints, the respondent submitted, are likely to mean that it will be necessary for the hospital to admit wheelchair users to wards with appropriate medical specialisation as and when beds become available rather than their sole criterion of accessibility. It was further submitted that, on admission to hospital, all patients receive a care plan that is developed for each patient. It was submitted that where accessibility issues arise, specific attention is addressed to how facilities in the hospital can be made more accessible for this patient.    

4.8. It was also submitted that the respondent is currently developing plans to establish a patient user group to help the respondent identify ways in which patient accessibility might be better addressed. 

4.9. The respondent submitted that in relation to the facilities on the concourse level, it is the case that while there has been two disabled access toilets available for public use, the hospital has been forced to reduce this to one. This, it was submitted, is because staff working in the public canteen at this level are required by law to have separate toilet facilities without which the canteen could not operate. It was considered that the appropriate balance in meeting the needs of all persons using the or visiting the hospital would be met by one wheelchair accessible toilet for public use at this level with the other toilet being used by canteen staff thereby enabling the canteen to operate. 

4.10. The respondent submitted that in light of steps taken by the respondent to ensure that there is no further recurrence of the events of 2006 whereby the disabled toilets were placed beyond the access to patients, it respectfully submits that there is no lawful basis for the making of any further order in this case and the Tribunal should decline to do so.

5. Conclusion of equality officer

5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which she can rely in asserting the she suffered discriminatory treatment. 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.

5.2. In making my decision I have taken cognisance of both written and oral submissions.

5.3. I am satisfied that the differential treatment provided to the complainant does not fall within the meaning of section 16(2)(a). I find that the complainant did not receive differential treatment in the exercise of clinical judgment.

5.4. I note that the facts of this case are not in dispute. I note that the respondent accepts that the wheelchair accessible toilet of Our Lady’s Ward was placed beyond patient use at the time of the incident. I also note that the respondent acknowledges that special facilities should be available for patient use and that on the occasion of the complainant's admission to the hospital in 2006, they were not available to the complainant.

5.5. I note that it was submitted that the complainant did receive a service in that she was in hospital to have her medical needs addressed and that these medical needs were indeed addressed during her stay. It was submitted that almost by definition every person who is admitted to hospital suffers from a disability and the function of the hospital is to provide medical services for all such patients. Therefore, the respondent submitted, it follows that there is no intention to exclude disabled persons from accessing services at the hospital and, accordingly, no breach of section 3(1) and 5(1) arose. I agree with this interpretation. The complainant did receive treatment for her presenting medical condition and in this sense was treated like any other person presenting for services in respect of the illness in question. It is clear that this complaint is not about the quality of medical care that the complainant received during her stay in the hospital.

5.6.  Having considered the facts of this case it is clear that the complainant was treated less favourably on the ground of her disability contrary to section 4(1) and 5(1). It is obvious that she required special assistance and/or facilities in order for her to avail of the ward's toileting and bathing facilities. I am satisfied that the complainant articulated this need to the respondent's employees and sought special assistance. I also note that the respondent as a health care provider is uniquely placed to have extensive experience in such matters

5.7. It is clear from the evidence that the complainant was not offered any special assistance. I do not accept that a catheter nor nappies, in the circumstances of this case, can be seen as special treatment within the meaning of section 4(1).  It is clear that by providing the complainant no other alternative but to wear a catheter in these circumstances constitutes less favourable treatment in that it caused the complainant serious stress and, based on what her doctor told her, posed a treat to her health. The complainant submitted that her own doctor had recommended that the catheter be removed. I note that the complainant's medical records do not show any concerns about hygiene issues. They clearly indicate that the catheter was removed on the day she was discharged from the hospital. On the balance of probabilities, I accept that the complainant did request to have the catheter removed but in view of the fact that there were no accessible facilities available the catheter was left in place.

5.8. In relation to the accessible toilet that was available to the complainant on the ground floor during her in-patient stay. It is clear that expecting a person with a disability to commute lengthy distances (where a person without that disability would not have to do so) in order to simply use a toilet is to be construed as less favourable treatment in accordance with section 4(1).

5.9. I have been presented with no explanation as to why the complainant was not offered special assistance by the hospital staff re her bathing needs after she was able to be up and about. It is clear from her medical records that the complainant did receive bed baths while confined to bed. And it is clear that her records show sporadic references to assistance with bedside washing after she was able to be up and about. Regardless of this, I am satisfied that the staff were uniquely placed to appreciate that the complainant would have required further assistance. I also accept in any case that the complainant had requested such assistance thus clearly placing to onus onto the respondent to provide such assistance. I note that the hospital does not have many accessible showers and that there are for example health and safety issues about movement between wards, etc. I also note that the respondent submitted that each ward has two hoists for individuals who require assistance. I find that this means that the hospital was in a position to offer the complainant special assistance that would have enabled her to have a shower. In such circumstances, where special facilities would have been available but were not provided to the complainant, section 4(2) defences are moot.

5.10. It is important that providers of goods and services, accommodation and education appreciate that simple compliance with building regulations may not be a defence in relation to a situation concerning reasonable accommodation as defined by section 4(1) for a person with a disability. It is not for this Tribunal to assess whether providers of goods and services comply with planning regulations. Section 4(1) imposes a positive duty on providers of goods and services to do all that is reasonable to ensure that in situations where, because of this disability, a person with a disability finds it impossible or unduly difficult to avail of a service to provide special services and/or facilities to alleviate the difficulty. It is clear from the evidence presented to me that, in the circumstances of this case, the complainant did find it unduly difficult or impossible to avail of some aspects of the service during her stay. Further, I find that the complainant was not offered reasonable accommodation. It was submitted that the respondent does have a number of accessible toilets. I also note that it was submitted by the complainant that the accessible toilet that the complainant inspected would not have met the special needs of the complainant due to its structural limitations. The issue that is of relevance to this investigation is that due to the fact that this accessible toilet was locked and used for storage, the complainant was not in a position to use the facility with additional assistance.

5.11. I note that the respondent submitted that the complainant had extended her complaint from her own experiences during her stay to a more general complaint about accessibility in the hospital. It is clear that this Tribunal's jurisdiction only extends to the experiences of the complainant herself, not to that of people with disabilities in general. It was further submitted by the respondent that despite the best endeavours of the hospital it is not always possible to have all facilities in the hospital adapted so that they are fully accessible. The respondent stated that this is not because the respondent has an intention to treat wheelchair users less favourably than persons who are non-wheelchair users but because of the budgetary and capacity constraints which dictate the provision of services from the hospital premises in question and the facilities in this regard. The respondent submitted that this fact - not having all facilities accessible - cannot be construed as a failure to comply with section 4(1). It was submitted that there is no legal requirement on the hospital in the delivery of medical services to provide only fully wheelchair accessible toilets and showers throughout the hospital where the hospital premises in question predate modern building requirements. I accept that this is true and agree with the respondent submission that while access to fully accessible toilets and showers is certainly desirable and to be strived for by providers of goods and services, there is no legal requirement under these acts for all services to be so unless it can be shown that absence of such facilities would make it impossible or unduly difficult for the person with a disability to avail of the service.  

5.12. Following from above, the respondent submitted that in light of the steps taken by the respondent to ensure that there is no further recurrence of the events of 2006 whereby the disabled toilets were placed beyond access to the complainant, there is no lawful basis for this Tribunal to make any further order in this case and that this Tribunal should decline to do so. Section 27(B) of the acts, in my reading and application of ordinary, everyday language to it, is intended to ensure that the prohibited conduct which has been found to have occurred in relation to a complainant will not occur again. I note that there was disagreement between the parties concerning the respondent's actions in relation to making the accessible toilets available for the public. While I agree that it is not appropriate for this Tribunal to make an order dictating that the respondent make all of its toilets and showers accessible, it is clear to me having heard all of the facts of this case that the reason why the complainant had to endure less favourable treatment was not simply due to infrastructural deficiencies. I find that this unfortunate situation arose and continued for the complainant's entire stay in the hospital due to the fact that the respondent had omitted to take appropriate steps to ensure that staff did all they could to comply with section 4(1) requirements and to avail of the already existing facilities.  

5.13.  I note that no evidence was presented to the hearing to suggest that the service provider explored any alternatives to the catheter (with the exception of nappies). A service provider who has special facilities in place but who chooses to use these facilities as storage solutions or in order to convenience the staff, whatever the case may be, is clearly in breach of its obligations under section 4(1). A similar situation arises in relation to the showers. The respondent had an obligation to ensure that the complainant was able to avail of a shower during her 37 day stay in the respondent's facility. I note that she received bed baths while she was confined to her bed but as soon as she was no longer so her right to avail of hygiene facilities was neglected by the respondent staff. I note that the complainant understandably would have preferred a shower facility that would have given her privacy and independence. However, a hoist in the circumstances of this case, would have enabled the complainant to take better care of her personal hygiene. While I note that the respondent was not in a position to explain why the complainant's needs where put on the long finger by the staff and I accept that the respondent would not condone such behaviour from its employees, I find that this failure to offer such assistance is a further breach of section 4(1).  As the hospital already had a number of special facilities in place and certainly should have been able to provide assistance through its staff I see no reason to consider section 4(2). While the respondent may not have been able to ensure perfect solutions to the obstacles complicating the complainant's enjoyment of the service, there was absolutely no reason why the complainant had to experience the less favourable treatment that she did.  

6. Decision

6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:

6.2. The complainant has established a prima facie case of discrimination on the ground of disability. The respondent has not rebutted this presumption. In accordance with section 27(A) I am compelled to award the complainant redress. In light of the severity and impact of the unlawful conduct on the complainant I find that €6348.69 (5000 IEP) is the appropriate amount of compensation for the effects of the prohibited conduct. This is the maximum amount allowed for under the Acts. I find that the effect of the respondent's omission in relation to its obligations set out in section 4(1) in the circumstances of this case warrant the maximum redress.

6.3. In accordance with section 27(B) I order the respondent to develop and implement an equal status policy. This policy must allocate responsibility for equal status matters to a senior manager to ensure that all decision-making is informed by the obligations set out in the acts. Information on such a policy can be obtained from the Equality Authority.

6.4. Further, I order the respondent to ensure that accessible toilets are not restricted by keypads/locks and remain reasonably accessible in all wards.  

_____________

Tara Coogan

Equality Officer

25 August 2009