Complainant

Respondent

Anonymised Parties

An individual

Health Care Provider

Representatives

  Self-represented

 Self-represented

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00046775-001

21/10/2021

The complainant made a number of aural and written submissions, summarised below.

The respondent sent their submission to the WRC on 21st June 2022.  It was not received by the complainant or the adjudication officer until 28th June 2022, the day of the hearing.  The complainant was requested to consider whether the matter should be postponed to allow him the time to consider the 4 page submission.  However, he chose to continue with the hearing.  

Following the hearing, when he had an opportunity to read fully the respondent’s submission at his own pace, the complainant issued a response summarised as follows:

I am an autistic person with several other conditions. This makes it very difficult for me to receive information accurately, it takes a long time then to process and putting thoughts together to reply so that other might understand well is very hard. I process things in a visual style not in language so written expression (being somewhere between the two) is easier to understand and use than talking. I think I have made the points that I raise here or tried to make them during the hearing, but I know it’s hard for people to catch the salient idea because I circle around the subject a lot (boring them) then say it once and move on suddenly, and they miss the point (or so I am told). It’s a feature of my autism. In view of the late arrival of the letters during the tribunal from the respondents I would like to take the opportunity to clarify my responses to them now. As my disability makes processing new information take much longer than normal it would be prudent to confirm that my response is clearly made and understood. Normally I have to allow time for to fully understand new information and then consider my reply, which was not afforded at the time of the hearing, due to the late arrival of the letters during the actual hearing. Therefore I Will address the points made in the letters here in turn. I have attached relevant documents and references in reply to those included in the letters that were presented late. I will go through the respondent’s submission and comment, but first I would like to say something about why I am bringing the complaint in the first place, because It has been extremely difficult for me to appeal and bring this complaint and especially to make the legal argument in terms of both the mental cost to myself and the sheer effort of manipulating all this political policy, medical knowledge and legal information, about which I knew little and was upset to find out. I grew up in the belief when you need it you are entitled to get access to medical services, especially for a disability or a person at risk. Coming to understand the extent and uncaring methodology of the deliberate exclusion from medical treatments, rights and society) of a whole cohort of vulnerable people has been very upsetting. People who never had the good fortune to be able to organise and network to argue or protect themselves find their disability is being used against them. The public view manipulated by authorities and services through wilful misinformation against a background of lack of services, lack of discussion, ignorance and stigma. The process was very very stressful and upsetting but nobody would know to look at me or talk to me how upset I might be unless they were familiar with me or autistic persons and their presentations. An Autistic person such as I will often take a singular view of things and tend to focus very intensely upon a single idea. We make plans and rules that determine how we understand ourselves and the world. I came to understand that I might be autistic and over the years as difficulties mounted up it became essential in my mind, to confirm ASD for me to be able to hang on and look to the possibility of having a future. The confirmation of ASD was confirmation of who I am and the key to understanding why I do things or behave and feel so differently to everyone else. I believed and understood that the official confirmation of Autism was vital to me having any future chances of happiness or social connection, and the ability to carry on trying with life, it became essential to having any chance of me asking for any help or even being able to continue to access any kind of public place or event including the shops, without supports and I was very worried about what will happen in the future. Would I be misdiagnosed or have an unchecked medical condition that autistic people do often have like seizures epilepsy or diabetes, My friend died suddenly when he was 50 of one of those autistic seizures. I might end up in prison or a clinic or be misdiagnosed with dementia. People wouldn’t properly understand me and won’t understand them but would be left behind and blamed as usual for not trying to fit in or making mistakes and bad choices; blamed for my own disability, and I have said sorry for who I am a lot. I had been waiting a long time to be seen for what I believed was going to be an assessment that could unlock a pathway to getting better and being happier.

The complainant then addressed in detail the respondent’s submission. A brief summary of some of the points made are below. 

The respondent asserted that the complaint is misconceived and cannot be upheld as decisions in relation to the complainant were made on a clinical basis, that Section 16(2) of the Acts states that "treating a person differently does not constitute discrimination where (a) the person 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, in the present case, any aspect of the treatment or provision of service that the complainant received from the respondent cannot be held to be discrimination if the diagnosis of his condition and/or the decision as to what his medical treatment should be was made solely in the exercise of a clinical judgment and the treatment he did receive was connected to that clinical judgment.

The complainant had submitted that the policy regarding adult assessment of ASD Is a “Special Policy” which relies upon the 2005 Disability Act to exclude people from access to the label ASD which would provide access to disability supports.  The complainant submitted that it was not solely a clinical decision that excluded him from treatment.

He stated that adults coming from CAMHS are able to access treatments that he is not because of their age and the fact of them having been previously treated. The presumption of coverage of co-occuring conditions of ASD by the Disability act means that as no scans, checks or risk management or basic preventative medicine were considered, whereas it is routing in children’s ASD services in ASD adults with ID services and in most other areas of medicine. Young people are sent for external assessments for ASD occasionally and also adults who are either at risk or judged to appear severely upset in presentation have been sent for ASD assessment too.

The complainant stated that he went to the doctors and found that his referral for the ASD and ADHD assessments had not been processed.  He stated that when he attended the clinic he was told he was being assessed for ADHD not ASD.  He had to attend at his own expense, a Psychologist in Belfast.  The complainant outlined research he had done on ASD.  He submitted that the 2005 Disability Act effectively prevents him from appropriate screening and treatment for many possible related conditions.  He submits that he has been discriminated against and the Disability Act has prevented him from accessing appropriate screening, diagnosis and possible treatments.

The dispute concerns a complaint by the complainant alleging that he was discriminated against by the respondent, on the ‘disability ground’ and ‘age ground’ contrary to the Equal Status Acts in terms of Sections 3(1)(a), Section 3(2)(f) and Section 3(2)(g) of the Equal Status Acts and contrary to Sections 4(1) and 5(1) of the Equal Status Acts in that the respondent failed to provide him with reasonable accommodation and discriminated against him on the disability and age ground by not providing services and or appropriate treatment. In short, the complainant states that the respondent failed to accommodate him in terms of his ability to access services. The applicable legislation is set out below.

Applicable Legislation

Section 3(1) For the purposes of this Act discrimination shall be taken to occur—

(1). 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 (3B),(in this Act referred to as the discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned.

 Section 3(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are: (f) subject to subsection (3), that they are of different ages (the “age ground”), (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(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 5(1) A person shall not discriminate in disposing of goods to the public generally or a section of the public or in providing a service, whether the disposal or provision is for consideration or otherwise and whether the service provided can be availed of only by a section of the public.

Below is a timeline of events concerning the complainant’s engagement with the respondent,

31 March 2021 - Referral from GP (dated 07/10/20 – only received on 31/03/21) He is keen to be assessed for adult ASD…Routine waiting list for Out-patient Consultation with Mental Health Services

· 21 April 2021 - Follow up from GP to find out if client was on waiting list  - Follow up with Administration Staff for Out-Patient Consultation date - Confirmed for 20/05/21

 · 20 May 2021 - First outpatient consultation with community mental health team. 

 · 26 May 2021 - Client attended outpatient clinic without appointment, demanded to be seen. Seen by the same registrar who did initial assessment. Client requested formal assessment for autism spectrum disorder so that he may avail of additional community supports through AsIAm. Plan Registrar booked Outpatient Appointment with Consultant Psychiatrist for further psychoeducation around ASD diagnosis and management as well as to address questions from client.

· 27 July 2021 - Seen by Consultant Psychiatrist History suggestive of Autistic Spectrum Disorder,  …Plan 1. Discussed role of mental health team in managing co-morbidities of autism spectrum disorder; 2. Advised psychologists in private practice may be accessed for formal testing and diagnosis of ASD; 3. Discussed supports including AsIAm and Advocates for Personal Potential (APP) Checked ADHD referral sent off to Dr.A 26/05/2021;  Feedback sent to GP.

· 05 January 2022 - Letter received from ADHD Service: seen on 20 December 2021, started on atomoxetine for ADHD and due review in 3 months. Plan: Await follow up

· 02 March 2022 - Letter received from ADHD Service. seen 28 February 2022, atomoxetine continued. Suggested referral to CBT and OT supports within community mental health team.  Plan: Discussed in Multi-Disciplinary Team Meeting 03 March 2022 – Referral to Mental Health Services - Psychology for CBT and to Occupational Therapy – done

· 30 March 2022 - Letter sent to client by psychologist advising he is on the waiting list for service.  

Equal Status Act – Section16(2)

The respondent states that the matter is entirely misconceived as the complaint relates to the exercise of clinical judgement which is exempted from the application of the Acts in the context of section 16. This is a fundamental obstacle to the complainant succeeding in his claim and that the respondent submits that he was treated in the appropriate manner by the professionals and by reference to his treatment plan.

· No legitimate comparator provided by the complainant

· The complainant has not established a prima facie case of discrimination based on disability and age

· There is a current plan with supports in place for the complainant

· There is no evidence of discrimination and it is abundantly clear that the respondent has done all that can reasonably be expected of it in providing service and reasonable accommodation to the complainant

· the complainant’s treatment was appropriate as per Clinical Judgement of Mental Health Team 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 can rely in asserting that prohibited conduct has occurred in relation to him. In deciding on the complaint, therefore, the Adjudicator 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. The respondent did "all that is reasonable to accommodate the needs of a person with a disability by providing special treatment or facilities", and whether "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." If relevant to considering what is reasonable in this context, and in light of Section 4(2), the Adjudicator must take into account the provision of the special treatment and facilities referred to in Section 4(1) would "give rise to a cost, other than a nominal cost" to the respondent. Section 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. The assessment of autism spectrum disorder in an adult would include a multidisciplinary assessment done by a psychiatrist, psychologist and occupational therapist trained in this specialised test. This includes various sources of collateral information being obtained from schools and parents, as well as a standardized test (ADOS-2). The detailed nature of this assessment requires around two to three weeks of a multidisciplinary team input and would not be nominal in cost. The complainant was referred early in his engagement with the respondent to AsIAm. Under the section on their website How do I find a diagnosis? he would have read the following: Unfortunately, at the moment in Ireland, there are no public assessment teams dedicated to adult diagnosis. Currently, the vast majority of adults who think they might be autistic can only get an assessment privately.

The substantive question in the present case is whether there has been adverse treatment of the complainant by the respondent arising out of his disability and age.

Section 16(2) of the Acts states that "treating a person differently does not constitute discrimination where (a) the person 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, in the present case, any aspect of the treatment or provision of service that the complainant received from the respondent cannot be held to be discrimination if the diagnosis of his condition and/or the decision as to what his medical treatment should be was made solely in the exercise of a clinical judgment and the treatment he did receive was connected to that clinical judgment. Therefore, with respect to the present case submitted by the complainant, Section 16(2) sets an additional barrier to the complainant in establishing a prima facie case as discrimination cannot occur unless he can show that one of the following took place: i) The decision as to the complainant’s diagnosis and/or what his 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 the complainant received was not related to that clinical judgment. There was no adverse treatment of the complainant by the respondent that was related to his age or 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. The treatment that the complainant received was based entirely on the  respondent’s own clinical judgment(s) with respect to his condition. There is no evidence that any of the professionals were concerned or swayed by anything other than clinical considerations in the treatment that the complainant received.

Every aspect of the treatment of the complainant arose from the HSEs clinical judgment as to what that treatment should be. There can be no doubt that the treatment and services he has received, and continues to receive, has been and is connected with that clinical judgment. The treatment provided was carried out solely in the exercise of a clinical judgment.

Section 16(2) was inserted into the Acts because the WRC is not qualified to second guess the judgment of a medical professional with respect to the correct treatment of an individual in any particular case. In any event, and in all the circumstances of the present complaint, it would be ultra vires for the WRC to consider the matter. It is submitted that every aspect of the complainant’s treatment has been carried out solely in the exercise of a clinical judgment and in reliance with Section 16(2)(a) of the Acts. Therefore, in all the circumstances of the present case, the treatment of the complainant by the respondent cannot be considered to be discrimination as defined by the Acts. Finally, the complainant has failed to establish a prima facie case of discrimination on the disability and age ground in terms of Sections 3(1)(a), 3 (2)(b), 3(2)(g), Section 4(1) and Section 5(1) of the Equal Status Acts.

Statement by Dr B, Consultant Psychiatrist:

Autistic Spectrum Disorder is not a disorder of mental health. It is classed as a neurodevelopmental disorder which may result in impairments in communication, social interaction and behavior. This is reflected in the positive language more recently adopted and used to describe someone with these difficulties. Previously normal and abnormal caused stereotyping and stigmatization of people living with autism. We now use terms like neurodiverse and neurotypical instead. Not all people living with autism will require the services of a mental health team. Being on the autistic spectrum does however mean people are more likely to suffer from difficulties which would bring them into contact with mental health services. These co-morbid conditions include but are not limited to intellectual disability, ADHD, anxiety, depression and OCD. Suggesting all people living with autism be treated as patients of a mental health team is discriminating and stigmatizing. Diagnosis and management of autism does not fall under mental health services, but with specialized services in primary care. The Children’s Disability Network includes the Early Intervention Team and the School Age Team which assess, diagnose and manage autistic spectrum disorder from birth to age 18. The CAMHS service is not involved with the diagnosis or assessment of ASD in this age group, but similar to adult services will assess and manage any co-morbid mental health problems. The complainant was referred by his general practitioner for assessment for adult ASD as well as ADHD. The GP is aware that mental health services do not diagnose ASD but do assess and manage co-morbidities such as ADHD which are often highly common. The initial assessment took place on 20/05/2021. This was a full biopsychosocial assessment conducted by the registrar for which an hour time slot is made available. This consists of a full psychiatric assessment of current difficulties in the context of relative medical, psychiatric and developmental history. The outcome of this assessment as communicated to the complainant was a working diagnosis of ADHD and social anxiety on the background of a likely autistic spectrum disorder.

The management plan was discussed with the complainant. It included a referral to specialized adult ADHD diagnostic services, as well as online-based supports for social anxiety. There was no further role for the community mental health team at that stage, but the GP was advised to please re-refer him should anything arise in the future. He was signposted to community supports including AsIAm and APP (Advocates for Personal Potential).  Any service user presenting in the way like the complainant did would have been offered the same level of care including full psychiatric assessment for co-morbidities of autistic spectrum disorder, supportive psychoeducation, referral to appropriate supports including specialized clinics for ADHD, and holistic management of acute mental health co-morbidities such as depression and anxiety. If no sign of current acute or severe mental health difficulties are noted, supports are signposted and the client is discharged from the clinic back to their GP as their primary care provider.

The Complainant has contended that he was discriminated against by the Respondent on the grounds of age and disability.  He also contends that the Respondent has failed to provide him with reasonable accommodation.  The case revolves around the treatment of the complainant as he perceives to be deficient in respect of diagnosis, screening and possible treatment or lack thereof of his condition.  In his aural and written submissions, the complainant referred to many aspects of the condition ASD and his concerns over deficiencies in the health system and legal provisions and deficiencies in the 2005 Disability Act.   

The applicable law

In this instant case, the Complainant contends that the respondent failed to provide him with a service in relation to his autism.  Having reviewed the evidence and submissions, I note the complainant’s dissatisfaction with the service provided, and his frustration at the lack of assistance with what has been referred to as a “dual diagnosis”.  which undoubtedly involves exercise of clinical judgement.  In that context, Section 16 (2) of the Act is relevant.  Section 16 (2) provides:

(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.

I note the chronology submitted by the respondent in which the clinical treatment of the complainant is referenced in detail.   I note the submissions by both parties on the autism spectrum disorder (ASD).  I note the evidence of the consultant psychiatrist (outlined above) during the hearing.   I find that this evidence along with the chronology provided, points to clinical judgements in connection with the medical treatment of the complainant.  

I concur with the respondent's assertion that Section 16(2) was inserted into the Acts because the WRC is not qualified to second guess the judgment of a medical professional with respect to the correct treatment of an individual in any particular case.  I find that as he has been treated in the exercise of a clinical judgment in connection with his medical treatment the respondent has not therefore discriminated against the complainant.

I note the complainant believes that the 2005 Disability Act allows discrimination against him and he referred throughout to the discriminatory elements in relation to the provision of services for children and young persons.

Section 14 (1) (a) (i) of the Equal Status Act provides:

“Nothing in this Act shall be construed as prohibiting (a) the taking of any action that is required by or under - (i) any enactment or order of a court..”

Section 2 of the Interpretation Act 2005 defines an “enactment” as “an Act or a statutory instrument or any portion of an Act or statutory instrument”.

O’Malley J in the High Court Case of G v The Department of Social Protection [2015] IEHC 419, stated the Equal Status Act could not override the terms of another statutory scheme.   

Equal Status Act, disability, autism, not upheld.