Complainant

Respondent

Anonymised Parties

A Patient

A Clinic

Act

Complaint Reference No.

Date of Receipt

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

CA-00051277-001

23/06/2022

In the ES1 form which she sent to the respondent on January 31st 2022, the complainant said that her complaint is that the “Clinic refused to provide treatment to a rape victim who was suffering from PTSD.  Terminated services due to intolerance of behavioural issues associated with PTSD.”

Describing how she was treated less favourably than others, she wrote:

“Failed to inform themselves of patient’s medical history and reason for seeking treatment.  Cancelled treatment prior to pre-arranged appointment with the patient’s husband on the 1st February 2022, where the patient’s husband was due to discuss appropriate management and care of PTSD with the Clinic.”

The respondent’s solicitor replied to the ES1 form on February 28th 2022.  In its response, the clinic said that it was in the course of providing preliminary treatment to the complainant in January 2022.  On January 18th, during a telephone conversation with a member of the clinic’s staff, the complainant used inappropriate and aggressive language.  Management was notified about the call and following a review of this encounter and previous communications with the complainant, the clinic made the reluctant decision not to provide her with further treatment.

The respondent’s submission states that the reason it ended the patient relationship was because of the duty of care it owes to its staff to be treated with respect.  It stated that the clinic is within its rights to decline to provide treatment where service-users engage in inappropriate and / or aggressive communication towards staff.  The clinic was entitled to decline to provide services on the basis that further aggressive and inappropriate communication from the complainant could cause harm to the clinic’s staff.

The complainant set out her case in a submission she read at the hearing and which she sent to me afterwards.  She said that she was raped on January 24th 2020 by an unknown assailant and she was referred to the clinic by a reproductive endocrinologist who she attended in the immediate aftermath of the assault.  She said that she informed the clinic about the rape and about the fact that she was diagnosed with post-traumatic stress disorder (PTSD).  She said that she explained to them that she was experiencing symptoms of post-traumatic stress.  The complainant was not seeking fertility treatment and her request from the clinic was to have her embryos frozen until the symptoms of post-traumatic stress were resolved or had significantly improved. 

It is the complainant’s case that PTSD is encompassed by the definition of a disability, as it is an illness or a disease which affects a person’s thought processes, perception of reality, emotions or judgement and which results in disturbed behaviour.  A person experiencing a trauma-triggered response as a result of PTSD experiences a profound effect on their emotions over which they have no control.  People in these circumstances are usually aware of their personal trauma triggers and will provide a trigger warning or explanation to prevent the occurrence of a trauma-triggered response.  Immediate cessation of the trigger will ensure that an affected person will not experience a trauma-triggered response and the impact caused by the trigger can be relieved.  The complainant said that the clinic did not observe the trigger warnings, with the result that she experienced severe, trauma-triggered responses during her treatment.

The complainant submitted that she was treated less favourably by the clinic because she has PTSD.  They failed to provide reasonable accommodation for her disability and ignored or dismissed her evident trigger warnings.  She said that she informed the clinic that the rape had occurred in January 2020 and that she did not want an appointment around the anniversary of its occurrence.  She said that she finds this time to be a natural trigger and difficult from an emotional perspective, without adding obvious further triggers.  She said that medical appointments are a particularly strong trigger since she was raped and that she cannot tolerate appointments or procedures in the month of January.  She explained that this is because the procedures involve interference with her body which are outside her control and she finds that doctors and medical staff often fail to acknowledge her requests in relation to her body and her treatment.

When a trigger response occurs, the complainant said that her response is one of extreme anger, where she usually screams at the person or people, telling them to stop, to get away from her or to “f-off.”  This can progress to loud screaming and uncontrollable crying.  However, she said that, if the trigger warning is respected, the trauma response will not occur.

The complainant said that the clinic terminated her treatment because of “the manner” in which she dealt with their staff.  She said that they were apparently oblivious to the fact that her conduct was a trauma-triggered response.  She also claims that her behaviour was triggered by how she was treated by the clinic’s staff, despite trigger warnings being provided.

By failing to observe the trigger warnings and by failing to acknowledge and understand the nature of her disability which she disclosed at the commencement of her treatment, the clinic did not uphold its duty in relation to the complainant’s health and safety.  She said that a patient with a disability has a right to be provided with a safe place for treatment which accommodates their disability and facilitates the most suitable treatment.

In terms of comparators, the complainant referred to people with epilepsy and the potential effect on them of strobe lighting.  She said that it is common now to hear warnings about strobe lighting before television and theatre performances, because of the risk that they may cause an epileptic seizure.  The complainant said that, in her view, the symptoms of PTSD are similar, where a trigger must be avoided so that the triggered response can be prevented.  She said that it would be unthinkable to expose a person with epilepsy to strobe lighting after the patient disclosed the risk of a seizure.  The behaviour of someone in the throes of an epileptic seizure would never be described as violent, unsafe or unacceptable.  A doctor would not record the seizure and circulate the information to multiple people in an organisation for them to confirm or comment on.  An epileptic seizure would not be referred to as “the manner” of the patient, in the way her behaviour was referred to.

As a second comparator, the complainant referred to a person with an allergy.  Such a person would avoid the known allergen so that an allergic reaction could be prevented.  If a person disclosed an allergy to a doctor, they would never be required to take the known allergen in medicine or otherwise.  The complainant submitted that the symptoms of PTSD are similar to an allergic reaction; the trigger for PTSD is like an allergen and the trigger must be avoided to prevent a trauma-triggered response.  She said that the treatment she was subjected to in the clinic would not have occurred with a person with a known allergy.

The complainant claims that she was discriminated against on the grounds of her disability and she was not provided with appropriate accommodation that should have been provided to her as a person with a disability.

The complainant submitted that the discrimination based on her disability has resulted in further discrimination on the grounds of her family status, constituting an unjustified interference with her reproductive rights.  The clinic terminated her treatment three months before her 40th birthday, and the chance of successful egg-harvesting and embryo transplanting has been significantly reduced and may never be successful.  She said that she has no words to convey the devastating consequences of this situation.

In addition to treating her less favourably because of her disability, the complainant said that the clinic has further discriminated against her by inaccurately classifying and describing the symptoms of PTSD in their submissions.

Finally, there have been privacy infringements, where the clinic revealed her identity as a rape victim, and secondly, by circulating incorrect information relating to her and the harm suffered to individuals in the respondent’s organisation.   

Following the hearing, the complainant provided me with medical evidence that, at the time of her treatment in the clinic, she was attending a counselling psychologist for treatment for PTSD arising from the sexual assault in January 2020.

Evidence of the Complainant at the Hearing

The complainant said that she attended the respondent’s clinic after she was raped on January 24th 2020.  She informed the respondent’s staff about the rape and its effect on her.  She was not trying to conceive but, was seeking fertility preservation services (embryo freezing) until her symptoms of PTSD improved.

It is the complainant’s position that PTSD comes within the definition of disability at section 2(e) of the Equal Status Act:

(e) a condition, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour[.]

Since she was raped in January 2020, the complainant said that she becomes very emotional in January.  She said that the appointments for fertility preservation involve interference with her body and she told the respondent that she didn’t want any treatment in January.  When she had a trauma-triggered response to the treatment, the respondent terminated its services to her.  She argued that, by failing to understand the triggers, the respondent did not look after her health.  She said that the respondent failed to acknowledge her disability or to provide accommodation for her disability.  She submitted that the comparators are a person with epilepsy, or a person with allergies.  A person with epilepsy would not be subjected to strobe lighting.  A doctor treating a person with an allergy would not ask the patient to take a substance that triggers an allergic reaction.  She said that PTSD is similar, and that the trigger that causes the PTSD must be avoided.

It is the complainant’s case that she was treated in a discriminatory manner for having a disability.  As this treatment occurred three months before her 40th birthday, she said that it interfered with her reproductive rights.  She submitted that a man would not be discriminated against in this way.

In response to questions from me, the complainant said that her response to the staff member on January 18th 2022 was a severe trauma-triggered response.  When I asked her why she didn’t contact the clinic after the telephone call and ask for some understanding of her situation, she said that she was going through a very difficult time and that she wasn’t able to go back.  She said that the trigger was the circulation of information about her among the clinic’s staff.

The complainant said that, after the rape, she attended counselling until March 2020.  Then she began to have panic attacks and in July 2020, she was diagnosed with PTSD.  She started treatment with a counselling psychologist in September 2020.  After the hearing, the complainant sent me evidence from the consultant psychiatrist she attended in July 2020 who confirmed that, in her opinion, the complainant was suffering from post-traumatic stress disorder.  The psychiatrist recommended cognitive behavioural therapy (CBT).  Between September 2020 and July 2022, the complainant attended CBT sessions with a counselling psychologist.  The complainant provided me with a letter from the psychologist confirming that she attended her for treatment.

In advance of the hearing, Mr Whelan provided a comprehensive submission in which he set out the respondent’s case.

The complainant was a patient of the respondent’s clinic from July 2021 until January 2022.  During a telephone call on January 18th, the complainant spoke in an abusive manner to a member of staff.  Her manner of speaking was unacceptable to the extent that the management decided to terminate the client / patient relationship with the complainant.

On the form she submitted to the WRC, the complainant appears to allege discrimination on multiple grounds; gender, family status, civil status, sexual orientation, age and disability.  However, in the narrative on the form she seems to limit the allegation of discrimination to the disability ground.  She states that the clinic “informed me that they would not be providing fertility services …due to the fact that I had PTSD.”  She also said she was informed by the clinic on the 31st January 2022, after they became aware of her PTSD and its symptoms, that they would not be providing fertility services.

The Respondent’s Case

The respondent submits that the complainant’s case is misconceived.  The respondent terminated the client / patient relationship solely because of the way the complainant dealt with their staff.  The respondent did not terminate the relationship in the manner alleged by the complainant.

The respondent’s submission refers to the transcript of a telephone call of January 18th 2022, a copy of which was included in their papers at the hearing.  This was the basis of the respondent’s decision to terminate its relationship with the complainant.  During the call, the complainant used aggressive, profane and insulting language to the respondent’s employee.  In a follow-up call on January 25th, the complainant ended the call by hanging up.

Following these calls, senior management met to discuss what had occurred and, as the respondent does not tolerate abusive and aggressive behaviour towards its staff, a decision was made to terminate the client / patient relationship.  This was confirmed by letter on January 28th 2022.  On January 31st, the letter was sent electronically via the respondent’s client portal.  The complainant replied on the same date, using profane language in response to the decision to stop providing her with a service.  In correspondence on February 11th 2022, while she was attempting to retrieve her file, the complainant repeated her offensive tone.

It is the respondent’s case that it has a duty under both common law and the Health, Safety and Welfare at Work Act 2005 to maintain a safe place of work for its staff.  As far as reasonably possible, the respondent aims to ensure that staff are not subjected to abusive or threatening behaviour.  In this regard, the respondent does not tolerate verbal or physical abuse by clients.

The EU definition of work-related aggression and violence[1] is,

“Any incident where staff are abused, threatened or assaulted in circumstances related to their work, involving an explicit or implicit challenge to their safety, well-being or health.”

The respondent’s staff were abused and subjected to aggressive and profane language by the complainant and the respondent finds that this conduct is unacceptable.  The respondent will demonstrate that its policy regarding the proper treatment of its staff is a fair, proportionate and responsible one and that it was applied in a proper and fair manner in relation to the complainant.

The decision to end the patient’s treatment was totally unrelated to any protected ground under the Equal Status Act (“the Act”).  Notwithstanding this position, the respondent’s reply to the ES1 form refers to the decision of the Court of Justice of the European Union (CJEU) in HK Danmark v Dansk almennyttigt Boligseskab[2] as a precedent for a finding that PTSD does not constitute a disability for the purposes of the Act.  Even if it were the case that the complainant suffered from a recognised disability, reasonable accommodation of a disability does not extend to the toleration of aggressive and inappropriate communication.

The Relevant Law

Mr Whelan referred to section 3, 4 and 5 of the Act which sets out what comprises discriminatory treatment in the context of the provision of goods and services.  He asserted that, at no time was the complainant treated any less favourably than any other patient of the respondent.  The respondent submits that the requirements of the Act in relation to access to services for people with a disability does not extend to permitting an individual to conduct themselves in an aggressive and abusive manner when dealing with staff from the organisation providing the service.

Burden of Proof

Section 38A of the Act sets out that the burden of proof in discrimination cases means that it is for the complainant, in the first instance, to show that she was discriminated against by the respondent.  In support of her claim, she has made incorrect and untrue assertions by claiming that the respondent refused to provide her with a service because she suffers from PTSD.  The respondent relies on the letter sent to the complainant on January 31st 2022 as the basis for terminating the client / patient relationship.  The respondent submits that the complainant has failed to establish “prima facie” evidence that they discriminated against her.

Summarising the respondent’s case, Mr Whelan said that he accepts that PTSD is a disability, but that the complainant provided no evidence that she was suffering from PTSD.  He said that she has submitted examples of comparators, with no expert basis for her submissions.  Mr Whelan asserted that the complainant was not treated any differently to how another member of the public would have been treated.  The respondent refused to continue to treat her because of her conduct.

The Legal Framework

The preamble to the Equal Status Act 2000 states that its purpose is,

…to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access.

In keeping with this legislation, the complainant has a right to access the services of the respondent without being discriminated against.  The complainant suffers from PTSD and she complains that she was discriminated against because of this.  The responsibility of a service provider to a person with a disability is addressed at section 4(1):

(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.

Sub-sections (2) to (5) of section 4 are not relevant to this complaint.  The definition of a “provider of a service” is set out at sub-section (6)(b): 

(6) In this section -

“provider of a service” means -

(b) the person responsible for providing a service in respect of which section 5(1) applies…  

“providing”, in relation to the special treatment or facilities to which subsection (1) refers, includes making provision for or allowing such treatment or facilities, and cognate words shall be construed accordingly.

Section 5(1) of the Act provides that:

A person shall not discriminate in the disposing of goods to the public generally or to a section of the public, or in providing a service, whether the disposal or provision is for a consideration or otherwise and whether the service can be availed of only by a section of the public.

The complainant argues that, by discontinuing its services to her, a person suffering from PTSD and, by failing to provide special treatment or facilities which may have accommodated her disability, the respondent discriminated against her.  She also claims that she was discriminated against based on her family status, because the effect of the ending of the respondent’s services is an increased risk that she may not become pregnant.  This claim is also based on the fact that there are only a few clinics providing embryo-freezing in Ireland.

The Burden of Proof

Section 38A of the Equality Act 2004 sets out the burden of proof in discrimination complaints:

“(1) Where in any proceedings, facts are established by or on behalf of a complainant, from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The effect of this is to place the burden of proof in the first instance on a complainant, to establish facts which, on an initial examination, lead to a presumption that discrimination has occurred.  Referred to as “prima facie” evidence, in the context of this adjudication hearing, the onus is on the complainant to show that, based on the primary facts, she has been discriminated against by the respondent because of her disability. 

“Disability” is defined in section 2 of the Act as:

(a) the total or partial absence of a person’s bodily or mental functions, including the absence of a part of a person’s body,

(b)  the presence in the body of organisms causing, or likely to cause chronic illness or disease,

(c)  the malfunction, malformation or disfigurement of a part of a person’s body,

(d)  a condition or malfunction which results in a person learning differently from a person without the condition or malfunction, or

(e)  a condition, illness or disease which affects a person’s thought processes, perceptions of reality, emotions or judgements or which results in disturbed behaviour, and shall be taken to include a disability which exists at present, or which previously existed but no longer exists, or which may exist in the future or which is imputed to a person.

At the hearing, Mr Whelan submitted that PTSD may be considered to be a disability, but that the complainant provided no medical evidence that she was suffering from and that she was treated for PTSD.  After the hearing of this complaint, on May 22nd and 26th, the complainant remedied that issue by providing evidence from her treating consultants regarding her condition.  I am satisfied that, when she was attending the respondent’s clinic in January 2022, she was suffering from PTSD and that she was treated for the condition by a counselling psychiatrist from September 2020 until May 2022. 

The issue for consideration is whether PTSD is consistent with the definition of a disability as set out at sub-section 2(e) above.  The significance of the CJEU decision HK Danmark v Dansk almennyttigt Boligseskab (footnote 2) was that an employee whose “impairment” prevents them from working full-time may be considered to have a disability, so it is not useful for the instant case.  The decision does, however, underline a shift in the way disability is viewed in EU law, away from a strict clinical diagnosis of a permanent and incapacitating condition.

Taking the definition as it is written at section 2(e) of the Act, a disability includes a condition which “…affects a person’s thought processes, perceptions of reality, emotions or judgements or which results in disturbed behaviour.”  In its decision in the case of A Government Department and A Worker[3], the Labour Court held that,   

“It is settled law that where a statute defines its own terms and makes what has been called its own dictionary, a court may not depart from the definition given by the statute and the meaning assigned to the words used in the statute. (See the decision of the Supreme Court in Mason v Levy [1952] I.R. 40.)”

Taking my lead from this, I must accept the definition of disability as I find it and I am satisfied that the complainant’s diagnosis of PTSD is consistent how disability is defined at section 2(e) of the Act.

The complainant said that her disturbed behaviour, manifested in emotional and aggressive outbursts, was triggered by thinking about the fact that she was raped in January 2020 and that her condition was worse around the time of the anniversary of the assault.  When she was aggressive during a telephone call with one of the respondent’s doctors on January 18th 2022, the respondent terminated its services to her.  Based on these facts, I am satisfied that the complainant has established that there is a basis for presuming that she was deprived of the respondent’s services because of her disability.

Consideration of the Respondent’s Case that No Discrimination Occurred

It is the respondent’s position that they terminated their services to the complainant because she used inappropriate language and was aggressive.  In her letter of January 28th 2022 confirming their decision to discontinue treating the complainant, the quality manager wrote:

“I have discussed with various staff members who have engaged with you over the past number of months and I have listened to some of the phone calls.  I regret to say that the interactions you have had with our staff is unacceptable and will not be tolerated.  We expect our staff to show respect and act in a professional manner and in return we expect our patients to reciprocate this.  No one should have to endure the level of inappropriate language and aggression that you have shown towards our staff.  I refer specifically to a phone call that occurred between you and Dr (XY) on 18th January 2022.  A recording of the phone call can be provided to you if you wish.”

When she received this letter, the complainant had been attending the clinic for six months.  From the letter, it seems that the phone call of January 18th was not an isolated incident.  I have no doubt that these were unpleasant and perhaps stressful encounters for the clinic’s staff.  I agree that the respondent has a duty of care to its employees and that they are responsible for ensuring, as far as is reasonably possible, that their workplace is safe.

The challenge for the respondent was how to balance their duty of care to their employees with the complainant’s entitlement to avail of their services, in the circumstances in which she was inclined to react aggressively to procedures or to suggestions about aspects of her treatment.  These encounters occurred in a clinic and in general, doctors and others who work in medical settings are trained in the treatment of patients in distress.  It occurs to me that most ambulance personnel and nurses and doctors in emergency departments and other clinical settings have been exposed to aggression and even assault, but we do not hear that patients who behave in this way are denied treatment.  The complainant was a 40-year-old rape victim seeking help to postpone becoming pregnant until she had recovered from the trauma of the rape.  I read the transcript of the telephone conversation she had with the doctor on January 18th 2022, which resulted in them withdrawing their services.  In the conversation of around 550 words, she was not abusive towards the doctor, but was adamant in her objection to the medication.  She said, “I’m not f-ing taking it.”  In two sentences, she used this expletive four times.  I do not condone this behaviour, but it is my view that the clinic’s decision to discontinue the complainant’s treatment was a cruel and excessive response.

The management of the clinic were informed that the complainant had been raped and that she was suffering from PTSD.  They knew that the rape occurred in January 2020, and that January was a difficult month for her.  She said that she asked for procedures not to be scheduled in January.  As she had been a patient of the clinic since July 2021, I find it difficult to understand why it was necessary to phone her about her treatment on January 18th 2022.  No evidence was submitted that any intervention was considered to help the complainant to have her treatment without triggering a traumatic response.

As a person with PTSD, the complainant could have benefited from some assistance regarding her treatment and I believe that a few simple interventions may have resulted in a different outcome.  In the first instance, she could have been told early on that her conduct was upsetting the staff and there should have been a discussion with her about how to support her to have her treatment while, at the same time, avoiding an aggressive reaction. 

While the respondent’s submission indicates that its decision to discontinue its services to the complainant was prompted by the January 18th phone call, in the letter issued by the clinic on January 28th 2022, the quality manager referred to the complainant’s interactions with staff over the previous months.  It is apparent therefore, that the January 18th incident was not the first example of the complainant being aggressive.  I agree with the quality manager’s position that no one should have to endure inappropriate language and aggression; however, it is my view that, when the complainant’s unacceptable conduct first came to their attention, the management had a responsibility to intervene and to offer her support so that her treatment could be administered without triggering a traumatic response.  From her statement on her ES1 form, it seems that she was open to her husband being involved in a discussion about how to manage her PTSD.  Consideration could have been given to drafting a form of a “behavioural contract” between the clinic and the complainant, so that her treatment could have been continued without causing stress to the staff.  There is no evidence that she was warned that her treatment would be ended because of her behaviour. 

Another support which could have been offered to the complainant was perhaps in the form of a dedicated contact person in the clinic, with whom she could have developed a level of trust.  It is apparent that she had contact with several employees and that some of the encounters were unpleasant.  From the first difficult encounter, the clinic could have done more to provide her with a service that supported her to have her treatment while she was suffering from PTSD.  It seems to me that a person with a physical disability, such as sight or hearing loss, would have had the benefit of a companion or a dedicated member of staff at their treatment, so that their disability could be accommodated.  If the clinic had proposed a supportive treatment plan, the complainant’s distress and the effect of her behaviour on the staff could have been managed. 

I find that the complainant was discriminated against when she was not provided with support to manage her disability during her treatment and when she was sent away from the clinic because of her disability.

The complainant argued that her reproductive rights were infringed and that, in this way, she was also discriminated against on the ground of her family status.  I agree with the first part of this statement, because the decision of the clinic to stop treating her had the effect of making it more difficult for her to achieve an embryo implantation.  However, her family status was not the reason she was sent away from the clinic and, while I agree that she was treated appallingly, I do not accept that she was discriminated against based on her family status. 

Conclusion

I find that, by failing to provide accommodation to manage her PTSD while availing of the clinic’s services, the complainant was discriminated against on the ground of her disability.  It is my view that the accommodation that she required was within the capacity and resources of the clinic to provide and I acknowledge that the effect of withdrawing their services to her was devastating.

I decide that the complainant was discriminated against on the ground of her disability and that her complaint is well founded.  Considering the amount to be awarded in compensation, I am mindful of the gravity of the impact on her of the respondent’s actions and their failure to find a way to provide her with the treatment she sought.  In these circumstances, I direct the respondent to pay the complainant compensation of €10,000.

Discrimination, disability, post-traumatic stress disorder