Complainant

Respondent

Anonymised Parties

A Complainant

A Medical Professional

Representatives

  Self

Tina O'Sullivan Matheson Solicitors and Caoimhe Daly BL.

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00036470-001

01/06/2020

The complainant alleges that he has been discriminated against by a member of the medical profession in relation to the provision of a service to his daughter.

The Complainant is the father of a girl who is eleven years old. He is separated from his wife. His wife is the primary career of the child. He found out, in the course of family law proceedings, that his daughter was attending a GP’s practice in North Dublin. He contacted the practice by letter and raised some concerns in relation to the welfare of his daughter.  He did not get a response to that. He then found out that the doctor had given the letter to the child’s mother, his ex-wife. He found that out during the family law case. He told the doctor that she did not have consent to treat his daughter. He does accept that in an emergency she has an obligation to treat the child but in the day to day type care he does not consent.  He has no idea why his daughter is attending a doctor or what, if any, treatment she is in receipt of. He has been cut out of his daughter’s life. He wants feed back from the doctor in relation to his daughter’s medical needs.

The Complainant has not had access to his daughter since December 2017. The Complainant states that his wife has colluded with various different professional bodies to prevent him from seeing his daughter. He states that she even convinced the Court to a commission a Section 47 report.  There was an appeal. The High Court gave the Complainant interim access to his daughter, conditional upon him getting a medical report in relation to his mental health. He has not yet been in a position to provide the Court with that report.

The HSE via their National Consent policy provides guidance to practitioners in relation to the provision of medical treatment to minors. Part 2. No.1 “In any matter relating to children, the child’s best interests are of paramount importance” The doctor in this case had the consent of the child’s mother to treat the child which she was entitled to do in line with the National Consent policy.  Once the Complainant informed the doctor that he did not give his consent for his daughter to be treated, the doctor did not provide any services to the child from that point onwards. There was no obligation on the doctor to seeks the father’s consent prior to treatment. In those circumstances there can be no discrimination and the complaint must fail.

The case involves the provision of a medical service to a minor. In those circumstance it is appropriate that the decision be anonymised.

The Complainant alleges that he was discriminated against by the Respondent on grounds of Gender, Civil Status and Family Status in that the doctor treated his daughter without his knowledge or consent. In doing, he alleges she treated him less favourably than the child’s mother because he is a separated father. The Complainant is separated from his daughter’s mother for several years. The mother is primary carer of his daughter. The Complainant has not had access to his daughter since December 2017. I note the Court ordered a Section 47 report, which it would seem, has not yet been provided to the Court.

The Respondent is entitled, in law, to provide treatment to a minor with the consent of only one parent. There is no obligation on a doctor to seek the consent of both parents in relation to the provision of the service of medical care. The HSE’s National Consent Policy makes that clear. Once the Complainant formally notified the Doctor that he was not consenting to her providing treatment to the child she, from that point onwards, honoured his wishes.

“Section 3 (1) For the purposes of this Act 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 (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,

( b ) where a person who is associated with another person —

(i) is treated, by virtue of that association, less favourably than a person who is not so associated is, has been or would be treated in a comparable situation, and

(ii) similar treatment of that other person on any of the discriminatory grounds would, by virtue of paragraph ( a), constitute discrimination,

 (2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

( a) that one is male and the other is female (the “gender ground”),

( b) that they are of different (“civil status” ground)),

( c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),”

The burden of proof which applies to claims of discrimination is well established in this jurisdiction. It provides, in effect, that where facts are established by, or on behalf of a Complainant from which discrimination may be inferred, it shall be for the Respondent to prove the absence of discrimination. The test requires the Complainant to prove the primary facts upon which he relies in seeking to raise an inference of discrimination. It is only if this initial burden is discharged and the Adjudication Officer is satisfied that the facts as established are of sufficient significance to raise a presumption of discrimination, that the burden passes to the Respondent.  If the complainant does not discharge the initial probative burden required by him, the case cannot succeed.

Having carefully considered the evidence of both parties, I am satisfied that the Complainant has not established a prima facia case of discrimination on any of the three grounds, Family Status, Civil Status or Gender.  In circumstances where the treating doctor was entitled in law to treat the child with only one parent’s consent and had no obligation to seek out the other parent to inform them of the situation, she could not, and did not, treat him any less favourably than anyone else.

The complaint fails.

The complaint fails.

Equal Status. Consent. Minors. Medical Treatment. Separated Parents. Discrimination. Gender. Family Status. Civil Status.