The Equality Tribunal
3 Clonmel Street
Dublin 2.
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-S2009-073
Goulding
(Represented by Mr. Conor Power BL on the instructions of the Equality Authority)
v.
O'Doherty
(Represented by Mr. Michael MacNamee BL on the instructions of DAS Group)
File No. ES/2006/0082(A)
Date of Issue: 15 October 2009
Keywords:
Equal Status Acts 2000 to 2004 - Discrimination, section 3(1)(a) -Disability ground, section 3(2)(d)- Provision of goods and services, section 5(1) - Reasonable accommodation, section 4(1) - nominal cost exemption, section 4(2) - other non-discriminatory practices, clinical judgment, section 16(2)(a)
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. James Goulding referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 31 July 2006. 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 17 October 2008. An oral hearing, as part of the investigation was held in Dublin on 23 April 2009.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the disability ground. Mr. James Goulding ("the complainant") submitted that Mr. Michael O'Doherty ("the respondent") treated him less favourably on the ground of his disability contrary to section 3(1) and 5(1) in that the respondent refused to treat his foot complaint on 15 June 2006 and advised the complainant to seek treatment with another chiropodist. The respondent was notified on 28 June 2006.
3. Case for the Complainant
3.1. The complainant is a person who lives with the HIV virus. He is in receipt of a Chiropody Card that was issued to him by the Health Service Executive on 1 December 2005. This card entitled the complainant, who experiences difficulties with his feet due to his on-going condition and the medications taken to control it, to four visits with a chiropodist per annum.
3.2. The complainant submitted that he was referred to the respondent's service by the Lord Edward Health Centre (Health Service Executive) for chiropody treatment on 15 June 2006. The complainant submitted that he was in considerable amount of pain as one of his toenails had become infected. The complainant was accompanied by a named friend (who gave evidence at the hearing). Upon entering the clinic, the complainant submitted, the respondent asked the complainant to take a seat by the window and to remove his shoes and socks. It was submitted that the respondent then returned to a patient that he appeared to have been treating when the complainant arrived. After a short period the respondent returned and the complainant showed him his Chiropody Card. The complainant submitted that the respondent queried why he, a young man, was entitled to a podiatry card. While the complainant felt this was an inappropriate question for the respondent to ask, he submitted that he told the respondent about his HIV status. The complainant further submitted that there was no legal requirement for him to do so but that he did not want to hold back any health related information from the respondent whom he viewed as a professional.
3.3. The complainant submitted that the respondent immediately told him that there would be problems or complications with cutting, cross-infection, sterilisation, etc. and that therefore the respondent could not treat the complainant. The complainant submitted that the respondent told him that he needed to be treated by a practitioner who specialised in treating the feet of people with HIV. It was submitted that a practice in Tallaght was mentioned. The complainant submitted a copy of a card to the Tribunal that the respondent gave him. The card stated: 'Please refer to [a] Chiropodist who [has] specialty in this area'. The complainant submitted that he was upset with this treatment but as he was genuinely concerned about the condition of his foot he asked the respondent to look at his feet. The complainant submitted that the respondent briefly looked at his feet and declared them to be 'fine'. The complainant submitted that the respondent then placed a bandage of his foot and gave him a couple to take away with him.
3.4. The complainant submitted that the experience left the complainant feeling extremely hurt, angry and upset by what happened at the respondent's surgery. He submitted that he believed that the respondent judged the complainant by his HIV status and, the complainant submitted, he felt dirty, diseased and degraded by this judgment he believed had been made about him. The complainant submitted that for a moment, because of the way the respondent made him feel, he actually believed that he deserved to be treated in an unequal manner because he was living with HIV. The complainant submitted that he suffered a panic attack outside the surgery.
3.5. The complainant further submitted that, with the help of a named person in Dublin Aids Alliance, the complainant was able to find an alternative chiropodist who, it was submitted, found that his feet were not 'fine'. It was submitted that the complainant had an infection that required treatment with antibiotics.
3.6. The complainant's representative also made a number of arguments concerning the international legal principles concerning HIV and discrimination. It was submitted that The International Covenant on Civil and Political Rights, The International Covenant on Economic and Social Rights, The International Guidelines on HIV/AIDS and Human Rights, among others, call for HIV to be considered as a disability and, therefore, afforded the same legal protection as other disabilities.
3.7. In relation to the present case, it was submitted that the complainant was treated less favourably because of 'the application of different rules to comparable situations, or the application of the same rule to different situations' as per the European Court of Justice in Case C-342/93 Gillespie and Northern Area Health and Social Services Board. It was submitted that the complainant was directly discriminated against on the basis of his HIV status and on the basis of the stigma related to his condition.
3.8. It was submitted that the suggestion that a clinic with a higher standard of sterilisation of equipment was more appropriate to the complainant was unjustified and unsustainable for, inter alia, the following reasons:
1. The respondent should operate a clinic with adequate sterilisation procedures for patients with HIV;
2. Failure to do so would put all patients at risk;
3. It is a grave concern given that the respondent may be treating patients with HIV who do not know they have the condition;
4. The respondent purports to comply with professional guidelines in his standard of sterilisation and this should be adequate for the treatment of patients with HIV.
3.9 It was submitted that the respondent refused or failed to do all that was reasonable to accommodate the needs of the complainant by providing adequate treatment of facilities, contrary to section 4 of the acts.
3.10. The complainant's representative submitted Chiropody & Podiatry Infection Control Guidelines (Essex Health Protection Unit: 2005), Health Service Executive Code of Practice for Decontamination of Reusable Invasive Medical Devices (Part 5b: Recommended Practices for Dental Services in Local Decontamination Unit) and Sterilization of health care Products - Moist heat - Part 1: Requirement for the development, validation and routine control of a sterilization process for medical devices (The European Standard EN ISO 17665-1:2006/British Standard BS EN ISO 17665-1:2006), Health Service Executive Dental Service (East) - Revised Guidelines for the use of Steam Autoclaves in HSE managed Dental Clinics (2006), Safe and Effective Use of Bench Top Steam Sterilisers (Irish Medicines Board Safety Notice: SN2008(07), Operational Manual for ISO 13485 -accreditation of Sterile Service procedures in a health care facility, Standards for the decontamination of reusable Podiatry instruments in primary care - Society of Chiropodist & Podiatrists (November 2005-Review September 2007) as examples of existing policy guidelines in relation to sterilisation and infection control guidelines.
4. Case for the Respondent
4.1. The respondent submitted that he did not refuse to treat the complainant on 15 June 2006. It was submitted that the respondent, having discovered that the complainant had HIV status, referred the complainant to a chiropodist the respondent knew had expertise in the area. This referral was made, the respondent submitted, because the respondent believed that the other chiropodist had special facilities that were better suited to handle any difficulties that may have risen regarding possible cuts or infections. The respondent submitted that it has never denied that the complainant's condition is a disability within the meaning of the acts.
4.2. It was submitted that the respondent's instant and only concern at the time of the incident was as to the suitability of his practice facilities to the care-needs of the complainant. It was submitted that on knowing the complainant's HIV status, the respondent believed it was in the best interest of the complainant to be in the care of someone experienced in this specialty [dealing with the feet of a person with HIV status]. The respondent submitted that this type of referral was common in the health service system and that he was treating the complainant just as he would have treated any other patient in need of special care.
4.3. It was submitted that the respondent's practice is conducted in small, one room, premises. The space is partitioned into a reception desk and waiting area, two treatment areas and an equipment sterilisation area. It was submitted that it is such a confined space that the respondent cannot guarantee that there will be a complete absence of air-borne infected nail dust which arises from the professional thinning of nail-plates using abrading burs (a common practice with elderly clients who make up the majority of the respondent's client list) and notwithstanding the use of attachments such as vacuum dust-extractors, such dust particles would, the respondent submitted, have prevented a potential hazard for a patient with immunosuppressant condition. The respondent submitted that he owed a duty of a care to the complainant in referring him to a practice specifically geared to deal with an immunosuppressant condition. The respondent submitted that he believed that in doing so he was recognising his duty of care to the complainant and by doing so, was acting in the best interest in the complainant.
4.4. It was submitted that the respondent did not refuse to treat the complainant nor did he discriminate against him on the grounds of his disability or otherwise. It was submitted that the respondent formed the professional opinion that his facilities and his professional expertise were unsuited to the treatment of a person with the complainant's condition. The respondent submitted that higher standards of decontamination are available in other surgeries than his clinic can offer. It was submitted, that the respondent in good faith and with the complainant's best interests paramount in his mind, offered to refer the complainant back to the Health Service Executive for onward referral to one of the several facilities that the respondent knew were specifically geared to treating patients with compromised immunity. It was further submitted that in so doing the respondent was recognising his duty of care to the complainant and was acting in the best interest of the complainant. The respondent submitted an expert report supporting this argument to the investigation.
4.5 The respondent submitted that the Health Service Executive normally consults with a practitioner before issuing a treatment card to obtain the practitioners permission to include the patient to his/her list of card-holders. It was submitted that this did not occur in the complainant's case through no fault of the complainant. It was for this reason that the respondent was moved to inquire about why the complainant was in possession of a Chiropody Card. It was submitted that the card that the respondent wrote and gave to the complainant was intended to be brought back to the Health Service Executive by the complainant so that the complainant could be referred to a clinic that would be best suited to deal with the complainant's condition.
4.6. It was further submitted that if the Tribunal finds that the respondent discriminated against the complainant (which the respondent denies), then it is submitted by the respondent that the reason for this refusal was because the respondent was concerned that the complainant receive the best possible care as an objective justification for any discrimination against the complainant.
4.7 It was submitted that the respondent's equipment and facilities meet the appropriate standards of hygiene. It was submitted, however, that specialised facilities which provide further and better protection It was submitted that section 4(2) provides the respondent with a nominal cost exemption. The cost of a vacuum B sterilizer was submitted to the investigation.
4.8. It was submitted that it is a cause of great distress, dismay and regret to the respondent that the complainant was so offended by the respondent's well intentioned and bona fide actions in advising him, in his best interests, to pursue an onward referral. The respondent denies that he intended to discriminate against the complainant in any way and he is distressed that the complainant felt so discriminated against. The respondent's distress is further compounded by the fact that the tenor of his discussion with the complainant was at all times professional, cordial, amicable, even-tempered and supportive. It was submitted that the complainant appeared to receive the respondent's advice in that spirit.
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. I have taken cognisance of both written and oral submissions made to this Tribunal while making this decision. Both parties agree that the complainant is covered by the discrimination ground in accordance with section 2(1). It is clear that the complainant did visit the respondent's premises with a view of obtaining a service within the meaning of section 5(1).
5.3. I do not accept that the respondent made what can be described 'an offer' to the complainant in relation to his referral of the complainant to another practitioner. It is clear from the evidence that the complainant was not presented with a choice, but was firmly told to receive treatment elsewhere. While the respondent claims that he was helpful and that this referral was in the best interest of the complainant, it is obvious that the complainant did not receive the service from the respondent that he was seeking. This argument is strengthened by the respondent's denial that he purported to or did in fact diagnose or treat the complainant's foot as alleged.
5.4. I note that the respondent argued a number of times that he formed a professional opinion according to which he was not qualified to treat the complainant's condition [HIV infection]. It is clear from the evidence that the respondent had no expertise of managing HIV nor knowledge of the clinical or policy developments in that field. It is important to point out that the complainant was not seeking treatment for his HIV infection. I find that the complainant presented himself to avail of a service - a foot complaint - that the complainant would have normally provided to his clients. I find that the reason why the respondent refused to provide the complainant with this service was because, having been told by the complainant that the complainant was living with HIV, the respondent decided that he could not manage the complainant's HIV infection. To support this interpretation, I am particularly mindful of the respondent's direct evidence where he stated a number of times that in his opinion: "people like that [people with HIV/AIDS] should be wrapped up in cotton wool and treated in specialist institutions". It is clear that the respondent firmly believed that the complainant's existing condition posed a health risk to the complainant and the respondent's other customers who the respondent stated where "elderly". Furthermore, I find that the respondent's decision not to treat the complainant's foot was because the respondent viewed the complainant's disability as very contagious and believed that the complainant was more vulnerable than persons without HIV would be. Because of this belief, the respondent decided that the complainant should be treated in a 'specialist' clinic. This is a situation where the respondent, because of his knowledge of the complainant's HIV status, applied different rules than he would have applied in a comparable situation with a person without HIV. I am therefore satisfied that the complainant was treated less favourably than a person without his disability would have been treated in similar circumstances.
5.5. Throughout the hearing the Tribunal heard a number of arguments about what would constitute best practice in the field of chiropody in relation to sterilisation and whether more suitable facilities are available with higher standards of contamination would have been available for the complainant. I am quite sure that the answer to the latter questions is yes. The equal status acts are not, however, concerned about what constitutes best practice in policy areas or whether something better might be available elsewhere. Such a defence would render the acts virtually useless. For example, if this was the case any service provider could always excuse their refusal to treat a person by stating that another service provider would be better suited to treat that person and thus relieving themselves from their duties imposed by the acts. The aim of the acts is to protect individuals with a specific social status - clearly defined in the acts - from less favourable treatment that is, would be or could be offered to a person without that social status in similar circumstances. Furthermore, the acts impose an obligation on any service provider to do all that is reasonable to accommodate a person with a disability. It is clear, that a defence of a more suitable service, in the circumstances of this case, is only available in accordance with section 16(2)(a). I am satisfied, having heard the evidence, that the matter before this Tribunal does not fall within the meaning of other non-discriminatory activities set out in section 16(2)(a). This is because I am satisfied that the respondent did not refuse to treat the complainant's foot condition solely in the exercise of a clinical judgment with the diagnosis of an illness or his or her medical treatment. It is clear that having become aware of the complainant's HIV status because of the complainant's disclosure, the respondent decided that the complainant needed specialist care. That is, I find that, if the complainant was not living with HIV or the respondent had not been aware of this fact, the respondent would have been perfectly capable of treating the foot complaint itself.
5.6. While the respondent brought an expert witness to discuss the potential hazards that treating a patient with HIV may cause and the ideal situations that might prevent these situations, I am very mindful that this information was not something the respondent possessed at the time of the incident. I find that, at the time of the incident, the respondent had formed an opinion about HIV as a highly contagious disease and that persons living with HIV were more vulnerable or fragile than others. This is despite admitting that he had no real knowledge about HIV infections nor the clinical developments in the area. While the expert report submitted on behalf of the respondent clearly stated that there are more suitable surgeries available for the complainant, this does not remove the onus placed on the respondent by the equal status acts not to discriminate in the provision of goods and services. It is also important to point out that no evidence was presented to support any argument that such more sterile environments are in any way necessary, just that they would be better or more ideal.
5.7. In such a case where the Tribunal is satisfied that the discrimination was direct in accordance with section 3(1), the issue of reasonable accommodation in accordance with section 4(1) does not necessarily arise. While I note that it was argued that the respondent did not have appropriate facilities in place to manage the issues that the complainant's on-going condition imposed on the respondent, I find that I was presented with no scientific fact or other legitimate reason that would have supported the idea that the complainant's condition required any such management.
5.8. I am satisfied that the respondent operated a surgery at the time of the incident that meets all the requirements for a practitioner to practice. Therefore, I am not satisfied that the complainant would have been unable or it would have been impossible for him to avail of the service without special treatment or facilities . In such a case, where section 4(1) does not arise, the Tribunal cannot consider section 4(2) as a defence.
5.9. I am satisfied, having perused the number of policy documents submitted to this investigation about treatments where 'sharps' are required and having heard the expert evidence on the day of the hearing, that in this case there is no legitimate reason why the complainant should not receive allied health services such as dental, chiropodist, podiatry, etc the same way as any other person not living with HIV would receive it. It is clear that universal health and safety precautions are in place precisely for this reason. It was pointed out by the complainant's expert witness - a member of the specialist register of the Irish Medical Council for Genitourinary medicine and HIV - that there are a number of people availing of such services who do not know that they are infected with HIV or any other infection and who could not, for this precise reason, inform a service provider that they are infected with the HIV or any other virus. It was also pointed out that many persons who receive treatment for HIV have similarly working immune systems as persons without HIV. I find that, having heard the extensive expert evidence at the hearing and having perused the support documents submitted to the investigation, good practice sterilisation issues and universal protocols are not necessarily costly or complicated matters. This is not to say, however, that they are not important when providing a health services. The point is that good practices and universal precautions are in place to protect everyone regardless of status and to ensure best health and safety practices for everyone. They are not in place to provide service providers with an exemption from non-discrimination as defined in the acts.
5.10. I note that the Tribunal heard extensive expert evidence from both sides about what would constitute best practice in the field of chiropody. It is not a matter for this Tribunal to determine such matters. I am however compelled to point out that while it seems a rather obvious argument to make, it would seem that universal precautions should be so practiced by all professionals engaging in health and related care.
5.11. It is equally important that persons providing any type of a health service are correctly informed that persons living with HIV are often incorrectly perceived as being unhealthy or wrongly perceived as a threat to public health. It is crucial that these misconceptions are tackled effectively and immediately. It is clear to this Tribunal that it is precisely because of these incorrect and outdated perceptions that resulted in the complainant as being viewed and treated less favourably than a person who is without HIV (or not known to have the infection) would be treated in similar circumstances.
6. Decision
6.1. In accordance with section 25(4) I have concluded my investigation and issue the following decision:
6.2. The complainant has established a prima facie case of less favourable treatment contrary to sections 3(1) and 5(1) on the ground of his disability. The respondent has failed to rebut this. In accordance with section 27(A) I award the complainant €6000 for the effects of the discrimination and the humiliation and hurt caused. The amount is to reflect the seriousness of the discrimination experienced by the complainant and to emphasise the importance of a person's right to receive health care in a non-discriminatory manner.
________________
Tara Coogan
Equality Officer
15 October 2009