The Equality Tribunal
Equal Status Acts 2000 to 2011
Decision Number
DEC-S2011-058
Parties
Tadeusz Jedruch
(Represented by O'Hanrahan & Company Solicitors)
V
The Adelaide and Meath Hospital
Case ref: ES/2010/0114
Issued: 7 December 2011
DECISION NUMBER DEC-S2011-058 CASE REFERENCE ES/2010/0114
Keywords:
Equal Status Acts 2000 to 2008- Discrimination -Provision of Goods and Services - Race - Prima Facie case
1. Delegation under the Equal Status Acts 2000 to 2008
1.1. Mr. Tadeusz Jedruch (hereafter "the complainant") referred a claim to the Director of the Equality Tribunal under the Equal Status Acts on 21 December 2010. The respondent was notified of this complaint in accordance with the Acts on 13 October 2010. In accordance with his powers under section 75 of the Employment Equality Act, 1998 and section 25 of the Equal Status Acts, the Director then delegated the case to me, Tara Coogan, 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 25 July 2011. An oral hearing, as part of the investigation was held in Dublin on 1 November 2011. A reply period was extended to 18 November 2011.
2. Dispute
2.1. The dispute concerns a complaint of unlawful discrimination on the race ground. The complainant submitted that the Adelaide and Meath Hospital ("the respondent") discriminated against him by having him wait 20 months to see a named surgeon when other persons only had to wait for 3 to 4 months. The complainant stated that he discovered this while talking with other patients in the named doctor's waiting room.
3. Case for the complainant
3.1. The complainant is a Polish national who has lived in Ireland for over 5 years. He was referred to the respondent hospital by his General Practitioner. He had a sinus on his back that was causing him great discomfort and distress. He stated that due to the delay the growth on his back got bigger, he experienced much pain, and he lost his job.
3.2. The complainant received a letter from the respondent dated 23 February 2009 notifying him of an appointment scheduled for 17 August 2009. On 17 July 2009 he received a further letter postponing the appointment for 18 January 2008. This appointment was again cancelled on 2 December 2009 and rearranged for 29 March 2009. Another cancellation was received on 22 February 2010 and the appointment was rescheduled for 9 August 2010. This appointment was yet again cancelled by letter dated 23 March 2010. The actual appointment took place on 13 September 2010.
3.3. The complainant submitted that between these cancellations he had 15 consultations with his GP. The complainant was given anti-depressant medication and he submitted that he believed that this was linked with the discriminatory delay.
3.4. The complainant submitted that when he finally met with the surgeon he examined him for approximately 3 minutes and told the complainant have his surgery scheduled in December 2010.
3.5. The complainant submitted that when he approached a nurse in order to make an appointment in December 2010 - on foot of the surgeon's instructions - the nurse racially abused him by saying: "what are you doing here when you can't even speak English?" The complainant submitted that this made him feel that he had less of entitlement to be in Ireland than an Irish person. Furthermore, he stated that when he was queuing in the corridor to see the surgeon, he saw the nurse move his file from the top of the pile to the bottom. The complainant accepted that he did see the surgeon that day although initially he was offered an audience with a house officer but he refused and, approximately thirty minutes later, he was seen by the surgeon. While waiting to see the surgeon, the complainant spoke with other people in the waiting area and discovered that they, who he says were Irish, had only been waiting for the same time with an identical complaint.
3.6. The complainant submitted that as no reply to details was received, the Tribunal is entitled under section 26 of the Acts, to drawn inferences from such failure. In relation to the respondent reply dated 23 May 2011, the complainant submitted that this was "complete fudge" - full of platitudes which did not explain anything.
3.7. The complainant submitted that the fact that the respondent did not keep records about patient's nationalities could be seen as self-serving as such records could prove discriminatory practices.
3.8. The complainant has recovered after the surgery but stated that he has a large scar. The delay was very stressful for the complainant who was worried that it could have been cancerous. The complainant maintains that an Irish person would not have received such appalling delays and treatment in similar circumstances.
4. Case for the respondent.
4.1. The respondent hospital, located in southwest Dublin, provides child-health, adult, psychiatric and age-related healthcare on one site. There are 625 beds in the hospital and almost 3,000 people are employed here. The hospital is a provider of local, regional, supra-regional and national specialities. It is also a national urology centre, regional dialysis centre and a regional orthopaedic trauma centre. The hospital is one of the two main teaching hospitals of Trinity College Dublin.
4.2. The respondent denies any discrimination in relation to the complainant. While it is acknowledged that the complainant's appointment had been rescheduled a number of times between the initial appointment made on 23 February 2009 for 17 August 2009 and the actual appointment made on 23 March 2010 for 13 September 2010, it was submitted that this was due to overcrowding in surgical referrals. In such circumstances, patients with non-life threatening conditions will be rescheduled to accommodate those who have a more clinically acute need. This inevitably leads to a variation of time of referral and time to be seen. The complainant's referral letter was categorised as 'routine' and in such circumstances, at the material time, cases identified as 'urgent' or 'soon' will take priority. The respondent subsequently confirmed that the complainant's GP did not contact the hospital to indicate that there was any reason why the 'routine' position ought to be changed to 'urgent' or 'soon.'
4.3. It was submitted that for a surgeon to delay the seeing of a patient for discriminatory reason may have grave consequences for the surgeon in that such conduct could amount to a serious breach of professional conduct. The respondent accepts that is does not keep records of patient's nationality and noted that it could assume different nationality on the basis of a patient's name. However, having conducted a check of other cancellations on the same dates within the same service, the respondent submitted that a number of other patients also had their appointments rescheduled a number of times. The respondent is unable to say whether such patients' conditions were identical to that of the complainant as such an analysis would require clinical assessment. Furthermore, the respondent was unable to provide records as such information is covered by patient confidentiality.
4.4. The respondent submitted that it is regrettable that cancellations occur and the complainant had to wait for such a long time to have the surgery that he required. Waiting times can be affected by a number of reasons including the number of referrals and the delays in other acute hospitals.
4.5. The respondent is unable to comment on the alleged conduct of the unidentified nurse. It was submitted that if indeed she did make such comments, they would have been contrary to respondent policy. The respondent employs a broad number of non-native English speakers from a variety of national backgrounds. It was submitted that the respondent usually receives complaints about patients not understanding the staff, not other way around.
5. Conclusion of the equality officer
5.1. Section 38A (1) of the Equal Status Acts 2000 to 2004 sets out the burden of proof which applies to claims of discrimination. It requires the complainant to establish, in the first instance, facts upon which he can rely in asserting that he suffered discriminatory treatment. 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.
5.2. In circumstances where the complainant is unable to identify the nurse and/or name any actual comparators for his case, this Tribunal is been asked to infer a discriminatory motive and that an Irish person would not have experienced such delays. Section 16(2)(a) provides for 'clinical judgment' and differential treatment in relation to a medical treatment. When a service provider is exercising solely his or her clinical judgment in relation to a patient and treating the patient accordingly, such treatment cannot be construed as discrimination within the meaning of these Acts. Having heard the full facts of this case I am satisfied that the complainant has been unable to provide any evidence that can be considered to be more than a mere assertion linking his nationality with the treatment his received. In such circumstances I am satisfied that the reason why the complainant's appointment was rescheduled was because of an assessed clinical judgment, not because of the complainant's nationality.
6. Decision
6.1. In accordance with section 25(4) I conclude my investigation and issue the following decision:
6.2. The complainant has not established a prima facie case of less favourable treatment on race ground. Therefore the case fails.
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Tara Coogan
Equality Officer
7 December 2011