Equal Status Acts
2000 to 2008
EQUALITY OFFICER'S DECISION
NO: DEC-S2010-053
PARTIES
A patient
(Represented by Mr. Michael Lynn BL on the instructions of Carmody Moran Solicitors)
- V -
Health Service Provider and a Hospital
(Represented by BCM Hanby Wallace Solicitors)
File reference: ES/2008/0222 and ES/2009/0005
Date of issue: 1 December 2010
File reference: ES//2008/0222 and ES/2009/0005 - DEC-S2010-053
Equal Status Acts 2000 to 2008 - Discrimination, section 3(1) - gender ground, section 3(2)(a) - service provision 5(1) - Other non-discriminatory activities, section 16(2)(a)
1. Dispute
1.1. This dispute concerns a complaint by a Patient (hereafter "the complainant") that she was subjected to discriminatory treatment contrary to the Equal Status Acts by a Health Service Provider and a Hospital (hereafter "the respondent"). It was submitted that the discrimination has been on-going since the complainant's hospitalisation in the latter part of 2000. The complaints have been made on the gender ground.
2. Delegation
2.1. The complainant referred two complaints under the Equal Status Acts to the Director of the Equality Tribunal. The first complaint named the hospital as the respondent on 08 December 2008. The second claim, against the service provider, was received on 16 January 2009. In accordance with her powers under section 75 of the Acts, the Director then delegated these cases to Tara Coogan- an Equality Officer - on 13 April 2010 for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part VII of the Acts. Accordingly, on this date, my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 1 July 2010. Due to the complainant's disability, it was agreed between the parties that further written submissions - relating to law - would be submitted in writing to the investigation. The reply period for this exchange closed on 8 September 2010. This decision has been anonymised with the consent of the parties.
3. Preliminary issue
3.1 A preliminary issue was raised at the end of the hearing. It was submitted by the respondent that the facility and the nature of the service that the complainant's complaint referred to is not within this Tribunal's jurisdiction because the respondent is not a provider of goods and services within the meaning of the Acts in that it is not available to the public generally or a section of the public. The respondent relied on the Oxford English Dictionary where 'service' is defined as "capable of being used; at one's disposal". It was submitted that the accommodation provided for the complainant is part of involuntary detention under the Criminal Justice (Insanity) Act 2006 and that the word "available" implies a voluntary availing of in the ordinary meaning of available. The respondent submitted Donovan v Donnellan (DEC-S2001-011) as an authority in the matter.
3.2. Service, according to section 2 of the Acts, means a "service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes --
(a) access to and the use of any place,
(b) facilities for --
(i) banking, insurance, grants, loans, credit or financing,
(ii) entertainment, recreation or refreshment,
(iii) cultural activities, or
(iv) transport or travel,
(c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and
(d) a professional or trade service,
but does not include pension rights (within the meaning of the Employment Equality Act, 1998) or a service or facility in relation to which that Act applies."
3.3. The complainant, in reply, submitted that paragraphs (a), (b) and (c) are non-exhaustive. The key part of the definition is that a service is 'a service or facility of any nature which is available to the public generally or a section of the public'. It was submitted that the facility is an approved centre pursuant of the provisions of the Mental Health Act, 2001. Section 62 of that Act defines a centre as: 'hospital or in-patient facility for the care and treatment of persons suffering from mental illness or a mental disorder under the clinical direction of a consultant psychiatrist'. This clearly means that the hospital is a provider of services. It was also pointed out that the hospital's own Mission Statement places an emphasis on its role as 'a service provider' and refers to patients as 'service users'. Furthermore, the hospital is funded by public money.
3.4 Furthermore, it was submitted that a perception that the provision of care towards the mentally ill persons is not a provision of a service is in itself discriminatory of the mentally ill as against other persons who avail of other services of the State. Such treatment could not be legitimately justified and it was submitted that such treatment constitutes unlawful discrimination and contravenes with Articles 8 and 14 of the European Convention of Human Rights (ECHR) and is therefore in breach of section 3 of the European Convention of Human Rights Act, 2003.
3.5. Whilst it was accepted by the parties that it is the case that only persons suffering a particular degree of illness are admitted to the hospital it does not alter the fact that a service is provided to those persons. Furthermore, the complainant submitted, the fact is that the hospital provides services to only persons who are admitted there pursuant of the Mental Health Act, 2001 and Criminal (Law Insanity) Act, 2003 and is therefore 'available to a section of the public'.
4. Case for the complainant
4.1. The complainant is a female resident in a hospital. Her condition is covered by the Criminal Law (Insanity) Act 2006, the Mental Health Act, 2001 and the Equal Status Acts 2000 to 2008. The Tribunal had sight of number of medical reports to confirm same. Her complaint relates to the fact that she, as a female, received and continues to receive less favourable treatment than male patients staying in the hospital. She submitted a number of services, not relating to her personal clinical care but specific to the facilities available in the hospital, discriminated against her as a woman. It was submitted that the hospital only contains one female unit that caters for widely differing needs in relation to clinical care and in terms of risk and security status. In contrast, male patients are able to avail of a number of therapeutic units with differing security levels. The complainant also submitted that male residents are able to avail of an external hostel while no such facility is available to women. Further complaints about security measures such as freedom to move around the facility and the use of family facilities were referred to.
4.2. The complainant submitted that in her opinion her rehabilitation is being hampered and delayed by the fact that she cannot move to another unit that could provide her with increasing levels of self-responsibility and liberty in a similar manner as the male patients can. The complainant referred to the Report of the Inspector of Mental Health Services (2008) that stated that due to the current limitations of the hospital, it has not been possible to provide different levels of secure care for female patients.
4.3. It was submitted that integrated facilities were not the best possible service for women with the complainant's condition. In any regard, the service available for the complainant is less favourable because of her female gender than that provided to male patient's in the hospital.
5. Case for the respondents
5.1. The respondent submitted that the correct respondent is the Health Service Provider, not the hospital.
5.2. It was submitted that. in addition to the preliminary issue, the claim was not properly before the Tribunal as the treatment complaint of related to matters of clinical judgment in accordance with section 16(2).
5.3. The respondent relied on the Tribunal decision Mr X v Health Service Executive (DEC-S2008-112) where the equality officer accepted in the circumstances of that case that the respondent's inability to secure a psychologist was an administrative issue due to financial constraints or inadequate staffing resources and did not thus constitute discrimination. It was submitted that the same statement applied to this case.
5.4 The respondents refuted that the complainant was not availing of all possible treatment options that are relevant to her condition. A catalogue of interventions was provided to the investigation.
5.5. It was submitted that the security arrangements were in place to protect the complainant and other patients staying in the facility. Such arrangements were in place to protect the complainants and the other patients.
5.6. It was denied that the treatment of the complainant was in any way discriminatory of the mentally ill as opposed to others who avail of the health services and that such treatment is in contravention of Articles 8 or 14 of the ECHR.
6. Conclusion of the equality officer
6.1. 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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties. It must be noted that while the complainant is a person with a disability, this complaint is on the gender ground only.
6.2 Preliminary issues
6.2.1. It was accepted that the named Health Service Provider is the correct respondent in the circumstances of this case.
6.2.2. It is well established in law that the provision of health services are within this Tribunal's jurisdiction. I do not therefore accept that mental health services, regardless of their nature, are not a service within the meaning of the Acts. Much has been made of the fact that the hospital is one that detains persons pursuant to statutory provisions providing for their in-patient treatment. None of the statutory provisions referred to provide a defence in accordance with section 14 of the Acts. That is, there is no statutory provision that explicitly provides for the differences of treatment of men and women. I am satisfied that the hospital is a service provider to persons, both female and male, who suffer from a specific type of mental disorder.
6.2.3. Furthermore, the detention aspect is clearly an integral part of the treatment and cannot in any meaningful way be separated from it. To do so, I find, would be to ascribe an element of the patients' treatment to retribution rather than rehabilitation and such approach would be against law and public policy. It is clear that the persons availing of the service are doing so because they require specific treatment and health care. I am also satisfied that this case can be distinguished from the Donovan decision in that I do not accept that the hospital is anything other than a hospital. It is the very services that the hospital provides that have dictated its nature.
6.2.4. It is clear that the service is one that is available to a section of the public. I find that pursuant of the literal and purposive meaning of the Acts, all health service providers have a duty of non-discrimination. It is irrelevant whether the availing of such service is voluntary or involuntary. It could indeed be argued that a majority of persons availing of health services would choose, given the opportunity, not to be in need of such services.
6.3. Discriminatory treatment
6.3.1. The Tribunal heard that the hospital's patient ratio is approximately 10% female and 90% male. This is because of the nature of the hospital and the differing way that mental health disorders affect women and men. It was submitted that while females and males suffer from mental health problems in equal number, it is more usual for men to be affected by disorders that bring them to this particular hospital. It is clear from the facts that the rationale for the number of male/female units in the hospital is a policy decision arising from the gender breakdown. Having heard the evidence, regardless of the foregoing, it has however been impossible to adduce any evidence that the complainant has been treated any less favourably as a result of the above policy decision. I note that reports, submitted to the investigation, clearly show progress in the complainant's case. While the evidence presented to the investigation has shown that there has been difference of treatment between men and women, such treatment has not been shown to be less favourable. While I note that the complainant would prefer to be housed in a unit that does not deal with admissions, no expert evidence on clinical judgment to support her argument was provided. In contrast, the Tribunal was presented with compelling expert evidence on behalf of the respondent that indicated that the complainant is and has been receiving the best possible medical care available to her. In such circumstances, where no rebuttal to this expert opinion has been forthcoming, it is impossible for this Tribunal to adduce any evidence of less favourable treatment. Therefore, I have taken cognisance of section 16(2)(a), and am satisfied that any treatment that the complainant has received has been in accordance with treatment associated with clinical judgment.
6.3.2. It was also accepted that no external hostel facility was available to the complainant because of her gender. Such a facility exists only for the hospital's male patients. I note that a report from a named authority documented the complainant's rehabilitation (dated 28 June 2007) and acknowledged the lack of step down facilities and the isolation that the one unit posed as a concern. The report identified the benefits of a lower security environment. It was also noted that such ambitions would pose a number of practical difficulties to the respondent. In contrast, I note in the circumstances of this complaint, the complainant had been released to avail of accompanied and unaccompanied home visits instead of a stay in a hostel as well as a day facility that she has been attending twice weekly. Such visits have been deemed to be more suitable for her by her treating psychiatrist. It was submitted in direct evidence that such visits are, in her clinical judgment, more beneficial to the complainant than a stay in an external hostel. In such circumstances, I am satisfied that such different treatment does not constitute less favourable treatment of the complainant.
6.3.3. I accept that the matter of access to her children is not in the control of the respondent. However, I note that provisions for same have been made in accordance of a Court Order.
6.3.4. While I have no hesitation in acknowledging that the respondent's staff would most likely welcome better facilities and more resources for all of its patients, regardless of gender, I am satisfied that in the circumstances of this case, the complainant has not been treated in a manner that can be described as less favourable. The concerns raised by as report from a named authority, whilst noted by this Tribunal, were not supported by original evidence and could not be given any further weight. This Tribunal may only consider cases brought to it by individual complainants and must consider them pertaining to specific facts relating to the complainant's experience. What must be shown for such discriminatory treatment to be established, on the balance of probabilities, is that such treatment is less favourable to the complainant. Therefore, it must be noted that in certain circumstances, difference of treatment is justifiable in law because the treatment, while different, is not de facto less favourable.
6.3.5. I am satisfied that the security arrangements are done in accordance with clinical judgment based on the welfare of all the patients. I have not heard sufficient evidence to accept that male patients had or have more freedom than the female patients. Even if the complainant herself may be of the view that she is in a position to avail of lesser security, as a woman, I find that the security measures are in place in a manner that is objectively justified and the manner in which such aim has been achieved reasonable to the hospital environment.
6.4.5. Finally, it must be noted that this Tribunal has no jurisdiction in relation to section 3 of the Human Rights Act, 2003.
7. Decision
7.1. In accordance with Section 25(4) of the Equal Status Acts, 2000 to 2008, I conclude this investigation and issue the following decision. I find that the complainant has established a prima facie case of discrimination on the gender ground in terms of Sections 3(1) and 3(2)(a). This has been successfully rebutted by the respondent in reliance of section 16(2) of the Acts. Accordingly, the complainant's case fails.
_________________
Tara Coogan
Equality Officer
1 December 2010