Equal Status Acts 2000-2008
Equality Officer Decision
DEC-S2010-044
Ms. A (on behalf of her brother, Mr. B)
(represented by The Equality Authority)
-v-
A General Hospital
(represented by Conways Solicitors)
Keywords
Equal Status Acts 2000-2008 - Direct discrimination, Section 3(1)(a) - Disability Ground, Section 3(2)(g) - Reasonable Accommodation, Section 4(1) - Section 16(2)(a), exercise of a clinical judgment
Delegation under the Equal Status Acts, 2000-2008
This complaint was referred to the Director of the Equality Tribunal on 30th October, 2008 under the Equal Status Acts, 2000 to 2008. On 12th March, 2010, in accordance with her powers under Section 75 of the Employment Equality Acts, 1998 to 2008 and under the Equal Status Acts 2000 to 2008, the Director delegated the complaint to me, Enda Murphy, 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 to 2008 on which date my investigation commenced. As required by Section 25(1) and as part of my investigation, I proceeded to hearing on 4th August, 2010.
1. Dispute
1.1 This dispute concerns a claim by the complainant, Ms. A, that her brother, Mr. B, was discriminated against by the respondent on the grounds of his disability in terms of Sections 3(1)(a) and 3(2)(g) of the Equal Status Acts, 2000 to 2008 and contrary to Sections 4(1) and 5(1) of those Acts in terms of the manner in which he was provided with medical care and attention by the respondent.
2. Summary of the Complainant's Case
2.1 Section 20 of the Equal Status Acts states that, where a complainant, as defined under Section 21(1) of the Acts, is "unable, by reason of an intellectual or psychological disability, to pursue effectively a claim for redress under this Part" then "his or her parent, guardian or other person acting in place of a parent" is the complainant. Mr. B has an intellectual disability which renders him unable to pursue a claim for redress, as described in Section 20 of the Acts. Therefore, in accordance with that Section, his sister, Ms A, who acts as his guardian within the meaning of the Acts, is the complainant in this matter and will be referred to as such hereafter.
2.2 The complainant's brother, Mr. B, has Down Syndrome and as a consequence of his disability is very susceptible to pneumonia. He became very sick with pneumonia in 2002 and both his mother and his sister are very vigilant to ensure that there is no re-occurrence of this illness if at all possible. Mr. B became ill with breathing difficulties on the morning of 6th July, 2008 and was admitted to the Accident and Emergency Department of the respondent's hospital by ambulance with the complainant, Ms. A, at approximately 4 a.m. The specific discrimination that the complainant is alleging against the hospital is that the respondent through its employees improperly discharged her brother, Mr. B, from the A & E Department at approximately 7:45 a.m. on that morning.
2.3 The complainant, Ms. A, claimed that as they had arrived at the hospital by ambulance it was necessary for her to return home (some ten miles from the hospital) prior to Mr. B's discharge to obtain her car so that she could bring him home from hospital. The complainant also wanted to obtain clean clothing for Mr. B upon his discharge as the clothing he was wearing on admission to the A & E Department had become soiled following bouts of vomiting and diarrhoea. The complainant stated that she informed the respondent's nursing staff regarding the reason why she was leaving the hospital prior to her departure from the premises. The complainant had ordered a taxi from the hospital at 7 a.m. but as it had not arrived she proceeded to walk outside the hospital to look for a taxi. The complainant claimed that it was while she was away from the hospital that Mr. B was discharged by the Medical Senior Health Officer on call who had diagnosed him with an upper respiratory tract infection. The complainant claimed that Mr. B was left to wait in the reception area of the A & E Department for collection upon her return to the hospital. The complainant submitted that the respondent had put Mr. B in a wheelchair as he was too weak to stand, and the only clothing that he had on him was a disposable gown.
2.4 The complainant claimed that Mr. B was still suffering from nausea and diarrhoea upon discharge and she made a request to the nursing staff that he be kept in the hospital as he was obviously still very ill; however, a nurse on duty replied that "he had no business being here" and insisted that she put Mr. B into the taxi. The complainant stated that it became apparent on the journey home in the taxi that Mr. B was too ill to proceed on this journey. As a result of his condition it was necessary to call an ambulance during the course of this journey and Mr. B was returned to the respondent's hospital by ambulance at approximately 9 a.m. The complainant submitted that the fact Mr. B had to return to the hospital by ambulance approximately an hour after he had been discharged indicated that proper assessment was not made at the time of his discharge by the respondent and its employees. The complainant stated that Mr. B was subsequently admitted to the hospital where he was kept overnight until being discharged the following day i.e. 7th July, 2008.
2.5 The complainant submitted that the respondent's refusal to accede to her request that her brother, Mr. B, be kept in the hospital in circumstances where he was physically weak from a night of being ill and without any sleep constitutes a failure to provide reasonable accommodation to a person with a disability within the meaning of the Equal Status Acts. The complainant also submitted that the manner in which Mr. B was discharged from the A & E Department was discriminatory on the grounds of his disability. The complainant claims that the respondent did not follow its own recognised discharge procedures and guidelines in terms of the manner in which Mr. B was discharged from the A & E Department. The complainant submitted that the respondent was made fully aware that she was arranging transport yet it still proceeded to discharge Mr. B in her absence. The complainant claims that the respondent aggravated its discriminatory actions by discharging Mr. B in a wheelchair because he was too weak to walk or stand and with no clothing apart from a medical gown. The complainant submitted that by placing Mr. B in a wheelchair in the corridor in nothing more than a gown while she, as his carer, was away attempting to arrange clothing and transport for him amounted to inappropriate discharge planning and that these actions constituted a failure to provide reasonable accommodation within the meaning of section 4 of the Acts.
2.6 The complainant also claimed that various aspects of the medical care and attention which the respondent provided for Mr. B, both during the period that he attended the A & E Department on the morning of 6th July and during the period of time after he was admitted to the hospital ward on 7th July, was totally unacceptable. The specific complaints made by the complainant in this regard included the following: that the nursing staff failed to provide any assistance when Mr. B suffered episodes of vomiting and diarrhoea in the A & E Department; the respondent failed to make available shower facilities for Mr. B when he was re-admitted to the hospital on 7th July; the respondent's staff left Mr. B in isolation behind a curtain after he was admitted to the ward on 7th July; the respondent's staff showed absolutely no interest in Mr. B's well being and refused to put him on an intravenous drip on 7th July despite repeated requests to do so by the complainant, Ms. A; the respondent's staff refused to provide the complainant, Ms. A, with their names so that she could make a complaint to the Health Service Executive regarding the manner in which they treated Mr. B; the respondent wrongly prescribed an antibiotic for Mr. B upon his discharge from the A & E Department on 6th July.
3. Summary of the Respondent's Case
3.1 The respondent stated that Mr. B was brought to its A & E Department by ambulance on 6th July, 2008 at 4:07 a.m. as he was experiencing breathing difficulties. The respondent stated that Mr. B's condition was assessed (triaged) by a nurse almost immediately after his arrival in the A & E Department and that he was then assessed by a doctor within 30 minutes of arrival and sent for an x-ray. The respondent stated that the complainant, Ms. A, indicated at approx. 4:45 a.m. that she wished to take Mr. B home prior to the completion of the medical investigations which had been initiated by the respondent's medical staff. The respondent stated that nursing staff were informed by the complainant at approx. 5:45 a.m. that Mr. B had vomited and was incontinent of faeces whilst he rested in a cubicle in the A & E Department. The respondent stated that help was offered to the complainant to assist the clean up once the nursing staff were made aware of Mr. B's illness and incontinence, however she was quite insistent that she would clean him and refused any assistance offered.
3.2 The respondent stated that the complainant indicated to the nursing staff at approx. 7:00 a.m. that she was leaving the hospital premises, however she was informed by the nursing staff that this was not advisable as her brother, Mr. B, had not been discharged by a doctor at that juncture. The respondent denied that the complainant gave any indication that she was leaving the premises in order to collect her car or to obtain clothing for Mr. B. The respondent stated that Mr. B's condition was reviewed by a doctor (Dr. C) while the complainant was absent from the hospital and he certified that Mr. B was fit to be discharged from the A & E Department at approx. 7:30 a.m. The respondent stated that Mr. B was diagnosed with an upper respiratory tract infection and was prescribed a course of oral antibiotics for this condition. The respondent stated that it contacted the complainant on her mobile telephone to inform her that Mr. B had been certified fit for discharge as she was no longer on the hospital premises. The respondent stated that the purpose of this telephone call was to notify the complainant that Mr. B was ready to be discharged and it was not intended to apply any pressure or sense of urgency upon her to rush back to the hospital in order to collect him.
3.3 The respondent stated that Mr. B was placed in a wheelchair with a blanket around his waist and he was allowed to wait at the nurses station in the A & E Department until the complainant had returned to the hospital to collect him. The respondent stated that this course of action was in keeping with its normal practice when a patient is being discharged from the A & E Department. The respondent stated that Mr. B was discharged from the A & E Department at approx. 9:30 a.m. after the complainant had returned to the hospital to collect him. The respondent accepts that Mr. B vomited just prior to leaving the A & E Department, however it stated that he was offered an anti-emetic by one of the nurses after this episode of vomiting which was refused on his behalf by the complainant, Ms. A. The respondent denied that the complainant requested that Mr. B be re-admitted to the A & E Department after he had vomited and it stated that the complainant indicated at that juncture that she was happy to take the complainant home. The respondent also denied that one of the nursing staff replied to this request that "he had no business being here". The respondent submitted that Mr. B was discharged from the A & E Department at that juncture on the basis of a medical decision taken by a qualified doctor who was duly registered and licensed within the state.
3.4 The respondent stated that Mr. B was subsequently re-admitted to the hospital a short time later after his discharge from the A & E Department after he had become ill in the taxi on the way home. The respondent stated that Mr. B was admitted to a ward in the hospital where he was kept overnight and that he was discharged from the hospital the following day i.e. 7th July, 2008. The respondent stated that Mr. B's vomiting and diarrhoea had ceased prior to his discharge that morning and he was examined by a Consultant Physician and certified medically fit for discharge.
3.5 The respondent submitted that the complainant, Ms. A, was very aggressive and verbally abusive to members of the respondent's staff during the course of Mr. B's attendance at the hospital on 6th/7th July, 2008 and at one point it became necessary to call the Security staff to address the difficulties that arose in relation to her behaviour. The respondent submitted that it is always mindful of how stress can be a factor for relatives in such situations, however it stated that despite the best efforts of its staff to communicate with and placate the complainant, difficulties arose as a result of her inappropriate behaviour and attitude. The respondent submitted that any discriminatory treatment that the complainant may feel she experienced arose as a result of her own inappropriate behaviour and the resultant attempts of its staff to deal with her hostility.
3.6 The respondent denies that Mr. B was subjected to discrimination on the grounds of his disability or that it failed to provide him with reasonable accommodation within the meaning of section 4 of the Equal Status Acts. The respondent also denies the allegations that were made by the complainant (and outlined in para. 2.5 above) in relation to the manner in which Mr. B's medical treatment and care was administered by members of its staff. The respondent submitted that that there was no actual problem with the physical facilities within the hospital that were made available to the complainant and neither was there any question of him being refused access to these facilities on the grounds of his disability. The respondent submitted that Mr. B received the correct medical attention and that the relevant treatment protocols were adhered to at all times during the course of his attendance at the hospital on 6th/7th July, 2008.
3.7 The respondent submitted that given the enormous pressure on its resources it cannot accommodate requests by persons to be admitted to hospital for rest or indeed requests by patients who have been deemed fit to be released to remain in the hospital. The respondent submitted that the Equal Status Acts were not intended to force hospitals to accept people into its care that have been medically determined not to require hospitalisation. The respondent submitted that an independent medical decision was made to discharge Mr. B from the A & E Department on 6th July, 2008 from the care of the respondent and that the diagnosis in this case was incapable of being a discriminatory action within the meaning of the Acts.
4. Conclusions of the Equality Officer in relation to the substantive issue
4.1 The Equality Officer must first consider whether the existence of a prima facie case has been established by the Complainant. Section 38A 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 she can rely in asserting that prohibited conduct has occurred in relation to her. 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. The complainant's representative withdrew the complaint of victimisation at the oral hearing. In making my decision, I have taken into account all of the evidence, both written and oral, made to me by the parties to the case.
4.2 I have identified the following key questions which must be addressed in considering whether a prima facie case of discrimination has been established by the complainant in the present case:
1. Was Mr. B subjected to direct discrimination on the grounds of his disability within the meaning of section 5(1) of the Acts in terms of the manner in which his medical care and treatment was provided by the respondent during his attendance at the hospital on 6th/7th July, 2008?
2. Was Mr. B subjected to discrimination on the grounds of his disability within the meaning of section 4 of the Acts in terms of the respondent's alleged refusal to accede to the complainant's request that he be kept in the hospital following his discharge from the A & E on the morning of 6th July, 2008?
3. Was Mr. B subjected to discrimination on the grounds of his disability within the meaning of section 4 of the Acts in terms of the manner in which he was discharged from the respondent's A & E Department on the 6th July, 2008?
Discriminatory Treatment
4.3 In the present case, Mr. B has Down Syndrome and I am therefore satisfied that he is a person with a disability within the meaning of section 2(1) of the Equal Status Acts. In order for the complainant to raise an inference of direct discrimination in the circumstances of the present case, it must be demonstrated that the treatment Mr. B received was less favourable than that which would have been afforded to another person in similar circumstances who either did not have a disability or who had a different disability. The complainant has claimed that various aspects of the medical care and attention which the respondent provided for Mr. B, both during the period that he attended the A & E Department on the morning of 6th July and during the period of time after he was admitted to the hospital ward on 7th July, was totally unacceptable (and these issues have been outlined in para. 2.5 above). In considering this issue, I am satisfied that Mr. B was afforded access to the respondent's hospital facilities and was provided with medical treatment on the same terms as a person without a disability or with a different disability would have been in similar circumstances. The complainant has not adduced any evidence from which I could reasonably conclude that Mr. B was subjected to less favourable treatment on the grounds of his disability in terms of the manner in which his medical treatment and care was provided by the respondent. In the circumstances, I find that the complainant has failed to establish a prima facie case of direct discrimination on the grounds of disability contrary to the provisions of section 5(1) of the Equal Status Acts.
Reasonable Accommodation
4.4 In the case of a complaint being made on the disability ground, consideration must be also given to the provision of reasonable accommodation. Section 4 of the Equal Status Acts states as follows"4-(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 difficulty for the person to avail himself or herself of the service.
4-(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.."
This means that the Act requires the complainant to show, in the circumstances of this case, that the respondent did not to everything it reasonably could do to accommodate Mr. B's needs as a person with a disability by providing him with special facilities to access its services.
Issues regarding the alleged refusal of the respondent to accede to the complainant's request that he be kept in the hospital
4.5 Firstly, I will consider the issue regarding the alleged refusal of the respondent to accede to the complainant's request that Mr. B be kept in the hospital following his discharge from the A & E on the morning of 6th July, 2008 which she claims amounted to a failure to provide reasonable accommodation within the meaning of section 4 of the Acts. The complainant's legal representative clarified by way of submission during the course of the oral hearing that the alleged discriminatory action in this regard was not based on the decision of Dr. C to discharge Mr. B from the A & E on the morning of 6th July, 2008 but rather it was the refusal of the nursing staff to accede to her request that Mr. B be kept in the hospital after he had vomited in the reception area following his discharge from A & E.
4.6 In considering this issue, I note that the respondent disputes the complainant's evidence that she actually requested the nursing staff to keep Mr. B in the hospital after he had vomited in the reception area following his discharge by Dr. C. Ms. D, Clinical Nurse, gave evidence on behalf of the respondent, that the complainant indicated she was happy to take Mr. B home at that juncture and that she also refused the offer of an anti-emetic drug (on behalf of Mr. B) after he had vomited in the reception area. Having regard to the evidence adduced, I have found the respondent's evidence to be more compelling regarding this issue and I find that it represents a more accurate account of the events.
4.7 Notwithstanding my finding in relation to the issue of whether or not this request was actually made by the complainant, I am also obliged to consider whether the decision by the respondent's staff (i.e. the nursing staff on duty) to allow Mr. B to go home on the morning of 6th July, 2008 following his discharge from the A & E constitutes a failure to provide reasonable accommodation within the meaning of section 4 of the Acts. I am of the view that the alleged discriminatory action in this regard must be considered in the context of the overall treatment and assessment of Mr. B's medical condition by the respondent during his attendance at the A & E on that morning. Having regard to the evidence adduced, it is clear that Mr. B was certified fit for discharge from the A & E Department by Dr. C, a Medical Doctor, on the morning of 6th July, 2008 i.e. shortly before he experienced the episode of vomiting in the reception area after his discharge. It is also clear that Dr. C did not deem it appropriate for Mr. B to be admitted to the hospital despite the fact that he had already experienced an episode of vomiting whilst his condition was being investigated during the period of his attendance in A & E.
4.8 Section 16(2) of the Equal Status Acts states:
"16(2) Treating a person differently does not constitute discrimination where the person -
(a) is so treated solely in the exercise of a clinical judgement in connection with the diagnosis of illness or his or her medical treatment"
Having regard to the aforementioned provisions of the Acts, it is therefore clear that treating a person differently while exercising clinical judgement in connection with that person's treatment cannot constitute discrimination under the legislation. I am satisfied that the decision by Dr. C to discharge Mr. B from the A & E was taken in the exercise of his clinical judgement having carried out a thorough assessment and diagnosis of his medical condition. I am therefore satisfied that the decision by the respondent to discharge Mr. B at that juncture cannot be construed as a discriminatory action under the Equal Status Acts in the circumstances of the present case. Accordingly, I find that the respondent did not fail in its obligations in accordance with the provisions of section 4 of the Equal Status Acts in relation to this aspect of the complaint.
Issue regarding the manner in which Mr. B was discharged from the A & E Department
4.9 The next issue that I must consider relates to the complainant's claim that the manner in which Mr. B was discharged from the A & E Department constitutes a failure by the respondent to provide reasonable accommodation within the meaning of section 4 of the Acts. It was accepted by both parties that Mr. B was discharged from the A & E whilst the complainant was absent from the hospital building on the morning of 6th July, 2008. Again, there is a conflict in the evidence of the parties regarding the precise events that occurred prior to the discharge of Mr. B. The complainant, on the one hand, stated that she had informed the nursing staff that she was leaving the hospital prior to Mr. B's discharge in order to go home to collect her car and to obtain fresh clothing for him. The respondent, on the other hand, accepts that the complainant indicated that she was leaving the hospital but it denies that she informed staff regarding the reason for her departure. The respondent stated that it informed the complainant when it became aware of her intention to leave the hospital that this course of action was not advisable as Mr. B was waiting to be seen by a doctor prior to discharge at that juncture.
4.10 Having regard to the evidence adduced, I have found the respondent's evidence to be more compelling and I am satisfied that it represents a more accurate account of events. I am satisfied that the complainant left the hospital of her own volition prior to Mr. B's discharge from the A & E despite being advised by the respondent's nursing staff not to do so. Furthermore, I am satisfied that the reason the respondent contacted the complainant on her mobile phone following her departure was to inform her that Mr. B had been deemed medically fit for discharge from the A & E and that this communication was not intended to apply any pressure or sense of urgency upon her to rush back to the hospital in order to collect him.
4.11 The complainant has submitted that the respondent was in breach of its own discharge procedures and that guidelines were not followed correctly when Mr. B was being discharged. I accept the respondent's evidence that the discharge procedures referred to by the complainant relate to discharge procedures for patients who have been admitted to the hospital and that these procedures do not apply to patients who are being discharged from the A & E Department. It is clear from the evidence adduced that a decision was taken by a Medical Doctor prior to Mr. B's discharge from the A & E on the morning of 6th July, 2008 that he did not require admission to the hospital at that juncture. Having regard to the totality of the evidence adduced, I cannot accept the complainant's contention that the manner in which Mr. B's discharge from the A & E was effected on this occasion amounted to a failure to provide reasonable accommodation within the meaning of section 4 of the Acts. Accordingly, I find that the respondent did not fail in its obligations in accordance with the provisions of section 4 of the Equal Status Acts in relation to this aspect of the complaint.
5. Decision
5.1 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 failed to establish a prima facie case of discrimination on the disability ground in terms of Sections 3(1) and 3(2)(g) of the Equal Status Acts and contrary to sections 4(1) and 5(1) of those Acts. Accordingly, I find in favour of the respondent in the present case.
Enda Murphy
Equality Officer
7th September, 2010