DEC-S2016-049

EQUAL STATUS ACTS

DECISION NO. DEC-S2016-049

PARTIES

Ms. A on behalf of her daughter B (deceased)

(Represented by Thomas J. O’Halloran, Solicitor)

-v-

A Dental surgeon

(Represented by Rachael O'Toole, Solicitor)

FILE NO: et-150325-es-14

Date of issue: 25th of July, 2016

1. Dispute

This dispute involves a claim on behalf of the complainant
that she was discriminated against by the respondent, on grounds of her disability when he cancelled her dental appointment with him without reason. There is also a complaint of failure to provide the complainant with reasonable accommodation for her disability.

2. Background

2.1 The complainant referred a complaint under the Equal Status Acts, 2000-2015 to the Equality Tribunal on the 28th of October, 2014. It is submitted that the complainant’s mother had made an appointment for the complainant to see the respondent at his clinic on 3rd of July, 2014, but that this appointment was later cancelled by the respondent without reason. The complainant submits that the appointment was cancelled due to her disability. In addition, it is submitted that the respondent failed to provide the complainant with reasonable accommodation for her disability.

2.2 In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the case on the 16th of November, 2015 to me Orla Jones, Equality Officer, for for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. This is the date I commenced my investigation. Written submissions were received from both parties. As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing on the 29th of March, 2016.

2.3 This decision is issued by me following the establishment of the Workplace Relations Commission on 1 October 2015, as an Adjudication Officer who was an Equality Officer prior to 1 October 2015, in accordance with section 84 of the Workplace Relations Act 2015.

3. Summary of complainant’s case

3.1 It is submitted that the complainant (who is now deceased)

· suffered from severe physical and mental disablements. The complainant had Rhetts Syndrome and was non-communicative,

· attended at a named Dental Clinic, on the 1st of July, 2014 and was examined by a Hygienist and two dentists as she had been experiencing a lot of pain due to her wisdom teeth in the previous two weeks,

· an x ray revealed a problem with her wisdom teeth and it was decided that she would need a specialist X-ray (OPG dental X-Ray),

· it was recommended that an appointment be made with the respondent who was an Oral Surgeon at a named hospital, as he is an oral dental surgeon and an expert in wisdom teeth extraction,

· the staff in the clinic phoned the respondent’s surgery on the 1st of July, 2014 and secured an appointment for the complainant to see the respondent two days later on the 3rd of July, 2014,

· the Hygienist Ms. D spoke to the respondent’s secretary and informed her that the complainant had Rhetts Syndrome was non-communicative and was wheelchair bound,

· a referral letter was requested along with a copy of the X-Ray taken at the clinic,

· on 2nd of July, 2014 the complainant’s mother received a phone call from the respondent’s secretary, Ms. E, cancelling the appointment for 3rd of July, 2014,

· the respondent did not give any reason as to why the appointment was cancelled but stated that it was up to the Dental clinic to deal with it,

· the complainant’s appointment was cancelled due to the complainant’s disability,

· the respondent did not want to provide the service to the complainant as it would be too much trouble.

4. Summary of Respondent’s case

4.1 The respondent submits that

the respondent became aware on the 2nd of July 2014 by looking at his appointment book that an appointment had been made for the complainant on 3rd of July, 2014,
the respondent was unaware that the complainant had a disability,
the respondent upon seeing the complainant’s name in his appointment book recognised that that the complainant was not one of his regular patients,
the respondent asked his Secretary how the complainant had received an appointment and whether a letter of referral had been received regarding the appointment,
the respondent’s secretary indicated that a hygienist from the HSE had phoned to make the appointment but that no letter of referral had been received,
the respondent was not aware that the complainant’s appointment related to an emergency,
the respondent does not accept appointments without letters of referral,
the respondent cancelled the complainant’s appointment as no letter of referral had been received
the respondent upon receipt of notification of a complaint from the complainant’s mother Ms. A, immediately contacted Ms. A and arranged to meet with her on the 19th of August, 2014 to discuss the matter,
Ms. A cancelled the meeting scheduled for the 19th of August, 2014,
the respondent following the cancellation of the meeting issued a letter of apology explaining the reason why the complainant’s appointment had been cancelled.

5. Preliminary Jurisdictional Issue –Complainant deceased

5.1 The complainant in this case is deceased. The claim is being advanced by the mother of the complainant on her behalf. The complainant’s mother, Ms. A, advised the hearing that the complainant had Rhetts Syndrome and had difficulty communicating verbally as it affected her speech. Ms. A stated that the complainant due to her disability would have been unable to speak for herself or to give direct evidence at the hearing even if she had been present at the hearing. Ms. A stated that she, as the complainant’s mother, had to take the claim and speak on behalf of the complainant at the hearing.

5.2 The respondent advised the hearing that they were not raising any issue in respect of the complainant’s mother taking the claim on behalf of her daughter who is now deceased.

5.3 However for the avoidance of doubt and for the sake of completeness I have taken cognisance of other published decisions of this Tribunal/Commission specifically DEC –S2009-04 Hegarty (deceased) -v- Area Development Management Ltd where the Equality Officer found that the complaint under the Equal Status Acts had survived the death of the complainant, in circumstances where the complainant had died before the investigation had been completed. The Equality Officer in that case concluded that he did have jurisdiction to investigate and hear the complaint. I have considered the abovementioned decision in accordance with the circumstances of the present case and I am satisfied that the Commission has jurisdiction to investigate the current claim taken on behalf of the complainant who is deceased.

6. Conclusions of the Equality Officer

6.1 The issue for decision by me now is, whether or not the respondent discriminated against the complainant on grounds of disability in terms of sections 3(2)(g) of the Equal Status Acts, 2000-2015 and whether the respondent failed to provide the complainant with reasonable accommodation for that disability pursuant to Section 4 of those Acts. In reaching my Decision I have taken into account all of the submissions, oral and written, made to me in the course of my investigation as well as the evidence at the Hearing.

6.2 Section 3(1) provides, inter alia, that discrimination shall be taken to occur where:

(a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) (in this Act referred to as the ‘‘discriminatory grounds)’’

6.3 Section 3(2)(g) provides that: as between any two persons, the discriminatory ground of disability is,

(g) that one is a person with a disability and the other either is not or is a person with a different disability (the “disability ground”),

6.4 Section 38A (1) provides that the burden of proof is: " Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary." It requires the complainant to establish, in the first instance, facts upon which he/she can rely in asserting that the prohibited conduct has occurred. Therefore the complainant must first establish a prima facie case of discriminatory treatment and it is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination. I am satisfied that the respondent is providing a service within the meaning of the Equal Status Acts.

6.5 It is submitted that the complainant is a person with a disability for the purposes of the Act. Section 2 of the Equal Status Act, 2000 defines “disability”, inter alia, as meaning “a condition, disease or illness, which affects a person’s thought processes, perception of reality, emotions, or judgement or which results in disturbed behaviour….”.

6.6 The complainant’s mother Ms. A advised the hearing that the complainant suffered from very severe physical and mental disablements. She advised the hearing that the complainant had Rhetts Syndrome and was non-communicative. I am satisfied from the totality of the evidence adduced that the complainant was a person with a disability for the purpose of the Acts.

7. Discrimination on grounds of disability and failure to provide reasonable accommodation.

7.1 In making my decision I must 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 he/she can rely in asserting that prohibited conduct has occurred in relation to him/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. In making my decision, I have taken into account all of the evidence, written and oral, made to me by the parties to the case.

7.2 The complainant has also submitted a claim of failure to provide reasonable accommodation. In this regard the relevant sections of the Equal Status Acts are sections 4 (1) and 4 (2):

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 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.

7.3 The complainant’s mother, Ms. A, advised the hearing that she had on the 1st of July, 2014 attended a named Dental Clinic with her daughter who had been suffering from severe dental pain for about two weeks prior to this date. Ms. A stated that her daughter had on that date been examined by a Hygienist and two dentists as she had been experiencing a lot of pain in her mouth during the previous two weeks. Ms. A advised the hearing that an X-ray was taken of the complainant’s mouth which had revealed a problem with the complainant’s wisdom teeth. It was thus decided that she would need a specialist X-ray (OPG dental X-Ray). Ms. A advised the hearing that it was recommended that an appointment be made with the respondent Mr. C, who was an Oral Surgeon at a named Hospital, as he is an oral dental surgeon and an expert in wisdom teeth extraction.

7.4 Witness for the complainant, Ms. A advised the hearing that the staff in the Dental clinic had in her presence, phoned the respondent’s surgery on 1st of July, 2014 and secured an appointment for the complainant to see the respondent two days later on the 3rd of July, 2016. Witness for the complainant, Ms. D, who was the Hygienist at the Dental Clinic, advised the hearing that she had spoken to the respondent’s secretary, Ms. E and had made the appointment, she stated that she had informed Ms. E that the complainant had Rhetts Syndrome was non-communicative and that she was wheelchair bound. The complainant’s mother corroborated Ms. D’s version of the information provided to the secretary in respect of the complainant’s disability.

7.5 Witness for the complainant, Ms. D advised the hearing that a referral letter was requested by the respondent’s Secretary along with a copy of the X-Ray taken at the clinic. Ms. D advised the hearing that it was agreed that these would be brought along to the complainant’s appointment. Ms. D stated that it was too late for the referral letter to be posted in advance of the appointment given that the appointment was for two days time.

7.6 Witness for the complainant, Ms. A advised the hearing that she had on 2nd of July, 2014 received a phone call at 10.00 am from the respondent’s secretary Ms. E, cancelling the complainant’s appointment for 3rd of July, 2014. Ms. A stated that the respondent did not give any reason as to why the appointment was cancelled. Ms. A advised the hearing that she was shocked that the complainant’s appointment had been cancelled without reason and stated that she later phoned the respondent’s secretary back at 10.30a.m. in order to find out why the appointment was cancelled. Ms. A stated that the respondent’s secretary, when questioned about the cancellation, stated that it was up to the Dental clinic to deal with it. Ms. A stated that the respondent’s secretary also added that they shouldn’t have put the respondent in this position.

7.7 Ms. A advised the hearing that following this she concluded that the respondent was refusing to treat the complainant due to her disability and that the respondent did not want to provide the service to the complainant as it would be too much trouble. Ms. A advised the hearing that she later contacted the complaint’s department of the HSE and advised them of what had happened. Ms. A stated that the response she received from them was that the respondent had indicated that he was unable to provide comprehensive dental treatment for the complainant.

7.8 The respondent, Mr. C, advised the hearing that he was not aware that the complainant had a disability until he received the complaint from Ms. A. Mr. C advised the hearing that he had looked at his appointment book on 2nd of July, 2014 and saw the complainant’s name in the appointment book for the next day, and knew that she was not one of his regular patients. The respondent, Mr. C, advised the hearing that he works on a ‘referral only’ basis and that he sees patients following referrals from other dentists or doctors. Mr. C advised the hearing that he had asked his secretary, who had made the appointment and stated that she told him that ‘a Hygienist rang from the HSE and made the appointment’. He stated that he then questioned his secretary as to whether a letter of referral had been received in respect of the appointment and that she advised him that there was no letter of referral. Mr. C stated that he then instructed his secretary to cancel the appointment as he does not see patients without referral letters. Mr. C went on to state that ‘no referral means no appointment’. Mr. C stated that his secretary had stated that there was no referral letter and made no mention of a referral letter being brought to the appointment.

7.9 The respondent, Mr. C advised the hearing that he does not see patients ‘off the street’ or ‘drop in’s’ and that he needs to have a letter of referral before receiving a new patient in order to determine what treatment and care a patient needs. The respondent stated that the referral letter provides the details of the chain of care which the patient has received before being referred to him.

7.10 Mr. C advised the hearing that he has experienced ongoing difficulties with the HSE sending patients to him without referral letters and without any indication of previous care or any background to the patient’s needs. Mr. C stated that it is not possible to treat patients without such background care details and stated that for this reason he operates a strict policy of ‘no referral letter means no appointment’.

7.11 The respondent, Mr. C went on to state that he accepts referrals from dentists or doctors and stated that he is often contacted by other dental and or medical practitioners in respect of referrals. Mr. C stated that in this case no contact was received from a dentist or doctor and no letter of referral was received. In response to the complainant’s submission that it was too late to post a letter of referral on 1st of July for an appointment on the 3rd of July, Mr. C stated that he accepts letters of referral by email and fax and that either of these could have been used to provide him with the requisite letter of referral in advance of the appointment.

7.12 The respondent, Mr. C stated that it was unusual that a patient would be referred to him via a phone call from a hygienist instead of a dentist as seems to have happened in this case. The hygienist, Ms. D, who was at the hearing did not dispute this, but stated that she had on this occasion made the call as the dentist at the time, was too busy to do so.

7.13 Mr. C went on to state that he had treated the complainant in the same way as he would any patient seeking an appointment without a letter of referral from a medical or dental practitioner. Mr. C also added that he was not at the time of these events aware that the complainant had a disability.

7.14 Mr. C also advised the hearing that upon discovering that the complainant had a disability he had made contact with the complainant’s mother, Ms. A, and offered to meet with her immediately to discuss matter and indicated that he would be happy to treat the complainant. Ms. A did not dispute this.

7.15 Mr. C at the hearing repeatedly apologised for the way in which his secretary had dealt with the matter and stated that the complainant should at the time, have been advised that the reason for the cancellation of the appointment was due to the fact that no referral letter had been provided. The complainant’s mother, Ms. A advised the hearing that she had not, during any of the communications with the respondent’s secretary, been advised that the appointment was being cancelled due to a requirement for a letter of referral. Ms. A added that she could have dropped in the letter prior to the appointment if she knew this was the reason for cancelling the complainant’s appointment. The respondent, Mr. C apologised for his secretary’s failure to inform Ms. A of the reason for the cancellation and also stated that Ms. A should not have been spoken to in the way in which she alleges she was spoken to by the respondent’s secretary. Mr. C stated that the secretary in question no longer worked for him and was not present at the hearing. Mr. C however acknowledged that he was responsible for the way in which his secretary spoke to Ms. A and dealt with her queries regarding the cancelled appointment. Mr. C stated that he was not at any point advised that the complainant had a disability or that this was a dental emergency, prior to cancelling her appointment.

7.16 In this case the complainant who had a disability was refused a service. The complainant’s mother Ms. A has advanced that no reason was given for cancelling the complainant’s appointment but submits that the cancellation was due to the fact that the complainant had a disability. The respondent Mr. C has submitted that the reason the complainant’s appointment was cancelled was due to the fact that the respondent had not received an appropriate letter of referral as was his policy prior to seeing or treating patients.

7.17 Mr. C advised the hearing that he was not aware that the complainant had a disability when cancelling her appointment and that he only became aware that the complainant had a disability upon receiving the complaint from Ms. A on behalf of the complainant. Mr. C advised the hearing that he received the ES1 form on the 18th of August, 2014 and that he had arranged to meet with the complainant’s mother, Ms. A, on the 19th of August, 2014 to discuss the matter. Mr. C stated that Ms. A had later cancelled the meeting scheduled for the 19th of August 2014, and stated that he had replied in writing to her ES1 complaint form on 2nd of September, 2014. In his reply Mr. C clarified that the reason for the cancellation of the appointment was due to the lack of an appropriate referral, he also added that he would be happy to see and treat the complainant on receipt of the appropriate letter of referral. Witness for the complainant Ms. A did not dispute this version of events. She added that she had cancelled the meeting with Mr. C which had been scheduled for the 19th of August, 2014 as she was too upset to meet with him.

7.18 I note that the statutory notification under section 21 2(a) of the Act was sent to the respondent on 14th of August 2014 (and received by him on the 18th of August,2014) and that the respondent upon receipt of the complaint arranged to meet with the complainant to discuss the matter. It is accepted that a meeting was arranged for the 19th of August, 2014 which was later cancelled by Ms. A. It is also accepted that Mr. C then replied in writing to the ES1 notice on 2nd of September, 2014 in which he explained the reason for cancelling the appointment and offered to treat the complainant in the future albeit too late for the complainant’s dental problem the subject matter of this complaint. It should be noted that the serving of the statutory notification on the respondent is not referring the case for investigation. It provides the respondent with an opportunity to respond to the complaint. The respondent in this case took action upon receiving the notification and sought to rectify the situation by arranging to meet Ms. A and when this meeting was cancelled by Ms. A, Mr. C sent a reply clarifying the reason for cancelling the appointment and offering to treat the complainant in the future.

7.19 I accept Mr. C’s evidence that the appointment was cancelled due to the fact that the he had not received a referral letter from an appropriate medical or dental practitioner. It does seem to be a strict policy but this is understandable given Mr. C’ s account of his previous experiences of being sent patients without referral letters and without any detail of previous care. I also accept that Mr. C made immediate efforts to meet with Ms. A in a bid to resolve matters and that he also offered to treat the complainant in the future.

7.20 Based on the totality of the evidence adduced in relation to these matters I am satisfied that the complainant was not discriminated against by the respondent on grounds of her disability and that the respondent’s cancellation of her appointment does not amount to a refusal or failure 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.

8. Decision

8.1 In reaching my decision I have taken into account all the submissions, written and oral that were made to me. In accordance with section 25(4) of the Equal Status Acts, 2000 to 2015, I conclude this investigation and issue the following decision.

(i) the complainant was not discriminated against by the respondent on grounds of disability contrary to section 3(2)(g) of the Equal Status Acts, 2000-2015, and

(ii) the complainant was not discriminated against by the respondent on grounds of disability pursuant to section 4 of the of the Equal Status Acts, 2000-2015, in respect of a refusal or failureto 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.

___________________

Orla Jones

Adjudication Officer/Equality Officer

25th of July, 2016