Equal Status Acts, 2000-2008
Decision No. DEC-S2010-046
A Separated Complainant
-v-
A Hospital
Key words
Equal Status Acts - Section 3(2)(b), Marital Status ground - Section 3(2)(c), Family Status ground - Section 3(1)(c), indirect discrimination - Separated Person - Consent in relation to a minor - Provision of information relating to minor - Custodial parent - Guardianship of Infants Act - Order under Section 27(1)(b)
1. Delegation under the relevant legislation
1.1. On 10th January, 2008, the complainant referred a claim to the Director of the Equality Tribunal under the Equal Status Acts. On 18th January, 2010, 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. As required by Section 25(1) and as part of my investigation, I proceeded to hearing in Dublin on 24th June, 2010. Additional documentation was also sought from the respondent after the hearing and this was provided on 2nd July, 2010.
2. Dispute
2.1. The dispute concerns a complaint by the complainant that he was discriminated against by the respondent on the marital status and family status grounds contrary to the Equal Status Acts in terms of Sections 3(1)(a), 3(1)(c) and Sections 3(2)(b) and 3(2)(c) of the Equal Status Acts and contrary to Section 5(1) of the Equal Status Acts in that the respondent treated him less favourably by failing to obtain his consent in operating on his daughter and in requesting him to go through a solicitor in order to obtain information relating to his daughter.
3. Summary of the Complainant's Case
3.1. The complainant is the father of a child, Z, and is separated from Z's mother (hereinafter referred to as "the Mother") by way of an order of Judicial Separation.
Submissions in relation to consent and ancillary matters
3.2. The complainant submitted that Z had a tonsillectomy performed by a consultant, ("the Consultant"), at the respondent hospital. He submitted that this operation was carried out without his knowledge, approval or consent. He stated that the Mother signed a consent form which he was not asked to sign. He submitted that as a married (sic) father he should have been consulted prior to the operation as his consent is required under s.6 of the Guardianship of Infants Act 1964. He stated that his position as legal guardian and to act on Z's behalf was denied to him and was, therefore, an act of discrimination. He submitted that by allowing the performance of a tonsillectomy on Z without his consent, the respondent discriminated against him on the grounds of family status, as a parent of a child, and on the grounds of marital status, as a separated father.
3.3. At the hearing, the complainant also stated that the policy and practice of seeking consent from one parent only was also discriminatory. In that regard, following a question from the Tribunal, he clarified that he was claiming indirect discrimination on that basis.
3.4. The background to the complaint is that the complainant stated he was told in October 2007 that Z had been brought to hospital for an operation for a tonsillectomy. He said that he only found out that the respondent hospital was the location for the operation after discovering Z's medical bracelet from the time she had the operation, some two weeks later, as the Mother refused to provide him with that information. The complainant submitted that he later discovered that the Consultant had accepted Z as a patient and operated on her in the respondent hospital without a written referral from a GP. He stated that he contacted the Consultant who told him what had happened in relation to the operation, and how Z had presented to him. The complainant said that the Consultant was under the impression that Z had been referred by a particular G.P. but that this G.P. confirmed that she had not made any such referral and neither had Z's actual G.P.
3.5. The complainant submitted that the Consultant indicated that the Mother had informed him that Z had been having problems with severe snoring and choking at night. However, the complainant submitted that Z displayed no such symptoms while she stayed with him. He submitted that if the respondent had sought his consent, it would have obtained information vis-à-vis Z, through her actual G.P. which, the complainant submits, would have had an influence on their practice in relation to her. In support of his case, the complainant submitted to the Tribunal guidelines recently adopted by the HSE following a complaint he made with regard to an unrelated incident involving Z and a separate organisation.
3.6. The complainant also submitted that a form had been signed by the Mother in which she agreed to the retention of organs from Z for future testing without his consent. In his submissions, he referred to the "scandal where the failure to seek consent of parents for the retention of their children's organs by Public Hospitals caused outrage". He contended that this was also an act of discrimination.
3.7. The complainant also submitted that the policy of seeking consent from one parent only was indirectly discriminatory in accordance with Section 3(1)(c) of the Acts. He stated that this policy puts a non-custodial separated parent at a disadvantage by not being consulted over issues relating to the welfare of their child. He submitted that his status as a father meant his consent should have been required and that he should have been treated equally in that regard. He said that married couples are joint guardians of their children, and that by seeking the consent of one parent only, the respondent was discriminating against him because he was separated. He referred to the Supreme Court judgement of B -v- B and stated that the policy was flawed in that it was based on principles of UK law, and not Irish law.
Submissions in relation to provision of information
3.8. The complainant submitted that, subsequent to his inquiries with the Consultant, he asked the Chief Executive Officer ("the CEO") of the respondent hospital for copies of all documentation in relation to Z's operation and admission. The complainant stated that, in a letter dated 26th November 2007, the CEO refused to give him access to the records sought and advised him that copies of the records requested would be forwarded on receipt of a request from his solicitor. A copy of this letter was provided to the Tribunal. In later correspondence, the complainant said that the CEO wrote to say that he had made this request in order to establish the complainant's identity. However, he stated that he had received records from numerous other named health care institutions on production of copies of his children's birth certificates and his marriage certificate. He submitted that the CEO directed him to seek an unnecessarily expensive remedy and that this was an act of discrimination based on his marital status in that he would have received the records in question if he had not been separated.
4. Summary of the Respondent's Case
Issues relating to consent
4.1. In relation to the complainant's case that it should have sought his consent, the respondent stated that, as consultants are not its employees, it could not be held responsible for this aspect of the complainant's case. It stated that its only responsibility in this respect was to ensure that its policy in relation to consent is in line with best practice. In response to a question from the Tribunal, it did accept that the Consultant was acting under its instructions in terms of seeking consent.
4.2. The respondent added that the matter of whether there had been a proper referral from a G.P. was a matter between the Consultant and the complainant and/or the Mother. It also submitted that, in so far as the issues the complainant raises relate to clinical symptoms, they are a matter for the Consultant to decide upon and it understood he made the appropriate assessment which deemed a tonsillectomy was in the best interests of Z.
4.3. The respondent refuted the claim of indirect discrimination. In the first instance, it objected to my consideration of the matter as it had not been raised prior to the hearing. In any event, it stated that it adheres to best practice in line with the policy on consent followed by similar hospitals, and in accordance with HSE best practice and its legal obligations. In that regard, it refuted the complainant's contention that it was following UK law in its policy on consent. It stated that its policy requires consent from one parent only in all situations. In explaining how consent is sought, it stated that the Consultant would sit down with the parent(s), usually also with the child present, and would go through the consent form, asking if they understood it and if they had any questions. It stated that if the parent(s) are happy with this, they are then asked to sign it - if both parents are present, then it is a matter for the parents to decide who should give consent. It stated that it is not required to ask about the marital status of either parent and does not do so.
4.4. The respondent said that the document provided by the complainant were guidelines adopted by the H.S.E. Community Care Section in January 2009 and were not appropriate for hospitals. It submitted that issues arising from the difference in these guidelines to the ones they used was a matter for the HSE.
4.5. With regard to the issue raised by the complainant concerning Z's organs, the respondent stated that the consent form referred to by the complainant was a standard practice where a surgical procedure if performed. It stated that "tissue samples" may be sent for histology examination which is deemed best clinical practice. In this particular case, no tissue sample was taken.
Request for information
4.6. The complainant also denied that it acted in a discriminatory in relation to its response to the complainant's request for information. It submitted that its request for him to go through a solicitor was to establish his identity.
4.7. The respondent stated that its normal procedure in relation to providing such information to parents is that the parent in question is asked to write in, if they first make the request by phone. Either way, they are also asked to provide identification such as a driving licence or passport. It stated that the record is then pulled and reviewed by one of the senior nursing staff and by the relevant consultant. It is then recorded, photocopied and sent out. It said that normally it would not ask for further information from the parent making the request. It stated that it had introduced a new form for seeking this information since the present complaint was made but that this was brought in as a result of a review of all its policies and procedures and not as a result of the complaint.
4.8. Finally, the respondent stated that the marital status of the complainant was unknown to the hospital until the complainant made contact with it. It stated that it attempted to clarify the position in a letter it sent to the Mother on 20 December 2007, but this letter went unanswered. It said that a note of a subsequent phone call from the CEO's office indicates that the Mother stated she had sole custody of Z. On request from the Tribunal, the respondent provided, inter alia, a copy of this note. The respondent said that it thought it had received a phone call to the hospital from the complainant and, at the Tribunal's request, later provided a copy of a note of that conversation. In any event, it confirmed that it corresponded with him from November 2007 on. It stated that the CEO had made the decision to request the complainant to go through a solicitor because there was a separation agreement and questions of guardianship involved, and in order to establish the identity of the complainant. It stated that it also did so in the interests of confidentiality and Data protection. It added that it also took into account that there was a question of sole custody involved.
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. I am conscious that the issues at stake in this case are particularly sensitive ones, given that family law matters, and, in particular, the welfare of a child, Z, are at the heart of these issues. From that perspective, I have been particularly anxious to publish herein only those matters of relevance to the case at hand in order to further protect the privacy of all parties, for which reason the decision in its entirety has also been anonymised. Nevertheless, I have a decision to make, and in that context, it is necessary to reflect to some degree on some of the more sensitive issues raised.
Issue of consent
5.3. The decision of the Consultant to carry out the tonsillectomy on Z, and the issues relating to whether there was a proper referral from a G.P. or not, are not matters for me to consider as they do not involve any treatment of the complainant, less favourable or otherwise. Additionally, the question of whether the respondent was in breach of the Guardianship of Infants Act is not a matter for this Tribunal. What is at issue here is the decision and/or policy of the respondent, before carrying out the operation in question, to obtain the consent of the Mother only, and whether in doing so it discriminated against the complainant. In that respect, it attempts to absolve itself of responsibility by claiming it was the Consultant's decision. However, while it is accepted that the Consultant is not an employee of the respondent, it is clear that, in seeking the consent of the Mother, he was acting as an agent for the respondent. In that regard, I note that the Consultant, who works in other hospitals, would have to take a different approach to seeking consent at another hospital if, as seems quite possible, it had a different policy in relation to seeking consent in such cases.
5.4. However, the question is whether the treatment of the complainant in this respect was less favourable than someone of a different marital or family status to him would have received in the same or similar circumstances. Clearly, any such person would have to have a child. By definition, then, the complainant could not have been discriminated against on the family status ground vis-à-vis such a comparator as they would have the same family status as the complainant.
5.5. As regards marital status, I am satisfied that the complainant was not treated less favourably than someone of a different marital status as it is clear that consent is sought from only one parent in all circumstances, irrespective of the marital status of the relevant parent, and even if the other parent is present when the consent is sought. Indeed, it is clear that the agent for the respondent seeking the consent often does not know the marital status of the parent from whom they are seeking that consent. I would add that for such a person to ask any question that sought to obtain such information would not be advisable in the context of the Acts as it could, depending on the circumstances, be a discriminatory question in and of itself.
Indirect Discrimination in relation to consent
Issue of jurisdiction
5.6. The complainant also argued that the policy of the respondent to seek the consent of only one parent was discriminatory against him as a separated person. The respondent questioned the jurisdiction of the Tribunal to consider this submission on the basis that it was not put on notice of this argument in advance of the hearing. However, it is clear from the submission of the complainant, and indeed his initial complaint and notification forms, that he took issue with the policy of the respondent in relation to consent. While he does not mention indirect discrimination per se, the implication is clear. Therefore, I am satisfied that the complainant did not make any argument which he had not made in advance.
5.7. While the provision of the Acts that applied to the case the complainant was making was crystallised at the hearing, this is a normal part of the procedure in fora such as the Tribunal, where there is regular attendance by parties who are unrepresented and unclear in their own minds as to matters of interpretation of the Acts. In addition, once the provision in question was identified, the respondent was given ample opportunity to consider and make arguments in relation to the matter before the hearing concluded. It is part of the role of an Equality Officer in such cases to clarify those matters at the hearing, and, provided no party is set at a disadvantage, this is in keeping with natural justice and fair procedures.
5.8. In short, the complainant did not seek to adduce new evidence or raise new issues at the hearing. I cannot see how, in such circumstances, the respondent was set at a disadvantage and I am satisfied that no question of jurisdiction arises in relation to this matter.
Substantive Matter
5.9. Section 3(c) of the Acts states that discrimination on any of the grounds occurs: -
"where an apparently neutral provision puts a person [on any of the discriminatory grounds] at a particular disadvantage compared with other persons, unless the provision is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."
The complainant must, in the first instance, show that the policy of the respondent to seek consent from one parent puts him at a particular disadvantage because he is separated. However, as already stated, it is clear that the policy is to seek consent from whichever parent is readily available. Single parents, married parents, separated parents, divorced parents and widowed parents are all treated exactly the same in that respect and it is clear that the policy in question does not put a separated person at a particular disadvantage.
5.10. The complainant also sought to argue that the policy puts non-custodial parents at a disadvantage vis-a-vis custodial parents, because the person from whom the consent is sought is invariably the parent with custody of the child. He argued that this was particularly relevant to the issue of organ retention, as the consent provided by the parent who signs for it effectively overrides the wish of the other parent to prevent the child's organs being retained, as the case may be. However, the question of whether the policy favours custodial parents over non-custodial parents is related to the custodial arrangements in place with regard to the relevant children rather than to the marital status of the relevant parties. In any event, they will generally be of the same marital status (i.e. separated or divorced).
5.11. Therefore, the complainant has failed to establish a prima facie case of less favourable treatment in relation to the respondent not seeking his consent to carry out an operation on Z.
Provision of information
5.12. I now turn to the question of whether the respondent's decision to request the complainant to go through a solicitor to obtain information relating to Z was discriminatory on either ground. Again, any person in the same or similar circumstances would have to have a child and so the complainant could not have been discriminated against on the family status ground vis-à-vis such a comparator as they would have the same family status as the complainant. However, I must still consider whether there was less favourable treatment on the marital status ground in this respect
5.13. It is clear that if the complainant was not separated he would have been granted his request for information without any difficulty once he presented identification to show that he was who he said he was. He certainly would not have been asked to go through a solicitor, and the respondent did not adduce any evidence that the welfare of Z was at issue in refusing to provide the documentation in question. Indeed, the respondent stated at the hearing that the reasons for requesting the complainant to go through a solicitor included because there was a separation agreement in place. Not least for these reasons, I do not accept the respondent's principal submission that the reason why it asked the complainant to go through a solicitor was in order to establish his identification. Finally, in this respect, the complainant was eventually provided with the documentation in question but only after he had made his complaint to the Tribunal. In any event, this does not absolve the respondent with respect to its insistence that he go through a solicitor in the first instance.
5.14. Therefore, I am satisfied that the complainant was treated less favourably because he was separated with respect to this aspect of his complaint and he has established a prima facie case of discrimination in that regard on the marital status ground.
Respondent's rebuttal
5.15. The respondent sought to rebut this aspect of the claim by stating, in the first instance, that it was required to make him go through a solicitor because of Data Protection issues. However, it was unable to point to the provision of the Data Protection Act that required it to do so. I am satisfied that no such requirement exists.
5.16. The respondent also stated that it had issues relating to guardianship and custody. In that regard, I note that the respondent told the Mother that once the complainant provided proof of legal guardianship over the child that they were obliged to send the material to him. Not least for that reason, the issue of custody is irrelevant. Furthermore, and in all the circumstances of the present case, if the reason for the respondent's less favourable treatment of the complainant related to the establishment of guardianship, then it is clear that a request for the birth certificate of Z would have resolved the matter. (In that regard, I note that other hospitals to which the complainant referred similar requests provided the information to him on foot of Z's birth certificate.) Instead, the complainant was told that the information would only be provided if he made a request through his solicitor. I do not consider that such a heavy-handed approach is consistent with a relatively simple matter of establishing whether the complainant had guardianship of his daughter or not.
5.17. Therefore, I am satisfied that establishing whether the complainant had guardianship of Z was not the only reason for the difference in its treatment of the complainant, if it was a reason at all. As the respondent has failed to provide evidence of any other legitimate reason for the less favourable treatment of the complainant by it in this respect, it has failed in its rebuttal of the prima facie case established by the complainant with respect to the provision of the information in question.
Final Comments
5.18. It should be noted that the complainant sought to adduce evidence as a separated father. However, I note that he did not take a complaint on the gender ground. Consequently, I have no jurisdiction to consider the matter from that perspective and have only been able to consider this complaint from the standpoint of the complainant as a separated person. (The complainant was informed of this when he sought to adduce this evidence at the hearing.)
5.19. In relation to the order to be made in this case, I have considered the extent to which the breach of the Acts had a direct effect on the complainant: viz., in short, that because of his marital status, the respondent required the complainant to procure the services of a legal practitioner in order to access records relating to his daughter, Z, when he had a legitimate right to obtain these records, at least as far as the Acts are concerned. It is also clear that the emotional and psychological impact of the discrimination on the complainant was significant and that he was clearly angered and upset by that discrimination. I am also restricted by the limits on the redress for which a decision under the Acts may provide. I have taken these factors into account in my decision as regards the orders that follow.
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 family status ground in terms of Sections 3(1)(a) , 3(1)(c), 3(2)(c) 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(1)(c), 3(2)(b) and Section 5(1) of the Equal Status Acts with respect to the respondent's policy in relation to seeking consent from one parent only and its decision not to seek his consent in relation to the procedure in question that was carried out on his daughter.
6.4. I find that the complainant has established 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 with respect to the respondent's decision to request the complainant to go through a solicitor to obtain information relating to his daughter, Z. I find that the respondent has failed to rebut this prima facie case.
6.5. Accordingly, I order the respondent to pay to the complainant the sum of €2,000 for the effects of the discrimination.
6.6. In accordance with Section 27(1)(b) of the Equal Status Acts, I also make the following order: that, in consultation with an appropriate person(s) and/or organisation(s) expert in the areas of law of relevance to such a review, the respondent carry out a review of its procedures with regard to the provision of information to parents and/or guardians of minors in relation to whom the respondent has records, to ensure that these procedures are in compliance with the provisions of the Equal Status Acts and other relevant legislation. This review must, within twelve months of the date of this decision, result in the publication of a written document in that regard to be made readily available to all such parents and/or guardians who wish to make such a request.
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Gary O'Doherty
Equality Officer
17 September 2010