Equal Status Acts
Decision No. DEC-S2010-033
Mary Dalton
-V-
Department of Health and Children
Key words
Equal Status Acts - Section 3(2)(g), Disability ground - Section 3(2)(a) Gender Ground - Section 3(2)(b), Marital Status Ground - Section 4(1), Reasonable Accommodation - complainant seeks to impose obligation - Section 3(1)(c), indirect discrimination - Section 5(1), service provider
1. Delegation under the relevant legislation
1.1. On 3rd January, 2006, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On the 25th September, 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, on which date my investigation commenced.
1.2. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on Thursday, 20th May, 2010. (An earlier hearing had been adjourned at the request of the complainant in light of exceptional circumstances that were outlined in her adjournment request). Both parties were in attendance at the hearing. Due to the fact that the submission from the respondent was provided the day before the hearing, and in the interests of natural justice, an opportunity was provided to the complainant to respond to these submissions in writing after the hearing. This response was received on 2nd June, and a further letter was received from the respondent on 22nd June.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that she was discriminated against by the respondent on the Disability, Gender and Marital Status grounds contrary to the Equal Status Acts in terms of Sections 3(1)(a) and Sections 3(2)(a), (b) and (g) and Section 4(1) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated her less favourably in its treatment of her in response to a complaint she made against the H.S.E., which was in itself made on foot of a complaint against a G.P.
3. Summary of the Complainant's Case
3.1. The complainant stated that she has a disability and has been in receipt of an invalidity pension since 1990 in that regard. She said that she has been diagnosed with ME and endochrine failure. In addition, she has had two hip replacement operations and back surgery. She also has scoliosis and has had an immune system failure. She stated that she also suffers from depression and insomnia. She objected to her disability being questioned by the respondent.
3.2. The complainant stated that, in March 2001, she made a complaint to the H.S.E. against a named G.P. ("the G.P.") but that this complaint was left unaddressed by both the H.S.E. and the respondent. In that regard, she outlined the contact she had with the H.S.E. with regard to this complaint and that she was not satisfied with the response she ultimately received, some 18 months after making her initial complaint. Thereafter, she started petitioning the respondent to look at the H.S.E. and to "get some justice going". She stated that the respondent has not responded to her petitioning and has not yet resolved the issue. In that regard, she stated that she has been stonewalled by the H.S.E. and the respondent, despite, inter alia, getting PQ's put into the Dail in relation to the matter.
3.3. The complainant agreed that she was informed by the respondent that the appropriate forum for taking her complaint was to the Medical Council. She stated in response that the respondent had a duty of care to her and it should not matter whether the Ombudsman or Medical Council was responsible for her complainant; it should do something about it anyway because of that duty of care. She stated that the respondent was adopting a "Nuremberg defence" by saying that its hands are tied. She said that the H.S.E. was severely endangering the public with its codes of practice and she is alarmed that the respondent menaces people they are behaving badly towards. In short, she stated that the respondent should oversee the H.S.E. board and that responsibility devolves upwards towards it in that regard.
3.4. The complainant stated that she returned her medical card on principal on the basis that the H.S.E. and the respondent were caring bodies and so should deal with her complaint in a caring manner. She stated that she handed it back as she found it dangerous to accept a medical card that was administered by crooks. She pointed out that not having a medical card was a problem that endangered her life and health but that she did not want to engage with a disreputable body. She said she would have taken her medical card back if her case had been investigated.
3.5. The complainant stated that the respondent discriminated against her because it left her powerless and that she was vulnerable in this regard because she was not married, because she had a disability and because she was a woman. She said that the connection between her treatment and her gender was achieved through a process of elimination of every other reason for the respondent's treatment of her. She said it was a fact of Irish society that a different attitude was taken towards women without husbands. She said that this was because Ireland was backward and primitive and it allowed the H.S.E. to attack and half-kill vulnerable people.
4. Summary of the Respondent's Case
4.1. The respondent submitted that the complainant must demonstrate that her condition constitutes a disability within the meaning of the Equal Status Acts. It submitted that she must also demonstrate the nature and effect of that disability for it to be properly assessed by the Tribunal. It submitted that, for example, where paraplegia is a sufficient description in a case involving wheelchair access to premises, a disease like M.E., if it is capable of constituting a disability within the meaning of the Acts, will not always have a disabling effect. In addition, the ways in which it affects an individual will vary (not only from person to person but in the same person over time). It said that the complainant was arguing that because she had a disability and in the absence of any other logical reason for the treatment in question, that the disability must be the cause of the treatment. It stated that this cannot establish a prima facie case and it is entirely appropriate for it to query her disability in this context. Subsequent to the hearing, it stated that its principal submission in this regard is that there is no connection between her medical difficulties and the treatment she alleges.
4.2. The respondent stated that the complainant began corresponding with the H.S.E. in 2001. It stated that this correspondence culminated in her receiving a letter from an officer in the H.S.E. in October 2001. However, it stated that voluminous correspondence with both the respondent and the H.S.E. continued thereafter. It noted that the letters from the complainant in that regard were increasingly rude and anyone asked to deal with her complaint became "part of that story".
4.3. The respondent said that, ultimately, the correspondence and the case comes back to the same point viz. that the respondent had no involvement with the conduct of the G.P. and in so far as it carried out an investigation (which it described as "an investigation with a small i"), it was into whether the H.S.E. had dealt with the matter in an appropriate fashion. It stated that the suggestion that there is a formal procedure and the respondent had an appellate function in relation to a complaint of this particular kind is simply not correct. Instead, it said that it had "used its good offices" with regard to the complaint, and an officer of the respondent gave evidence to that effect. She added that the respondent had told the complainant that it had no role in overseeing the H.S.E. in this context.
4.4. The respondent stated that it had advised the complainant that the proper place for making a complaint of the nature of the one in question was before the Medical Council as it was not related to the financial aspect of the doctor-patient relationship (i.e. the General Medical Scheme (GMS) aspect). It stated that the relationship between the H.S.E. and the complainant in that regard arises from her medical card status. The respondent stated that the complainant could also have taken the matter to the Ombudsman.
4.5. The respondent stated that the complainant was suggesting that the mere occurrence of ill-treatment proves that such ill-treatment occurred because she is a person with a disability. It submitted that this is an entirely circular and fallacious arguments. It stated that, even if one was to assume that she had been mistreated by the respondent, which it vehemently denied, the complainant was unable to state the causal connection between the treatment that is alleged to be discriminatory and her disability and/or gender and/or marital status. It submits that there is, in fact, no evident difference in this treatment and the complainant has failed to establish a prima facie case in that regard.
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. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.2. The complainant has made a complaint on the marital status, gender and disability grounds, and I must consider whether the respondent has discriminated against her on any or all of those grounds. As she has made a complaint on the disability ground, I must also look, in accordance with Section 4(1) of the Acts, at whether the respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), I must take into account whether the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent. In making my decision in this case, I have taken cognisance of all the oral and written submissions made by the parties.
5.3. In the Acts, "disability" means, inter alia, the presence in the body of organisms causing chronic disease or illness. I am satisfied, in that context at the very least, and based on her evidence both oral and documentary, that the complainant had a disability within the meaning of the Acts at the time in question.
5.4. The principal thrust of the complainant's case is that the respondent should have formally investigated her complaint against the H.S.E. and overturned its decision in relation to the G.P. However, I am satisfied that the respondent has no authority over the H.S.E. in relation to this or any other aspect of the present complaint. Certain power to deal with complaints against G.P.'s is devolved to the H.S.E in relation to matters arising from the medical card scheme. Otherwise, the Irish Medical Council is the relevant body for making such complaints; if the Medical Council would not hear the complainant's complaint, that is nothing to do with the respondent. Furthermore, the respondent cannot be held responsible for any failure on the part of the complainant to take the matter to the Ombudsman, if that was a suitable approach. In making this complaint in the terms in which she did, then, I am satisfied that the complainant seeks to impose an obligation upon the respondent as that obligation does not exist in reality. I have no authority to impose such an obligation.
5.5. The complainant also alleges that, in so far as the respondent did anything for her, it discriminated against her in its general treatment of her. It is clear that what the respondent did do was try to assist her, in an informal manner, in resolving her dispute with the H.S.E. It went out of its way to do so. Quite apart from the fact that it was under no obligation in that regard, I do not see how the respondent would have treated the complainant any differently if she was married, single, did not have a disability, or had a different disability. I also note that the complainant did not make any claim with regard to Section 4(1) of the Acts. I am satisfied that there was no obligation on the part of the respondent to provide reasonable accommodation in any event.
5.6. The complainant also suggests that there was some form of indirect discrimination carried out by the respondent in that its treatment of her forced her to return her medical card in protest. However, Section 3(1)(c) of the Acts requires indirect discrimination to flow from a provision implemented by a respondent. There is no such provision in this case; the hardship caused to the complainant arose as a consequence of her own action which she freely undertook under no duress from the respondent, or anyone else for that matter. In any event, any such provision would have to have been made by the H.S.E. and not by the respondent, who would have had no authority to do so.
5.7. In short, I am satisfied that the communication between the parties to this complaint related solely to the respondent's efforts to defuse the complainant's dispute with a third party, the H.S.E. In that regard, I am satisfied the respondent would have treated someone without a disability or with a different disability, or someone of a different gender or marital status, in the same manner as it treated the complainant. In any event, it is not responsible for the alleged discrimination suffered by the complainant in relation to the G.P. and/or the H.S.E. and so, in all the circumstances of the present complaint, it was not providing the complainant with any service within the meaning of Section 5(1) of the Acts. Therefore, the complainant has therefore failed to establish a prima facie case of discrimination on any of the grounds alleged and I do not need to consider the matter any further.
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 the complainant has failed to establish a prima facie case of discrimination on the gender ground in terms of Sections 3(1)(a), 3(2)(a) and Section 5(1) of the Equal Status Acts.
6.3. I find that the complainant has failed to establish a prima facie case of discrimination on the marital status ground in terms of Sections 3(1)(a), 3(2)(b) and Section 5(1) of the Equal Status Acts.
6.4. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1)(a), 3(2)(g) and Section 5(1) of the Equal Status Acts.
6.5. Accordingly, the complainant's case fails.
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Gary O'Doherty
Equality Officer
2 July 2010