The Equality Tribunal
3 Clonmel Street
Dublin 2.
Phone: 353 -1- 4774100
Fax: 353-1- 4774141
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Website: www.equalitytribunal.ie
Equal Status Acts 2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2009-072
Traynor
(Represented by MacGuill and Company Solicitors)
v.
Health Service Executive Dublin North East
File No. ES/2007/0081
Date of Issue: 15 October 2009
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1)(a) - Traveller community ground, section 3(2)(i) - Provision of goods and services, section 5(1) - Reasonable accommodation, section 4(1) - Certain activities not discrimination, section 16(2)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Christopher Traynor referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 24 July 2007. In accordance with her powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, 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 Acts. An investigation, in accordance with section 25(1) of the Acts, commenced on 12 December 2008. An oral hearing, as part of the investigation was scheduled for 21 July 2009. The Director granted the complainant a brief adjournment on 20 July 2009. The hearing was held in Dublin on 12 October 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability and membership of the Traveller community ground. Mr. Traynor ("the complainant") maintains that the Health Service Executive ("the respondent") treated him less favourably on the above grounds contrary to section 3(1) and 5(1) on 24 July 2007 in that the complainant was not immediately referred to a pharmacy re methadone treatment despite the fact that, according to the complainant, a pharmacy was available. Furthermore, the complainant submitted that he was not treated with dignity and respect. The respondent was notified on 19 July 2007.
3. Case for the complainant
3.1. The complainant is a member of the Traveller community and is a person who has misused drugs.
3.2. The complainant submitted that a named addiction counsellor told him on behalf of the respondent that none of the chemists in Dundalk were taking on more clients for methadone treatment so that he would have to wait before he could be placed on such a programme. The complainant submitted that a named voluntary drugs worker (not in any way associated with the respondent) told the complainant on 24 May 2007 that he had found a chemist who was willing to take the complainant on for methadone treatment. The complainant stated at the hearing that this named drugs worker told the complainant that when he was told that the complainant needed to be placed on a waiting list, the named drugs worker decided to check whether this was the case. It was submitted that he approached a recently opened named chemist around Dundalk and, according to the named drugs worker, the named pharmacist was happy to take the complainant and another named person on for treatment.
3.3. It was stated that the named drugs worker then contacted the complainant's mother and told her the positive news. It was submitted that the complainant's mother then rang a named addiction counsellor working for the respondent and told her that the named drugs worker had found a chemist who was happy to take the complainant on. According to the complainant, the complainant's mother was told by the named addiction counsellor that she was not in a position to authorise this, that there were policies and procedures that needed to be followed and that she would have to check with someone else and get back to her.
3.4. The complainant submitted that the drugs worker then rang the same addiction counsellor and enquired what appeared to be a problem. It was submitted that the drugs worker told the complainant that the addiction counsellor replied that the complainant could not receive treatment in the named chemist as the complainant was not suitable and that the complainant would be receiving treatment in a larger chemist that would have greater security. The complainant submitted that the drugs worker balked at this as he had only been talking to the named chemist approximately 30 minutes earlier and the named chemist had been perfectly happy to take the complainant on as a client. He submitted that the named drugs worker enquired whether the named addiction counsellor had convinced the named pharmacist not to take the complainant on and it was submitted that the named drugs worker suspected that the named addiction counsellor making the named pharmacist believe that the complainant was a dangerous criminal. It was submitted that the named drugs worker told the named addiction counsellor that a number of his clients had been unhappy about the way she was treating them and that the named addiction counsellor did not care about the people that she was working with.
3.5. The complainant submitted that the named drugs worker had returned to the named chemist on 25 May 2007 to ask what had happened between him and the Health Service Executive. It was submitted that the named pharmacist had told him that the named addiction counsellor had rang him the previous day and told him not to take on the complainant because he was up for armed robberies and that he [the complainant] knew all the local 'scumbags' in the area. It was submitted that the counsellor had no right to say what the pharmacist allegedly told the drugs worker that she had said.
3.6. The complainant's representative submitted that the complainant was not generally unhappy with the service he has received and continues to receive from the respondent. The complainant's claim is specifically about the incident that allegedly took place between the named pharmacist and the voluntary drug worker.
4. Case for the respondent
4.1. The respondent submitted as way of background that the complainant has been availing of the service for a number of years. It was submitted that the complainant had been treated exactly like any other person seeking methadone treatment would have been treated at the time of the alleged incident. It was submitted that at the time pharmacist were staging a go-slow protest which was creating some difficulties for the respondent.
4.2. It was submitted that the appropriate level of information concerning clients seeking to avail of methadone treatment is exchanged with a pharmacy in accordance with The Pharmaceutical Society of Ireland Guidelines on the Treatment of Opioid Misusers. It was submitted that the respondent also enquires about the client's preferences bearing in mind that they may not want their family pharmacist knowing about the treatment, etc.
4.3. The Health Service Executive vehemently refutes that the complainant's claim that he was discriminated against on the grounds of his membership of the Traveller community. It was submitted that the complainant was not referred to a pharmacy immediately as there were compelling medical reasons for a delay. The General Practitioner, who assessed the complainant at the time, gave evidence to this effect.
4.4. It was submitted that the respondent currently has 42 clients receiving methadone treatment. 5 of these persons are Travellers.
5. Conclusion of the 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 he can rely in asserting that he 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. It is agreed that the complainant is a member of the Traveller community. The complainant withdrew his complaint of discrimination on the disability ground at the day of the hearing.
5.3. While the Tribunal can be somewhat more relaxed about rules of evidence than the courts, I find that the level of hearsay presented to me in this case has to be commented upon. The Tribunal cannot place any value on evidence that is entirely based on hearsay. While I note that hearsay can be of value when supporting a specific fact relevant to the proceedings that does not require the Tribunal to consider or accept the truth of any of the statement's assertions, I find that this is not the case in the present complaint. The entire case is built upon an alleged conversation that took place between an well intentioned bystander (the volunteer drugs worker) who, so it would appear, was mistrustful of the respondent's reasons for not immediately dispensing methadone to the complainant. I have no way assessing whether any of this was actually said or whether this was simply inferred by the bystander because the respondent told him that the pharmacist was no longer willing to take him on a patient. It is not also clear whether this bystander's unorthodox approach of making direct contact with the named pharmacist placed the named pharmacist in a position where it was easier for him to say that he would take on the complainant provided that the respondent agreed.
5.4. I have been presented with no compelling reason to believe that the respondent addiction counsellor had any reason to deny the complainant a service by alluding to an 'armed robbery' as some strange analogy to membership of the Traveller community. While I note that the complainant does not suggest that such analogy exists, the entire case seems to rest on an alleged conversation that took place between two people who were not at the hearing. It appears that based on this alleged conversation, the bystander decided that the only reason why the respondent would lie to the named pharmacist is because the complainant is a member of the Traveller community. It was presented to me that this is because the respondent has no respect for Travellers and decided to sabotage the complainant by stating that he was 'up for armed robbery'. I do not find this a compelling argument.
5.5. The lack of evidence provided for this investigation places the Tribunal in a position where all I can do is infer the following:
1. I am satisfied that a contact between the respondent and the named pharmacist took place as a result of the named drug workers involvement. I am satisfied that the respondent contacted the named pharmacist. I am also satisfied that while normally the pharmacist would have been the one to contact the respondent, the fact that a go-slow was in operation and pharmacists were refusing to take on new methadone users, it is understandable that the respondent would have proactively contacted someone willing to take on new methadone users, especially as the named pharmacist was new to area and would therefore not had any expertise of the procedures and practices between the respondent and any pharmacy providing this service on their behalf.
2. The named drug addiction counsellor (for the respondent) did speak with the named pharmacist. I find the respondent's evidence about this conversation more compelling despite the fact that she cannot be certain of exactly what had been said. I do not accept that a professional dealing with another unknown professional would refer to the complainant as a person "who hangs with scumbags" or would state that the complainant was "up for armed robberies" when there is nothing in his file to state that this was the case. I am satisfied that the respondent did relay information about the complainant (including minor offences) in accordance with set guidelines. I have been presented with no evidence to support an argument that an armed robbery was discussed at all. The Tribunal was told by the respondent that the pharmacist had decided that he was not quite ready to take on the complainant as his first methadone client and, in the circumstances, this seems a perfectly reasonable decision.
3. I am satisfied that the respondent had decided to delay the complainant's methadone treatment for reasons that fall under section 16(2), that is, the General Practitioner, who assessed the complainant's suitability for the methadone treatment programme, was exercising clinical judgment when delaying the complainant from methadone treatment. I am satisfied, having heard his evidence, that there were genuine medical reasons which meant that it would have been unsafe to treat the complainant with methadone immediately.
4. That as soon as the complainant was cleared by the above General Practitioner to enter the programme on 21 June 2007, he began his treatment programme on 28 June 2007.
5.6. I have been presented with no evidence to provide a nexus between membership of the Traveller ground and the alleged less favourable treatment. Furthermore, I have been presented no evidence that the complainant was in receipt of less favourable treatment. I find that the complainant was treated exactly like anyone else looking for methadone treatment would have been treated in similar circumstances.
5.7. I note that the respondent denies having any knowledge that the complainant is a member of Traveller community. It was submitted that while the service currently collates information about some of the grounds, this was not done when the complainant became a service-user. I note that the complainant was introduced to the service by his home-school liaison teacher when the complainant was 17. It was submitted that his mother is not a Traveller and the complainant, who grew up in England, lives in a standard housing estate. I do not accept that it is clear to anyone that the complainant is a Traveller without having been told of the fact. The complainant submitted that his father is well known in the area and that he associates with known Travellers. This may be the case. I accept that the fact that the voluntary drugs worker is apparently a known advocate for Travellers and that him advocating for the complainant may have created an association for those who know this person. Nevertheless, my findings in paragraph 5.6. stand.
5.8. Having examined the guidelines issued by the Pharmaceutical Society of Ireland in relation to the treatment of a client in receipt of a methadone treatment programme, I am satisfied that the respondent acted according to these rules and issued information accordingly. I have been presented with no evidence to support an argument that the information forwarded by the respondent to the named pharmacy was less favourable than information would have been forwarded pertaining to a person who is not a Traveller.
5.9. While I note that the complainant submitted in his notification form that he believed the treatment he received from the respondent amounts to discrimination, slander of a person's character and a serious breach of confidentiality between client and counsellor, this Tribunal only has jurisdiction to deal with the matter of discrimination.
Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has failed to establish a prima facie case of less favourable treatment contrary to sections 3(1) and 5(1) on the ground of his membership of the Traveller community. Therefore, the complaint fails.
________________
Tara Coogan
Equality Officer
15 October 2009