ADJUDICATION OFFICER DECISION.
Adjudication Reference: ADJ-00023825
Parties:
| Complainant | Respondent |
Anonymised Parties | A client | A service provider |
Representatives | Ciaran Craven SC, Simon Donagh BL, instructed by Seán Ormonde, Sean Ormonde & Co. | Ms Mema Byrne BL instructed by David Hickey , Crowley Millar Solicitors |
Complaint(s):
Act | Complaint/Dispute Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00029349-001 | 28/06/2019 |
Date of Adjudication Hearing: 06/03/2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Procedure:
In accordance with Section 41 of the Workplace Relations Act, 2015 and/or Section 25 of the Equal Status Act, 2000, following the referral of the complaint to me by the Director General, I inquired into the complaint and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaint.
Background:
The Complainant was scheduled to have a procedure carried out by the Respondent on 10th May 2019. When the Complainant arrived to undergo the procedure, the Respondent refused to carry out the procedure due to the Complainant’s health. I have agreed not to publish the names of the parties following a request made by the Complainant and supported by the Respondent. This complaint was received by the Workplace Relations Commission on 28th June 2019. |
Summary of Complainant’s Case:
Background The Complainant is engaged to be married. As part of her wedding preparations she decided to undergo a series of “microneedling” treatments. This is a procedure designed to improve the appearance and texture of one’s skin (as per the Respondent’s website). The Respondent’s website describes it is the following terms: “Microneedling works by stimulating the production of new collagen in the skin. This is achieved by puncturing the dermis with microscopic needles. The treatment utilises the skins ability to heal itself, in turn triggering the production of new collagen. In addition to treating pores, fine wrinkles, loss of elasticity, minor scarring (including acne scarring) and sun damage it also enables topical products to penetrate deeper into the skin, increasing their effectiveness. · Stimulate collagen production · Improves skin texture · Reduces fine lines and wrinkles · Improves acne scarring · Smooths and firms skin · Treats pigmentation” With a view to commencing a series of such treatments the Complainant paid a deposit of €50 and arranged an appointment at the City Centre Clinic on 10th May 2019. The total cost of the series of treatments would have come to €1,100. The Complainant attended for her appointment at 4pm on 10th May 2019. She was brought to the consultation room where a numbing cream was applied to her face. As part of the treatment procedure, she was required to complete a standard form. Part of this form required clients to disclose any medical conditions or medication being taken at the time. The Complainant disclosed that she has been diagnosed with multiple sclerosis (MS). The therapist who was treating the Complainant went through the form and enquired about the medication the Complainant was on for MS. At the time the Complainant was not on medication. She explained that she had been on Tecidera and would shortly be treated with Tysabri. She came off Tecidera due to the series of treatments she had hoped to commence with the Respondent. The Complainant also explained that she had previously received microneedling treatment in a different clinic without issue. The Therapist said she would double check the position and left the room. When she returned she appeared embarrassed and told the Complainant that the treatment was not recommended to someone on MS medication. The Complainant reminded the Therapist that she wasn’t actually on any medication at the moment. Thus, at the very least, that appointment could have proceeded. The Therapist had a conversation over the phone to check the position. When she returned, she told the Complainant that a person suffering from an auto-immune disorder could have “healing difficulties” and therefore the Respondent was not in a position to provide her with the treatment. The Complainant was both upset and surprised by this statement, particularly as she had obtained the treatment elsewhere without incident. The Complainant suggested that she sign a waiver but this suggestion was not accepted by the Respondent. In circumstances where the Respondent refused to perform the treatment, the Complainant left the premises – with her face still numb from the application of the numbing cream. The following day the Complainant sent an email to the Respondent in which she set out her grievance in relation to the way in which she had been treated. She explained that she had been discriminated against. She explained that there was no medical reason to have refused her treatment. She also highlighted that the Respondent had not provided her with terms and conditions that would justify the refusal of the treatment. She pointed out that it was obvious that the staff had not been trained in relation to how to deal with such cases. It appears that in an email dated 13th May 2019, the Respondent’s Head Training Manager enquired of a Dominick Andrews whether treatment could be provided to a person suffering from MS. The response was received less than an hour later and indicated that according to treatment protocols, “clients with MS are contraindicated to microneedling”. It goes on to say. “Therefore, we recommend you do not treat this client as you are not medical professionals, and separately as it is contraindicated there is no insurance cover available”. On foot of that email, the Complainant received an email from the Head Training Manager in the following terms. “Hi ….. Thank you for your feedback, I want to apologise for any embarrassment caused and would like to assure you that at our Clinic, our client’s safety and well being is always our number one priority. We have to strictly follow guidelines set out by our carefully selected suppliers for all treatments we offer at our clinics. We do however offer a wide range of skin treatments and we would love to help prepare your skin for your wedding and do feel we have some great alternatives that we would like to discuss with you. I can arrange for a detailed consultation and we can develop a tailored plan, with treatments including our exclusive Skin Theory mango radiance and vitamin C peel. I have personally reached out to reconfirm the manufacturer’s guidelines for microneedling treatments again today, please see response below. If you have any further questions, please do not hesitate to contact me, I hope this answers all of your questions. Again, we would really love to help you prepare your skin for your wedding and do hope you’ll return to us for a Free Consultation so we can discuss this further with you”. The Complainant later confirmed with her Neurologist that there was no medical reason why she could not obtain the treatment. Legal Basis for the Claim The Complainant’s case is that by refusing to provide her with the requested treatment, the Respondent discriminated against her on the disability ground. The law in relation to discriminatory treatment is clear: once a prima facie case is established, the burden is cast on the Respondent to justify the discrimination. In this case, there can be no doubt whatsoever that the prima facie burden has been discharged – the only reason for refusing treatment was because the Complainant suffers from MS. That is prima facie discrimination on the disability ground. The burden rests with the Respondent to rebut that presumption. The Complainant reserves her right to make submissions in response to the Respondent’s submission. Section 4(1) of the Equal Status Acts makes it clear that discrimination on the disability ground includes not just the refusal to provide the service, but also the failure to do all that is reasonable to accommodate the needs of the person with a disability i.e. “reasonable accommodation”. Section 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. Section 16(2) of the Act establishes a specific exception from discrimination where a person is treated differently due to an illness. Section 16(2) provides that this exception is founded on a “clinical judgment”. The Respondent did not rely upon a clinical judgment in refusing to provide treatment to the Complainant. Therefore, the Respondent cannot avail of this exception. Section 16(2) provides: “Section 16(2) Treating a person differently does not constitute discrimination where the person – a) is so treated solely in the exercise of a clinical judgment in connection with the diagnosis of illness or his or her medical treatment”. Conclusion The Complainant was refused microneedling treatment on the basis that she suffers from MS. She has discharged the prima facie burden and awaits the Respondent’s response. Without prejudice to anything the Respondent may submit in defence of its actions, the Complainant asserts that there is no medical reason why the Respondent would have been unable to provide the treatment.
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Summary of Respondent’s Case:
The Complainant attended at a Clinic on 10th May 2019 for “microneedling”. The appointment had been booked by the Complainant online. The Complainant had been a client of the Respondent prior to this appointment but had not previously attended at the Respondent’s clinic to have microneedling. Microneedling is described on the Respondent’s website as follows: “Microneedling works by stimulating the production of new collagen in the skin. This is achieved by puncturing the dermis with microscopic needles. The treatment utilises the skin’s ability to heal itself, in turn triggering the production of new collagen. In addition to treating pores, fine wrinkles, loss of elasticity, minor scarring (including acne scarring) and sun damage it also enables topical products to penetrate deeper into the skin, increasing their effectiveness …” How does Microneedling work? “Collagen is a protein that gives our skin its structure, working like a netting to hold skin cells together. It also gives skin a smooth and youthful appearance, as we have it in abundance when we are young. As we age, collagen starts to break down, which can lead to fine lines and wrinkles. As the skin begins to repair itself, it turbo charges the body’s natural ability to produce collagen. The tiny needles used in the procedure create microscopic channels in the dermis that stimulate that healing process. The procedure improves skin texture, reduces the appearance of scars and creates a more youthful tone. It’s no surprise that this treatment has been hailed as a non-invasive way to achieve youthful, dewy looking skin”. As the Complainant had been treated by the Respondent previously (laser treatment) the Therapist read the Complainant’s laser consultation card which outlined her medical condition prior to commencing treatment. The Complainant’s consultation card disclosed that she had MS. The Complainant informed the Therapist that she had not taken any medication on the day in question as she was transitioning between two therapies. The Complainant had had numbing cream applied to her face in preparation of the microneedling, when having the card read, the Respondent’s agent left the room to check whether it was appropriate to proceed with the treatment having found out that the Complainant was transitioning between two therapies designed to treat MS. After the Therapist left the room she consulted with a Manager on site as per the Respondent’s internal Company protocols and she was advised that she should not carry out the treatment due to contraindications for this treatment. The Complainant was then informed that the treatment was contraindicated for a person suffering from MS and the treatment was not performed. The Complainant wrote a letter of complaint to the Respondent on 11th May 2019. The Respondent contacted the manufacturer of the microneedling product to confirm its protocol in relation to usage with clients suffering from MS. The manufacturer responded that microneedling is contraindicated for clients with MS and added “separately as it is contraindicated there is no insurance cover available”. The Respondent explained to the Complainant that it has to strictly follow guidelines set out by the suppliers of treatments it offers in its clinics. The Respondent offered the Complainant alternative skin treatments. The Complainant questioned why microneedling was contraindicated for persons suffering from MS and asserted that there was no medical basis for the contraindication. The Respondent made further enquiries from the manufacturer which responded as follows: “MS symptoms are variable and unpredictable. No two people have exactly the same symptoms, and each person’s symptoms can change or fluctuate very quickly. Symptoms include loss of sensitivity / numbness / fatigue / weakness / pain and itching / seizures / attacks, and its activity can be triggered sporadically by unknown reasons, given the huge varying symptoms / effects and volatility, it would be deemed very risky to carry out a treatment on someone diagnosed with MS”. The Law Pursuant to S.3 of the Equal Status Acts 2000 – 2015 as amended (“the Equal Status Acts”) discrimination shall be taken to occur – 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) or, if appropriate, subsection 3(b) (“discriminatory grounds”) Or C) where an apparently neutral provision would put a person referred to in any paragraph of section 3(2) 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 discriminatory grounds include: 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”), Section 4 specifically provides for discrimination on the grounds of disability and provides: 1) that 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. 3) a refusal or failure to provide the special treatment or facilities to which subsection (1) refers does not constitute discrimination if, by virtue of another provision of this Act, a refusal or failure to provide the service in question to that person would not constitute discrimination. 4) where a person has a disability that, in the circumstances, could cause harm to the person or to others, treating the person differently to the extent reasonably necessary to prevent such harm does not constitute discrimination. Section 16(2) of the Equal Status Acts provides “Treating a person differently does not constitute discrimination where the person (a) is so treated solely in the exercise of a clinical judgment in connection with the diagnosis of illness or his or her medical treatment”. It is submitted that while the Complainant was treated differently on account of the fact that she has MS and had been up to recently on a course of treatment for MS, the actions of the Respondent are justified on the grounds provided for in S.4(2) S. 4(4) and S. 16(2) of the 2000 Act. Submissions
Treating the person differently to the extent reasonably necessary to prevent harm to that person (S.4(4)). The manufacturer of the devise used in microneedling list a number of contraindications. It is submitted that the Respondent must adhere to the guidelines of the manufacturer. To fail to use the devise in accordance with the guideless would be negligent on the part of the Respondent and may result in harm to the Complainant. It is submitted that the Respondent would be in breach of duty to use a devise on a person suffering from a condition and/or receiving treatment specifically contraindicated by the manufacturer. It is submitted that the Respondent did not refuse to treat the Complainant at all on account of the fact that she had MS, rather the Respondent declined to administer a particular treatment, microneedling, and therefore acted only to the extent reasonably necessary to prevent harm to the Complainant. It is submitted that the Respondent is entitled to take a cautious approach to prevent harm to a person, including ensuring that the manufacturer’s instructions regarding the product are adhered to. It is submitted that the Respondent had: a) reasonably formed the opinion that the Complainant could cause harm to herself by having microneedling. b) that the prospect of such harm was the Complainant’s MS and/or the recent and future course of treatment for the Complainant’s MS. c) that the actions it took were reasonable and necessary. Provision of the service would give rise to a cost, other than a nominal cost, to the provider of the service in question (s.4(2)). In order to treat the Complainant, the Respondent would have to act against the instructions provided by the manufacturer of the devise used in microneedling. Such a decision to give treatment in circumstances that were contraindicated by the manufacturer would invalidate the Respondent’s insurance and thus would require the Complainant to seek out an insurer that would cover it to use a devise in circumstances of contraindication. The cost of invalidating the Respondent’s insurance is too high a cost and not a nominal cost so as to make it reasonable to give the treatment in question. While the Respondent did not seek out a new insurer it is doubtful as to whether any insurer would cover such a risk, and if it did, the cost of insuring against contraindicated situations would be prohibitive. Treated solely in the exercise of a clinical judgment in connection with her medical treatment (s.16(2)). It is submitted that many advanced beauty treatments are cosmeceutical – part cosmetic, part pharmaceutical and that microneedling is one such treatment. In this instance, the Complainant was receiving on-going medical treatment for her MS. While the Complainant may not have taken any medication on the day in question, the Complainant had been on a course of treatment and was going to commence a new course of treatment for her condition. The manufacturer of the devise used in microneedling is entitled to determine whether certain medical conditions and/or medical treatment are contraindicated with microneedling. The decision as to which conditions are contraindicated is not made by the person administering the treatment but is a clinical judgement made by the manufacturer of the treatment. Further the Respondent through its Medical Director ensures that all treatments are administered in accordance with the manufacturer’s instructions and so as not to cause harm to clients. In the first instance it is submitted that the manufacturer is entitled to exercise its clinical judgement as to the use of the microneedling in connection with a medical condition and related treatment. Further, the Respondent is entitled to rely on the clinical judgement of the Manufacturer to list various conditions or treatments as contra indicated to microneedling and take any further precautions it deems necessary based on the clinical judgement of its Medical Director to ensure that a client does not suffer harm as a result of one of the Respondent’s treatments. In A Complainant (on behalf of her daughter, J) v A Health Service Provider, the Equality Officer noted: “It is acknowledged that a purposive approach must be taken to the interpretation of any exemptions under the Acts. Therefore, the exemption provided in Section 16(2) must be interpreted in its strictest possible sense. Even in that context, however, it is clear that, in the present case, any aspect of the treatment that J received from the respondent cannot be held to be discrimination if the diagnosis of her condition and/or the decision as to what her medical treatment should be was made solely in the exercise of a clinical judgment and the treatment she did receive was connected to that clinical judgement. Therefore, with respect to the present case, Section 16(2) sets an additional barrier to the complainant in establishing a prima facie case as discrimination cannot occur unless she can show that one of the following took place: i) the decision as to J’s diagnosis and/or what her treatment should be was at least partially motivated by something other than a clinical judgment and/or ii) some aspect(s) of the treatment that J received was not related to that clinical judgment. If she can satisfy the Tribunal that one or other of these was the case, she must then show that there was adverse treatment of J by the respondent that was related to her disability. For the avoidance of doubt, it should be noted that Section 16(2) must also relate to the application of Section 4(1) to the present case. Thus, reasonable accommodation also does not arise unless the barrier to the complainant posed by the application of Section 16(2) is crossed”. Applying the above, it is submitted that the refusal of the Respondent to apply a treatment based on the fact that the applicant suffers from MS and had been on a course of treatment, that may have still been in her system, was based on a clinical decision of the manufacturer and the Respondent, and the refusal was connected to that clinical judgment. It is submitted that the Complainant has not established that the decision not to give her microneedling was at least partially motivated by something other than the clinical judgement of the Respondent in conjunction with the clinical judgment of the Respondent’s Medical Director.
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Findings and Conclusions:
The hearing of this complaint took place over two days, 13th December 2019 and 6th March 2020. On the first day of hearing the Complainant said she was surprised when the therapist informed her that she did not think she would be able to proceed with the microneedling procedure due to her having MS. The Complainant had undergone microneedling in the past although not through the Respondent and had attended the Respondent clinic in the past for another type of treatment. Prior to her attendance at the clinic on the first occasion the Complainant had completed a pre-treatment questionnaire and had clearly stated that she was suffering from MS. On her arrival for the microneedling procedure the therapist applied some face numbing cream to her face before she checked the Complainant’s previous history. This was regrettable and should not have happened, the therapist should have checked the history prior to starting the procedure. On the day in in question, 10th May 2019, the Complainant explained to the therapist that she was in a transition stage in her MS treatment, she was being changed from one medication to another different medication and had taken no medication that particular day. The Complainant informed the hearing that this was the first time ever that anyone told her she could not do something because of her MS and this appeared to upset her. The Complainant had also mentioned her intention to have microneedling to her consultant neurologist and he had given her the ok. At the first day of hearing the Respondent produced a written report from their Medical Director of Therapies Clinics UK and Ireland. This report addresses two questions in the main: 1. Whether there is any clinical basis for refusing to carry out microneedling on a client that has MS. 2. To comment on another clinic’s decision to carry out microneedling on a client with MS. The Report contains a Clinical Opinion as follows: “First, I would draw your attention to that a diagnosis of Multiple Sclerosis is contraindicated by the company that make and supply the Dermapen which is the instrument used to carryout micro needling. An article provided by DBB GRUPPS Training Manager quotes “Medical Micro needling treatment is suitable for most skin types , but not suitable for patients who have been diagnosed with Multiple Sclerosis”. Based on my clinical practice and information from the Pharmaceutical and Medical Appliance Industry, I am of the opinion that when there are strong contra indications to a treatment, we are responsible for patient’s safety. Not putting the patient at risk has always been mine and therefore on of (Respondent named) primary goals. I cannot comment on the decision making of another clinic should they have decided to proceed with this Dermapen treatment, but, this does not alter my clinical judgement that the correct decision was made. Bearing in mind all the information previously mentioned that it is contraindicated in these patients, I would not consider it to be good clinical practice to repeat what I consider to be wrong and potentially harmful to the patient. The best practice in this case was to refuse to carry out the treatment and unless further scientific information comes forward to state that patients with MS can be treated with Dermapen, I would make the same clinical decision based on best practice and to protect patients from harm. I refer again to the specific contraindications to the use of the Dermapen device in patients with MS and other autoimmune diseases and immunosuppression. If I were to prescribe a drug in my clinical practice that carries a contraindication from the manufacturer which could result in injury or death to the patient, I would be in serious breach of my ethical code as a doctor. I see no difference in refusing to endorse or sanction the treatment of a patient with a medical device that could cause injury. Such contraindications by drug or medical device companies are not taken lightly and it would be negligent on my part and the company to approve and ignore such guidelines”. The Respondent’s medical director attended the second day of the hearing of the complaint. His evidence was, to a great extent, based on the report he had prepared and was produced into evidence on day 1 of the hearing. In relation to the use of Dermapen he explained that the micro needles create micro injuries to the outer layer of skin (epidermis) and the inner layer of skin (dermis). The body in the healing process produces collagen and this is how the cosmeceutical benefits of microneedling are achieved. He did add that microneedles can touch on nerves during this process. During cross examination the Medical Director’s medical qualifications were requested and it was established that he acted as consultant for the Respondent and this entailed him working for approximately 18 – 20 hours per week. His area of expertise was in Urology and he had worked as a Consultant Urological Surgeon from 1991 to 2017. He stated that a common part of his practice was dealing with Urological problems in patients with Multiple Sclerosis. He had also worked over the years with patients suffering from other autoimmune diseases such as Lupus, Scleroderma and Rheumatoid Arthritis. It was established that the Medical Director had undergone general training in Dermatology and no training in Neurology. The Medical Director is a member of the British College of Aesthetic Medicine. The UK General Medical Council (GMC) does not recognise “Aesthetic Medicine”. The list of micro needling contraindications was supplied by the distribution company and the product manufacturer, an Estonian company, wrote to the Respondent in February 2020 confirming that as the manufacturer of the device that Multiple Sclerosis is listed as a contraindication for this device. This letter goes onto state “to clarify I can confirm that this treatment should not be carried out on clients with Multiple Sclerosis”. The representative for the Respondent cites section 16 (2) of the Equal Status Act: “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”. I am satisfied that the only reason the Complainant was refused treatment was the fact of her illness. As per section 16(2) of the Act, this does not constitute discrimination. I find in favour of the Respondent. |
Decision:
Section 25 of the Equal Status Acts, 2000 – 2015 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
I am satisfied that the only reason the Complainant was refused treatment was the fact of her illness. As per section 16(2) of the Act, this does not constitute discrimination. I find in favour of the Respondent. |
Dated: 7th September 2020
Workplace Relations Commission Adjudication Officer: Jim Dolan
Key Words:
Equal Status Act, 2000 |