THE EQUALITY TRIBUNAL
EQUAL STATUS ACTS 2000 to 2008
Decision No. DEC-S2009- 080
PARTIES
Laurence Cronin
(represented by P.J. McCarthy Insurances)
-v-
Health Service Executive
(represented by BCM Hanby Wallace)
File Reference: ES/2007/037
Date of Issue: 16 November 2009
Key words
Equal Status Acts 2000-2004 - Section 3(2)(i), Age ground - Examination for fitness to drive - treatment not less favourable - medical card scheme - no prima facie case
1. Delegation under the relevant legislation
1.1. On 29 March, 2007, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000-2004. On the 21st August, 2008, in accordance with her powers under section 75 of the Employment Equality Act, 1998 and under the Equal Status Acts, the Director delegated the case to me, Gary O'Doherty, 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, 2000-2004, on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Cork on Tuesday, 28th July, 2009. Both parties were in attendance at the hearing. Further information was requested from and provided by both parties and final correspondence in this regard was received on 10th September, 2009.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the age ground contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Section 3(2)(f) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably on the age ground on 19 October 2006 by requiring him to pay for a service (i.e. obtaining an examination in relation to fitness to drive) while in receipt of a medical card, that someone of a different age was not required to pay for.
3. Summary of the Complainant's case
3.1. The complainant stated that, on 19 October, 2006, he went to his GP to obtain a medical report that was required in order to have his driving licence renewed. He stated that, even though he had a medical card, he was asked to pay €40 for the report in question. He said that he objected to this on the spot when requested for the money at the doctor's office, but paid it nonetheless as he had to get the licence. He also stated that he did not see any notice in the doctor's office saying medical card holders had to pay for this particular examination.
3.2. The complainant received his medical card when we was 70 years of age, on 15 August 2004. At the time of the incident in question, persons over that age were automatically entitled to a medical card (this has since changed and over 70's are now subject to a means test). He stated that, since he took up the card, he has had his regular prescription paid for and has received other GP services, though the scheme does not cover him when he is abroad.
3.3. The complainant submitted he was discriminated on the age ground as he said that a person under the age of 70 can have a driving licence for €7, but that he has to pay an additional €40, and that for some older people the cost of obtaining the licence could rise to €400. He submitted that the respondent should make it clearer as to what is not covered by the Scheme. He submitted that, as far as he was concerned, the terms and conditions of the medical card scheme are laid out on the back of the card itself and this does not say anything about the test in question not being covered. If he had been made aware the test wasn't covered, he said he could have shopped around.
4. Summary of the Respondent's case
4.1. The respondent did not dispute the facts as presented by the complainant, but submitted that at no time did it treat the complainant less favourably on the ground of age. It submitted that the complainant was not deprived of the service of an examination for a driving licence, rather the State was not prepared to pay for that service. It pointed out that the complainant had availed of other services under the Medical Card scheme ("the Scheme") in the past, and submitted that the state did not have infinite resources and the HSE is obliged to ensure the resources available are allocated towards those services it is statutorily required to provide. It submitted that the decision to specifically exclude examinations in relation to fitness to drive is not in contravention of the Equal Status Acts as it was taken for legitimate policy reasons and was applied to all medical card holders, regardless of age.
4.2. The respondent informed the Tribunal that the Scheme is governed by legislation, including the 1970 Health Act, which specifies that the HSE shall make available the relevant medical services without charge to persons with full eligibility. A means test is applied. Up until 2009, persons over 70 were exempted from the means test and received automatic eligibility. In any event, all medical card holders have the same entitlements.
4.3. The Scheme is implemented at Ministerial discretion and is issued by way of guidelines from the Minister. The respondent submitted that these guidelines are issued on a yearly basis and are widely published. The Scheme entitles users to a wide range of services. It covers all in-patient and out-patient public hospital services in public wards, including consultant services, and includes some other services. It does not cover every aspect of those other services it provides, however, as some exemptions apply in relation to, for example, dental and ophthalmic services. Equally, while it includes access to some GP services, it does not include the entire range of these services (see par. 4.4 below).
4.4. In that regard, the respondent outlined the process and procedure for obtaining access to GP services for medical card holders. It went on to state that the Department of Health and Children determines the rules regarding what services are covered by the card and it has determined that not all services which a GP may be able to provide are covered by the medical card. The respondent said that it is for policy reasons that the examination at issue in relation to this complaint is excluded from the Scheme. It said that an examination in relation to fitness to drive has been specifically excluded from the services to be provided under the Scheme, along with a number of other services, on the basis, so the respondent understood, that they were not assessments made with a view to providing for the healthcare of the individual, which is the purpose of the Scheme. It is therefore up to GP's themselves to decide whether they wish to charge medical card holders for the examination in relation to fitness to drive as, either way, they are not reimbursed by the HSE for this examination.
4.5. At my request, the respondent provided further documentation from the Department of Health and Children as to the operation of the Scheme. In that context, the Department wrote to the respondent that "Section 11 of the terms and conditions of the Form of Agreement with the Registered Medical Practitioner for the provision of services under Section 58 of the Health Act, 1970...stipulates that the fees paid to GMS GP's are not made in respect of certain certificates which may be required, for example, ........for the issue of driving licences." The respondent also provided the Tribunal with a copy of the 2009 guidelines for the Scheme.
4.6. The respondent also submitted that the exclusion of the examination in question from the Scheme is clearly specified in the Agreement between it and Registered Medical Practitioners and is notified to users of the Scheme in all GP practices. A sample of the notice in question was provided to the Tribunal. The respondent could not say whether it was in the office of the complainant's doctor at the time of the incident in question, but confirmed that it was there now.
4.7. In any event, the respondent said that it is made clear to medical card holders when obtaining the card in the first instance that it does not cover every aspect of its services. It said that people are told to ask their GP or contact the HSE with regard to specific queries of what is or is not covered as it is not feasible to outline everything with the original documentation sent to medical card applicants. The respondent argued that informing medical card holders about everything that is and/or is not covered by the Scheme is problematic. It said that the question was where do you stop in sending information to people as the scope of the scheme is quite complex. It said that it believed the contract with medical practitioners was readily available on the web in general. Although it is not on its own website, it submitted that its website nonetheless does say what is excluded from the Scheme.
4.8. In any event, the respondent submitted that it had no role in deciding the requirements for obtaining a driving licence, which was a matter for the Department of Transport and/or the Road Safety Authority.
5. Conclusions of the Equality Officer
5.1. Section 38(A) of the Equal Status Acts 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/she can rely in asserting that prohibited conduct has occurred in relation to him/her. In deciding on this complaint, therefore, I must first consider whether the existence of a prima facie case has been established by the complainant. 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 in this case, I have taken cognisance of all the oral and written submissions made by the parties. The complainant submits that he was discriminated against by the respondent on the age ground because it required him to pay for a test which someone of a different age would not have had to pay for. However, I am satisfied that the medical card scheme does not cover anybody for a test similar to the one at issue in this case, irrespective of age. I am satisfied that if such a test was required of someone of a different age, such a comparator, who had access to the medical card scheme, would also have been charged for the service in question.
5.3. It is clear to me that the respondent has not failed to provide any services to the complainant which were provided to anyone else and I am satisfied that the services available to the complainant as a recipient of the medical card scheme are made available to him on the same basis and under the same conditions as they are made available to anyone else who qualifies for the Scheme. The question at issue here is, as the respondent submitted, whether the complainant was treated less favourably by being required to do the test at issue in the first place, and the HSE are not responsible for this. As the HSE is the only respondent in this matter, I have no jurisdiction to consider it any further.
5.4. I am satisfied that, in all the circumstances of the present complaint, the complainant has failed to raise an inference that there was less favourable treatment of him by the respondent on the age ground.
6. Decision
6.1. In accordance with Section 25(4) of the Equal Status Acts, I conclude this investigation and issue the following decision:
6.2. I find that, further to Section 38A of the Equal Status Acts, the complainant has failed to establish facts from which it may be presumed that prohibited conduct by the respondent has occurred in relation to him. The complainant has therefore failed to establish a prima facie case of discrimination on the part of the respondent.
6.3. Accordingly, the complainant's case fails.
_____________
Gary O'Doherty
Equality Officer
16 November 2009