ADJUDICATION OFFICER DECISION
Adjudication Reference: ADJ-00035976
Parties:
| Complainant | Respondents |
Anonymised Parties | A patient | A Hospital and A Doctor |
Representatives | Self-represented | A HR Consultant and A Solicitor |
Complaints:
Act | Complaint Reference No. | Date of Receipt |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00047150-001 | 12/11/2021 |
Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000 | CA-00048020-001 | 06/01/2022 |
Date of Adjudication Hearing: 07/02/2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Procedure:
On the 12th November 2021, the complainant referred a complaint pursuant to the Equal Status Act against the Hospital. On the 6th January 2022, the complainant referred a complaint pursuant to the Equal Status Act in respect of the Doctor. The complaints relate to discrimination on grounds of gender, race and disability. The complaints were heard together under the same adjudication reference.
The complainant attended in person. The Hospital was represented by a HR consultant and hospital managers attended. The Doctor attended the hearing and was represented by a solicitor.
This case involves sensitive medical information pertaining to the complainant. The decision is, therefore, anonymised. For this reason, I have taken the additional step of anonymising the identities of the representatives.
In accordance with section 25 of the Equal Status Act, 2000following the referral of the complaints to me by the Director General, I inquired into the complaints and gave the parties an opportunity to be heard by me and to present to me any evidence relevant to the complaints.
Background:
The complainant asserts that she was discriminated against on grounds of gender, race and disability. The respondents deny the claims. |
Summary of Complainant’s Case:
The complainant attended the Doctor on the 15th July 2020 for a consultation regarding traumatic stress. The complainant sought medical treatment after being the victim of a serious sexual assault in January 2020. The complainant asserts that there were inaccuracies in the Doctor’s medical notes. She sought to have these corrected. While a number of amendments were made to her medical notes, the complainant strongly challenged the reference in the medical note to her being a binge drinker. The complainant submitted a toxicology consultant, which held that the complainant was a limited user of alcohol. The complainant outlined that the reference to binge drinking was victim-blaming and part of a stereotype that the victim of sexual assault was blameworthy because of their alcohol use. This amounted to gender discrimination. |
Summary of Respondents’ Case:
The respondents deny the claim of discrimination. The respondents raised time issues and the absence of notification. The doctor submitted that she was then an employee of the hospital, and the hospital was the proper respondent to the claim. |
Findings and Conclusions:
These complaints were heard at adjudication on the 7th February 2023. The hearing took place remotely. I readily appreciate that the complaints address very distressing events for the complainant. During the hearing, the complainant became distressed. This took the form of the complainant becoming very abusive to the other parties present, in particular the Doctor. It involved the complainant swearing many times at the other parties, for example calling the doctor ‘a f****** c***’. I took the hearing as far as it could go. I now issue substantive findings on the basis of what was adduced at the hearing and the submissions and documentary evidence submitted. In principle, I accept that the misuse of a term like ‘binge drinking’ could amount to less favourable treatment on the gender ground, in the context of placing blame on the victim of sexual violence. I agree that it could be part of a stereotype where the victim of sexual violence is blameworthy because of their use of alcohol. I accept the complainant’s evidence that she was not a heavy drinker at the time of the consultation in 2020 and nor was she a life-long binge drinker. The complainant had a low intake of alcohol which increased after the assault in early 2020 and she sought the medical consultation to address these issues. CA-00047150-001 This is a complaint against the Hospital respondent. I agree that in these circumstances, it is vicariously liable for the actions of its employees, including the doctor. As stated by the doctor in the submission to the regulator of the 12th April 2021, this was the exercise of clinical judgement. I appreciate that the complainant disagrees with the term ‘binge drinking’. I find that this was the use of a clinical term and the exercise of clinical judgement. As it was the exercise of clinical judgement, it falls within the ambit of section 16(2)(a) of the Equal Status Act, which provides: ‘Treating a person differently does not constitute discrimination where 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, therefore, excluded from the ambit of discrimination. I dispense with the requirement for notification in the absence of any prejudice, per section 21(3)(a)(ii). CA-00048020-001 This is the complaint against the doctor. It is clear that the doctor made several errors in the medical notes taken at the consultation with the complainant of the 15th July 2020. I appreciate that this consultation took place in-person during the pandemic and the doctor made changes to correct the medical notes. She apologised, including for a delay in referring the complainant to therapy. I accept that the doctor’s reference to binge drinking was the exercise of clinical judgement as the doctor stated in the submission of the 12th April 2021. In the doctor’s clinical assessment, the alcohol use described by the complainant fell within the clinical definition of binge drinking. As such the clinical judgement falls within the ambit of section 16(2) as set out above. It is excluded from the ambit of discrimination. |
Decisions:
Section 25 of the Equal Status Acts, 2000 – 2018 requires that I make a decision in relation to the complaint in accordance with the relevant redress provisions under section 27 of that Act.
CA-00047150-001 I decide that the respondent hospital did not discriminate against the complainant as this was a matter of clinical judgement within the ambit of section 16(2) of the Equal Status Act. CA-00048020-001 I decide that the respondent doctor did not discriminate against the complainant as this was a matter of clinical judgement within the ambit of section 16(2) of the Equal Status Act. |
Dated: 26th June 2023
Workplace Relations Commission Adjudication Officer: Kevin Baneham
Key Words:
Equal Status Act / clinical judgement / section 16(2) |