DEC-S2010-002 - Full Case Report

Equal Status Acts 2000 - 2008

Equality Officer Decision

DEC-S2010-002

 A Couple

V

The Intercountry Adoption Services

 Date of Issue   7 January 2010

Key words

Equal Status Acts -   Direct discrimination, section 3(1)(a)   -     Disability ground, section 3(2)(g)  and section 4 -     Application for a Declaration of Eligibility and Suitability to Adopt  -   Victimisation , section 3(2)(j)

1          Delegation under the Equal Status Acts

The complainants referred a claim to the Director of the Equality Tribunal under the Equal Status Acts, 2000 -2004. On the 25 July 2006, 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 myself, Brian O'Byrne, 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, 2000-2008 on which date my investigation commenced.

As proceedings were still ongoing before the Adoption Board in 2007 and 2008, the Tribunal acceded to requests during this period from the complainants to defer the equality hearing pending the outcome of those proceedings. As required by 25(1) and as part of my investigation,  the case eventually proceeded to hearing on 29 October 2009.

2          Dispute

This dispute concerns a claim by the complainants that they were discriminated against on the disability ground by the Intercountry Adoption Services (ICAS) when  negative recommendations were made to the Adoption Board with regard to their application for a Declaration of Eligibility and Suitability to Adopt. The complainants maintain that the manner in which the female applicant's medical condition was assessed by the ICAS constituted less favourable treatment, contrary to the provisions of the Equal Status Acts.

The complainants also claim that they suffered victimisation at the hands of the ICAS. They claim that, having sent a formal notification to the respondents to the effect that an equality complaint was being considered and having submitted FOI requests in relation to their case, that the respondents purposely and deliberately delayed their case further.

The respondents deny the allegations that the couple were discriminated against and victimised and state that their application was considered and decided upon in accordance with standard procedures laid down for assessment of such cases.

3    Summary of Hearing

3.1        The Hearing of this complaint was held on 29 October 2009. The Hearing was attended by the complainants, the respondents and the respondents' representative. At the Hearing, both parties provided evidence with regard to the background to the complaint and there was general agreement between the parties that the facts of the case were as follows:

·         In 1998, the couple applied to the ICAS for approval to adopt a child. Their application was successful, resulting in the Adoption Board issuing a Declaration of Eligibility and Suitability to Adopt in October 2000.

·         At that time, the female applicant suffered from rheumatoid arthritis and consequent kidney amyloidosis but, having submitted reports from her consultants, she was deemed sufficiently fit to adopt and care for a child.

·         In November 2001, the couple adopted an 11 month old boy from the Ukraine. The child is now 9 years old and the couple say that they have had no problem in looking after him

·         In 2001, the Department of Health and Children introduced stricter criteria for adoptions. The new Standardised Framework identified five standards that had to be met before a Declaration could be granted. The standard with regard to an applicant's health status required that there was a reasonable expectation that they would continue to enjoy good health and be able to fulfill their duties to the child over its period of growing up.

·         In November 2002, the couple applied again to be assessed for a further adoption and the assessment proper commenced in May 2003.

·         By that point, the ICAS had engaged a dedicated Medical Advisor, Mr Paul Gueret to assess the health status of prospective adoptive parents. Dr Gueret was described as an expert in the field of life expectancy and in estimating morbidity and mortality.

·         In the couple's case, Dr Gueret sought fresh reports from their consultants and conducted a literature search on the internet on the mortality and morbidity experience associated with the female applicant's condition. In January 2004, he concluded that a worldwide poor prognosis for someone with her condition meant that he was obliged to issue a negative recommendation to the ICAS with regard to her suitability to adopt.

·         Regardless of whatever conclusion they arrive at, the ICAS is still required to submit applications to the Adoption Board for decision. In light of Dr Gueret's views in this case and on the advice of the Board's own Medical Advisor, the Adoption Board decided in May 2004 that the application should not proceed any further.

·         The applicant couple then decided to appeal their case and submitted several updated positive reports from their principal consultant to the ICAS and the Adoption Board between May and November 2004.

·         In 2005, the Adoption Board agreed to hear the appeal and first met separately with Dr Gueret and then the applicant couple. The appeal was eventually heard on 13 September 2005 but the couple were not invited to attend.

·         The couple also state that at no time in this prolonged process were they ever given the opportunity to meet directly with Dr Gueret.

·         Having considered the Appeal and having acquired their own medical reports on the female applicant's condition, the Adoption Board wrote to the ICAS on 19 September 2005 stating:

"The Board considered this case at its meeting on the 13th September 2005. The Board decided that the applicants should be assessed further."

·         The case was then referred back to the ICAS who decided to seek fresh updated reports from the consultants and doctors who had previously been involved. The couple state that all of the fresh reports submitted pointed towards a positive prognosis from the complainant's perspective. These were all received by 13 December 2005, at which point the file was referred back to Dr Gueret for further assessment.

·         In April 2006, Dr Gueret again decided to issue a negative recommendation in the couple's case on medical grounds.

·         The couple state that they were never given access to Dr Gueret's medical reports despite having asked for them on several occasions. It was only when they applied under FOI that they were eventually given his reports in July 2006.

4          Conclusions of the Equality Officer

4.1       In cases such as this, the burden of proof lies with the complainant who, in order to demonstrate that a prima facie case of discrimination exists, must establish facts from which it may be presumed that prohibited conduct has occurred. On establishment of these facts, the burden of proof then shifts to the respondent who, in order to successfully defend his case, must show that his actions were driven by factors which were non-discriminatory.

In refuting the allegation of discrimination, the respondents refer to section 14 of the Equal Status Acts which provides that:

Nothing in this Act shall be construed as prohibiting the taking of any action that is required by or under any enactment or order of a court

In relying on this Section, the respondent submits that its actions in this matter are required under Sections 3(1) and 3(2) of the Child Care Act 1991 where:

Section 3(1)  states  "It shall be a function of every health board to promote the welfare of children in its area who are not receiving adequate care and protection", and

Section 3(2) states  "In the performance of this function, a health board shall .... regard the welfare of the child as the first and paramount consideration".

In considering the claim that the respondent's actions constituted an action that is required under

Sections 3(1) and 3(2) of the Child Care Act 1991 and is, therefore, not prohibited by the Equal Status Acts, I consider that this constitutes an attempt to place an over-reliance on very general provisions contained in the Child Care Act in order to circumvent the anti-discrimination provisions intended under Section 14 of the Equal Status Acts.  Accordingly, I find that I cannot accept this argument.

The respondent also claims that they are required to assess suitability for adoption in accordance with Section 13 of the Adoption Act 1952 which states

" (1) The Board shall not make an adoption order unless satisfied that the applicant is of good moral character, has sufficient means to support the child and is a suitable person to have parental rights and duties in respect of the child.

(2) Where the applicants are a married couple, the Board shall satisfy itself as to the moral character and suitability of each of them. "

In considering the claim that the respondent was acting as required under the provisions of Section 13 of the Adoption Act 1952, and is therefore exempted under Section 14 of the Equal Status Acts,  I find that this again constitutes an attempt to place an over-reliance on very general provisions contained in Section 13 of the Adoption Act 1952. The complaint before me revolves around the manner in which the complainants' suitability to adopt was assessed and this is an action that is not specifically prescribed in the Adoption Act 1952.  

4.2             In the case before me, the  female applicant claims that she was discriminated against by the Intercountry Adoption Services on the grounds of her disability when she and her husband received a negative recommendation from the ICAS with regard to their suitability to adopt.

Section 3(2)(g) of the Equal Status Acts describes the disability ground as follows:

that one is a person with a disability and the other is not or is a person with a different disability (the "disability ground")

Section 4 of the Equal Status Acts provides that:

(1) For the purposes of this Act discrimination includes a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities, if without such special treatment or facilities it would be impossible or unduly difficult for the person to avail himself or herself of the service.

(2) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.

4.3       In this particular case, in contending that they were treated less favourably than the manner in which a female applicant with a different disability would have been treated, the complainants are essentially introducing a hypothetical comparator into the equation. In support of their case, the complainants point to Dr Gueret's own admission that he was not an expert in the field of rheumatoid arthritis or renal amyloidosis (the female applicants medical condition) and his failure to get a "peer review" of her case from another qualified medical consultant.

4.4       In considering whether the female applicant in this case suffered discrimination, I have noted the following:

·        Dr Gueret, on his own admission, is not an expert on rheumatoid arthritis or renal amyloidosis. Dr Gueret is a recognised specialist in occupational medicine.

·        Dr Gueret has stated that his decision on renal amyloidosis was primarily influenced by internet research

·        Dr Gueret never personally met or contacted the applicant couple

·        Dr Gueret, it would appear, never spoke directly to any of the medical consultants who had provided documentary evidence supporting the couple's application, to discuss the specific nature of the female applicant's medical condition

·        The applicant couple were not provided with copies of Dr Gueret's medical assessments to assist them in their appeals (these documents were only released under FOI in 2006)

·        The respondents state that their file on the matter was with the Adoption Board from 2 April 2004 until its return on 4 October 2005. During this time, updated reports from Prof Bresnihan were sent to Dr Gueret and the ICAS but it is unclear whether they were eventually associated with the case file.

·        When the case eventually went before the Adoption Board in September 2005, the respondents state that Dr Gueret met the Adoption Board and gave evidence where he explained his findings.

·        On 13 September 2005,  the Board, having considered Dr Gueret's  evidence and having sought and obtained the opinions of other medical specialists, decided not to make a final decision but instead decided that "the applicants should be assessed further". This decision was communicated to the parties by letter dated 19 September 2005.

·        The ICAS, on being told by the Adoption Board "that the applicants should be assessed further", gave no apparent consideration to engaging a different medical expert but referred the matter straight back to Dr Gueret .

·        When the case was referred back to Dr Gueret for further assessment in late 2005, it would appear that he was not given access to the advice and reports obtained by the Adoption Board. This is substantiated by Dr Gueret himself in a letter dated 13 May 2009 in which he says:

"The problem that caused me most concern when I reviewed the file in 2004-2006 was her renal function. It was mild-moderately impaired. Review of the scientific literature at the time suggested that survival studies from this disease (secondary renal amyloid) were not good. I am now aware that some of the studies I quoted at the time were called into question by other advisors to the adoption board. I did not have sight of these objections nor was I informed of the basis on which these objections were made. Indeed, I was not informed of the basis for any contra-argument, which I would have welcomed."

4.5       In considering the case before me, I find that I have a grave concern over the manner in which the ICAS dealt with the case following the Adoption Board's decision of 13 September 2005. I consider, from the evidence provided,  that it is clear that the Adoption Board had reservations about Dr Gueret's recommendation based on their own discussions with him and on the opinions they had received from other specialists and their own Medical Adviser.

However, when the matter was referred back to the ICAS, the file was simply returned to Dr Gueret for further assessment without, it would now appear, the benefit of access to the Adoption Board's own medical reports and advice.

4.6       Under the provisions of the Equal Status Acts, discrimination is deemed to have occurred where a person with a disability is treated less favourably than a person with a different disability. As I have not been provided with any detailed information as to how the ICAS has treated other specific applicants with different disabilities, for the sake of completeness, I consider that it is worthwhile at this point to introduce a hypothetical comparator to assist in fully evaluating the circumstances of this case.

4.7       The Equal Status Acts provide for the use of a hypothetical comparator in Section 3(1)(a) where it states that discrimination shall be taken to occur "where a person is treated less favourably than another person is, has been or would be treated in a comparable situation."

4.8       In this particular case, I consider that it is appropriate and beneficial to draw a hypothetical comparison between the treatment afforded the female applicant in this case (with rheumatoid arthritis and renal amyloidosis) and an applicant with a different disability .

If the female applicant had presented with a condition on which Dr Gueret was an expert, I consider that Dr Gueret would have been the ideal choice to assess her case from start to finish. However, while Dr Gueret is undoubtedly a consultant of high repute and eminently capable of assessing patients with a wide range of disabilities and conditions, on his own admission, he is not an expert in the fields of rheumatoid arthritis and renal amyloidosis. 

Yet the ICAS does not appear to have taken this fact into account when arranging for the reassessment requested by the Adoption Board.     Accordingly, I consider that the ICAS's decision to refer the matter back to Dr Gueret, instead of to a specialist in rheumatoid arthritis and renal amyloidosis, constituted discrimination in that it resulted in the female applicant, as a person with a disability,  receiving less favourable treatment than a "a person with a different disability" would have received contrary to Section 3(1)(a) and Section 3(2)(g) of the Equal Status Acts.

4.9       As stated above, in light of the Adoption Board's recommendation in this case, I consider that the onus was on the ICAS to source a separate independent opinion of the female applicant's condition from a specialist or specialists in the fields of rheumatoid arthritis and renal amyloidosis and I find that its failure to do so also constituted "a refusal or failure by the provider of a service to do all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities" contrary to the provisions of  Section 4 of the Equal Status Acts

With regard to the allegation of victimisation, I have deliberated at length on the evidence before me and find that, while there were delays in the process, that their is insufficient evidence to support the claim that these delays constituted a deliberate attempt to victimise the complainants.  

5          Decision

5.1        I consider that the ICAS, in referring the matter back to Dr Gueret rather than engaging a specialist in the fields of rheumatoid arthritis and renal amyloidosis to review her case, treated the female complainant less favourably than they would have treated a female applicant who had presented with a different disability.

Accordingly, I find that the ICAS discriminated against the female complainant and also failed to provide her with reasonable accommodation, contrary to the provisions of  Section 3(2)(g)  and Section 4 of the Equal Status Acts.

5.2        As the principal objective of the complainants in this case would appear to be the advancement of their adoption application, I do not consider that monetary compensation is appropriate in this instance.

Instead, I order that the ICAS engage a different independent Medical Advisor with expertise in the medical conditions affecting the female complainant to completely reappraise the couples application from a medical perspective with a view to making a fresh recommendation to the Adoption Board . In order to expedite this process, I would suggest that all other measurements of the couple's suitability to adopt should be deemed to have been already met and they should not be asked to submit any further updated  non-medical documentation unless deemed to be absolutely essential.

The engagement of a Medical Adviser should be done in consultation with the complainants and the Adoption Board and the final choice should be of an individual with whom the complainants are happy to engage. 

All parties are asked to engage actively and positively in this process with a view to having a final recommendation before the Adoption Board in good time to allow for a final decision to be made by 30 June 2010.

Brian O’Byrne

Equality Officer

7 January 2010