Anonymised Parties

A Medical patient

A Day Care Centre

Representatives

  Self Represented

 Comyn Kelleher Tobin Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

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

CA-00054233-001

20/12/2022

The Complainant alleged she was discriminated against by the Respondent on the grounds of her disability when it required her to wear a face mask while attending for a medical appointment when the Complainant considered her disability exempted her from wearing a face mask.

The Complainant alleged she was denied a service and was discriminated against because of her disability. In the complaint form it was also alleged the alleged discrimination was also because of her gender but this aspect of the complaint was not advanced at the Hearing.

The Complainant attended a scheduled appointment at a Respondents Day Hospital on 24th August 2022. When she arrived, she was admitted by a person not wearing a mask and took a seat in the waiting room. When she heard her name being called by a male doctor she got up and she was told she had to wear a face mask. The Complainant replied she could not wear a mask and was told by the doctor they could not proceed with the appointment unless the Complainant wore a mask. The Complainant asked to doctor to go down the hall with her to have a private conversation so she could explain her situation regarding the wearing of a mask. A discussion took place between the Complainant and the doctor and Ms. A of the Centre joined the discussion. The Complainant accused the staff of denying her a service and the staff replied they were not denying the Complainant the service just they were not going to provide it if she was not wearing a mask. The Complainant alleged the Day Hospital staff were happy to be near the Receptionist who was not wearing a mask but the Complainant could not meet with the Doctor without a mask.

The Complainant had a panic attack later that day and was sent to the Acute psychiatric centre Unit in the same area and was informed on arrival that the same doctor she had met that day was on duty. The Complainant was not comfortable meeting the doctor again after the incident earlier that day and left the Centre.

The Complainant alleged that there was an unusual delay in getting a new appointment to the Day Centre after the incident on August 24th and she got an appointment only after they had received her equal status complaint.

Since March 2021 the Complainant had a number of appointments ta the Day Centre with a different doctor and the Complainant believed she was harassed by her in denying the complaints autism diagnosis. The Complainant had given the Centre all her paperwork about her condition and would have expected that this would have confirmed she had autism but the doctor did not think she had autism.

The Complainant was a service user of the Mental Health Services.

The WRC complaint is one of discrimination by a service provider by reason of gender and disability.  It is stated that the first and also the most recent date of discrimination is the same date - 24th August 2022.

The discrimination as described on the WRC complaint form is:-

a failure to provide reasonable accommodation for a disability,

discrimination in provision of goods and services and

“discrimination: other”. 

The WRC complaint form states that the Complainant first notified the service provider of her complaint using an ES1 form on 2nd September 2022.  It confirms that she received a reply to her complaint dated 15th November 2022.

The Complainant was scheduled for a review appointment on 24th August 2022 at 4.00pm.   The clinician due to see her on that date was Dr. B, NCHD. 

Infection prevention and control measures were in place in “The respondent” facilities as at 24th August 2022 to minimise the spread of Covid 19.   There continued to be a requirement under public health guidance for staff and service users/patients to wear a face covering.

The Respondent did not accept the account of matters occurring on that date as presented in the Complainant’s written complaint.

In summary, the evidence of the Respondent was that the Complainant was called to her appointment from the waiting room in the Day Hospital.   This was a review appointment only.  Upon meeting Dr. B in the corridor outside the door of the waiting room, it was noted the Complainant was not wearing a mask.  Dr. B requested the Complainant, in the same way as any other service user, to wear a mask.  The Complainant immediately stated she could not wear a mask but did not at that stage cite any medical reason why she could not do so.  The Complainant raised her voice almost immediately during the interaction, such that other staff members came onto the corridor from their rooms to see what the commotion was and/or to assist Dr. B  Dr. B gave evidence that he had no reason to believe that the Complainant was entitled to an exemption on medical grounds from wearing a face covering and so was surprised at the Complainant’s assertions that she could not wear a mask.  The Complainant continued to behave in a hostile manner asking whether Dr. B was refusing her treatment.  Whilst Dr B denied that the Complainant was being refused treatment, he did explain to her that unfortunately an assessment might not take place that day.  The reason for this is that Dr. B was not comfortable seeing a patient without a mask in his treatment room, the room was small and social distancing was not possible.  The service had 2 larger rooms where patients could be accommodated during Covid however on the date in question when the Complainant’s appointment was scheduled, 24th August 2022, both rooms were occupied.  Accordingly, it was explained to the Complainant by Dr.B and a colleague that the service would need to re-schedule her appointment to allow for social distancing in compliance with public health guidance in circumstances where the Complainant was not going to be wearing a mask for her appointment.   It was denied that there was an attempt to divert the Complainant away from the service.  It was also denied that a hostile and degrading environment was created by the Respondent.

The Respondent stated that the Complainant was not discriminated against on any grounds and the focus of staff at all times was to facilitate the Complainant to avail of services. 

The Respondent also advised of an interaction which occurred with the Complainant later on the evening of 24th August 2022 when the Complainant presented at the Mental Health Services Acute Unit.    The doctor on duty in the Acute Unit that evening happened to be Dr. B (same doctor who the Complainant had met earlier in the day).  Upon learning of this from a nurse who met the Complainant at the entry to the Acute Unit, the Complainant became upset and agitated.  She declined to enter the Acute Unit and left. 

In addition, and notwithstanding that it appears that certain matters referred to in the WRC complaint prior to 24th August 2022 and are “out of time”, the Respondent denied any discrimination or harassment in those interactions also. The Complainant was seen by another doctor Dr. C prior to 24th August 2022, that Dr C was satisfied to see the Complainant notwithstanding that the Complainant declined to wear a mask but that was a personal decision of the treating doctor in circumstances where the treatment room was adequately sized to allow for social distancing.  Dr C did not share the clinical opinion that there was a supportive basis for a diagnosis of autism in the Complainant.  Dr C felt that, clinically, the Complainant’s presentation was in keeping with a different diagnosis.  Dr C did not accept that the Complainant had a disability such that it rendered it difficult or impossible for the Complainant to wear a face covering.  Dr C was satisfied to facilitate the Complainant’s attendance at mental health services (notwithstanding that the Complainant did not wear a facemask) and that Dr C did her utmost to treat the presenting clinical issues of the Complainant.  The treating doctor’s position is that she (Dr C) did not treat the Complainant any differently than she would have treated her had Dr C agreed with the diagnosis of autism as relied upon by the Complainant. 

The Respondent refuted the suggestion that there was a refusal by the Day Hospital to assess the Complainant for autism and stated there is no basis for a claim of discrimination in relation to how the Complainant’s clinical presentation was managed.

The Respondent advised there were a number of medical practitioners all disagreeing with a diagnosis of ASD in the Complainant and that the treatment and services which the Complainant has received have been and are connected with the exercise of clinical judgment of her health care providers as to what that treatment should be.

The Respondent’s position was that decisions made in the exercise of clinical judgment around the treatment of a service user/patient are outside the realm of the Equal Status Acts. 

The Respondent refuted any suggestion that the Complainant was “victimised” because she had made verbal complaints to the service and/or complaints against another location in the Respondent group.

The Respondent refuted any suggestion that the re-scheduling of an appointment in November 2022 was at attempt to “harass” and “unsettle” the Complainant.

The Complainant lodged a complaint on an ES1 form.  This was dealt with by the Respondent under the provisions of its “Your Service, Your Say” complaints process and a response issued to the Complainant  and a copy provided to the Hearing.

The Respondent set out the law and a number of legal precedents.

PRELIMINARY LEGAL POINT

Prior notification of prohibited conduct

Section 21(2)(a) of the Equal Status Act 2000 places an obligation upon a Complainant to notify the Respondent in writing of the allegation of prohibited conduct within 2 months of the last instance of that prohibited conduct having occurred.   The Respondent should be notified of the nature of the allegation, what the complainant’s intentions are if not satisfied with the response to its notification, and the Complainant may also seek information in relation to matters subject of their complaint.  The notification under Section 21(2)(a) is a mandatory requirement on a Complainant.

The complaint to the WRC in this case is a complaint of discrimination on two of the protected grounds:-

Disability

Gender

The Respondent accepts that an ES1 form was received from the Complainant, however nowhere on that form does the Complainant complain of prohibited conduct based on the gender ground.  The only box that is ticked on page 2 of the ES1 form is the “disability” box.  The narrative of the complaint on the ES1 form does not include any reference whatsoever to prohibited conduct on grounds of gender. 

The first reference to “gender” discrimination of which the Respondent became aware is in the WRC complaint form.

Accordingly, the Respondent objected to the investigation by the WRC of a complaint of discrimination on gender grounds in circumstances where Section 21(2)(a) was not complied with by the Complainant for any such complaint.   In the Respondent’s submission, the complaints of discrimination on the gender ground should be disregarded and dismissed.    In this regard, the Respondent relies upon case ADJ-00031924 – Ken O’Driscoll v Cork University Maternity Hospital.

Time Limits

In addition, the Respondent drew attention to the fact that this complaint was submitted to the WRC on 20th December 2022.  The cognisable period therefore in relation to this complaint is from 21st June 2022 – 20th December 2022.  No allegation of prohibited conduct which is alleged to have occurred prior to 21st June 2022 may be considered by the Adjudication Officer, subject to Section 21(11) of the 2000 Act.  In that regard, the Respondent considers there are no circumstances outlined which suggest the application of Section 21(11) e.g. a continuing act of prohibited conduct or a provision continuing over a period of time, up to 21st June 2022. 

BURDEN OF PROOF

The Court later elaborated on the application of that test in Determination EDA0821, Cork City Council v McCarthy and commented as follows:

“The type or range of facts which may be relied upon by a complainant may vary significantly from case to case. The law provides that the probative burden shifts where a complainant proves facts from which it may be presumed that there has been direct or indirect discrimination. The language used indicates that where the primary facts alleged are proved it remains for the Court to decide if the inference of presumption contended for can properly be drawn from those facts. This entails a consideration of the range of conclusions which may appropriately be drawn to explain a particular fact or a set of facts which are proved in evidence. At the initial stage the complainant is merely seeking to establish a prima facie case. Hence, it is not necessary to establish that the conclusion of discrimination is the only, or indeed the most likely, explanation which can be drawn from the proved facts. It is sufficient that the presumption is within the range of inferences which can reasonably be drawn from those facts.”

Similarly, in Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how the probative burden is to be interpreted.  It was stated that the Complainant was required to:

“first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In  Graham Anthony & Company Limited v Mary Margetts  EDA 038  the evidential burden which must be discharged by the Complainant before a prima facie case of discrimination can be said to have been established was further outlined by the Labour Court when it stated:

“The mere fact that the Complainant falls within one of the discriminatory grounds laid down under the Act is not sufficient in itself to establish a claim of discrimination. The Complainant must adduce other facts from which it may be inferred on the balance of probabilities that an act of discrimination occurred.”

In order for the burden of proof to shift to the Respondent, the Complainant must first establish prima facie:

(1) that her medical condition constituted a disability and

(2) that she was discriminated against as a consequence of her disability.

The Respondent does not accept that the Complainant has established facts from which it may be presumed that prohibited conduct has occurred in relation to her.

LEGAL SUBMISSIONS

The position of the Respondent in response to the complaint is:

Infection prevention and control measures were in place in “The Respondent” facilities as at 24th August 2022 to minimise the spread of Covid 19.   There continued to be a requirement under public health guidance for staff and service users/patients to wear a face covering.

The nature of their services provided by the Respondent involves interaction with a vulnerable cohort of the population.

The Respondent stated that its procedures at the Day Hospital were in line with the public health guidance at the time, the procedures including the requirement to wear a face covering were directed at minimising the spread of Covid 19 however all necessary steps were taken to accommodate service users/patients who genuinely did suffer from a disability which rendered it difficult or impossible for those service users/patients to comply with the Covid 19 infection prevention and control measures.  (as is the requirement on the Respondent pursuant to the Equal Status Acts around reasonably accommodating access to services).

The Respondent stated it is up to the Complainant to prove she had a disability which prevented her from wearing a mask.

The Respondent stated it did not refuse to allow the Complainant to avail of its services on the 24th August 2022 on grounds of disability or gender or at all.

The Respondent did not treat the Complainant differently on any protected grounds on the 24th August 2022.

The Respondent sought at all times to facilitate the Complainant and assist her to avail of its services on the 24th August 2022. 

Contrary to what is alleged, representatives of the Respondent did not seek to divert the Complainant away from availing of the support of mental health services at that time or at any future time.

Contrary to what is alleged, the Respondent did not seek to harass or victimise the Complainant at any time, nor is it accepted that a hostile or degrading environment was created/caused by the Respondent’s staff for the Complainant.

The Respondent denied that it failed to accommodate any disability of the Complainant in order to allow her to avail of the services of the Mental Health Service.

The Respondent denies that it discriminated against the Complainant on any grounds in the provision of a healthcare service.

It was noted that there is no comparator identified in the Complainant’s claim.

In addition to being satisfied that the Complainant suffers from a disability, it also must be proved by the Complainant that the Respondent was aware of such disability at the time of the alleged breach and that the Respondent treated the Complainant less favourably than a comparator on grounds of that disability and/or failed to provide the complainant with reasonable accommodation for such disability. 

The Respondent did all that could reasonably be expected of it in terms of endeavouring to reasonable accommodate the Complainant (notwithstanding that there may have been a difference in clinical opinion as to whether or not she has a diagnosis of autism/ASD) and in terms of providing a health service.    There is no evidence of discrimination – that the Respondent treated the Complainant less favourably on grounds of a disability (if the Adjudication Officer is satisfied she was suffering from a disability).

In addition, the Respondent relied upon the provisions of Section 16(2)(a) of the 2000 Act in relation to how the Complainant may have been dealt with from a clinical/treatment perspective, notwithstanding that there may have been a difference in clinical opinion as to whether or not she has a diagnosis of autism/ASD.  Respectfully, decisions made by clinicians solely in the exercise of their clinical judgement as to how the Complainant was treated/what medication was prescribed/the manner/means of assessment of her condition/whether she met the clinical criteria for a particular diagnosis, are all matters which cannot legally amount to discrimination pursuant to Section 16(2)(a).    

Any aspect of the treatment or provision of service that the Complainant received from the Respondent cannot amount to discrimination if the decisions around her diagnosis/what his medical treatment should be were made solely in the exercise of clinical judgment and the treatment she did receive was connected to that clinical judgment.

The Respondent’s position was that the complaint should be dismissed.  

I was requested by the Respondent to consider the anonymisation of this decision and I have decided to use my discretion under the Workplace Relations  (Miscellaneous Provisions) Act 2021 to anonymise this decision in relation to the location of the events and names of persons/parties involved on the grounds that it contains highly sensitive personal and medical information and the disclosure of the names of the Parties and persons involved would not serve any public purpose.

I have reviewed the written submissions and evidence both written and oral.  I have adopted the direction provided in Faulkner v. The Minister for Industry and Commerce [1997] E.L.R. 107 at p.113 where O'Flaherty J in the Supreme Court noted that minute analysis or reasons are not required to be given by administrative tribunals, but that the duty on administrative tribunals to give reasons in their decisions is not a particularly onerous one. Only broad reasons need be given and given the core issues involved it is not necessary or beneficial to outline some of the detail provided. The Faulkner case stated “I would reiterate, what has been said on a number of occasions, that when reasons are required from administrative tribunals, they should be required only to give the broad gist of the basis for their decisions. We do no service to the public in general, or to particular individuals, if we subject every decision of every administrative tribunal to minute analysis.” 

The relevant sections of the Equal Status Act 2000 as amended are set out below:

Section 2 of the Equal Status Act 2000, as amended, (the Act) defines disability as follows:

“disability” means—

(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 disease or illness,

(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, disease or illness which affects a person’s thought processes, perception of reality, emotions or judgement or which results in disturbed behaviour;

Section 3 -Discrimination (general).

(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,

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

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

….

(j) that one—

(i) has in good faith applied for any determination or redress provided for in Part II or III,

(ii) has attended as a witness before the Adjudication officer or a court in connection with any inquiry or proceedings under this Act,

(iii) has given evidence in any criminal proceedings under this Act,

(iv) has opposed by lawful means an act which is unlawful under this Act, or

(v) has given notice of an intention to take any of the actions specified in subparagraphs (i) to (iv),

and the other has not (the “victimisation ground”).

Section 4 - Discrimination on ground of disability.

(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 - Disposal of goods and provision of services.

(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.

The Burden of proof provision at section 38A provides

(1) Where in any proceedings facts are established by or on behalf of a person from which it may be presumed that prohibited conduct has occurred in relation to him or her, it is for the respondent to prove the contrary.

(2) This section is without prejudice to any other enactment or rule of law in relation to the burden of proof in any proceedings which may be more favourable to the person.

(3) Where, in any proceedings arising from a reference of a matter by the Authority to the Director of the Workplace Relations Commission under section 23(1), facts are established by or on behalf of the Authority from which it may be presumed that prohibited conduct or a contravention mentioned in that provision has occurred, it is for the respondent to prove the contrary.

Section 38A of the Act mirrors Section 85A of the Employment Equality Acts 1998-2015 in its main provision with regard to the initial burden of proof for a complainant in equality legislation.  In Arturs Valpeters v Melbury Developments Ltd 21 (2010) ELR 64 the Labour Court gave guidance on how Section 85A is to be interpreted.:

“Section 85A of the Act provides for the allocation of the probative burden in cases within its ambit. This requires that the complainant first establish facts from which discrimination may be inferred. What those facts are will vary from case to case and there is no closed category of facts which can be relied upon. All that is required is that they be of sufficient significance to raise a presumption of discrimination. However, they must be established as facts on credible evidence. Mere speculation or assertions, unsupported by evidence, cannot be elevated to a factual basis upon which an inference of discrimination can be drawn. Section 85A places the burden of establishing the primary facts fairly and squarely on the complainant and the language of this provision admits of no exceptions to that evidential rule.”

In this complaint the Complainant must first establish a prima facie case of discrimination which is a twofold process: (1) that she has a disability and (2) that she was subject to discriminatory treatment by a refusal of the Respondent to provide reasonable accommodation for her disability. 

It was contested by the Respondent that the Complainant had a disability. The Complainant has not provided certified evidence of a disability in support of her claim that she was unable to wear a mask on medical grounds at the time of the incident. She has provided a medical opinion she has autism.. The Respondent Medical Practitioner works in the Psychiatry and Acute Medical Unit of the Day Centre and his evidence was that Autism is not a disability. However, more compelling is the document supplied by the Complainant from her Assessing Clinical and Counselling Psychologist which stated in a letter to the Complainant “ As you know, Autism is not an intellectual disability or a mental illness. Although Autism is described as a disorder (and it can certainly create additional challenges which can be debilitating in the wrong environment and without the right support) in my opinion a better word to describe autism is ‘neurotype’ because autism is also a neurological difference. It means that people who are not autistic (neurotypical people) sometimes don’t understand everything you do or say, and you don’t always understand things that they do or say. There is a growing body of research to indicate that autistic people have far fewer issues understanding and communicating with each other, and that many of the communication issues between autistic and neurotypical people are actually caused by the neurotypical person (e.g., when they don’t wait long enough for a response or they are not honest). Although I should say that in my one-to-one conversations with you, I always felt your communication skills were excellent. But I know for you that communication can be hard in busy environments and with many people talking at the same time.“  It was also the opinion of Dr. C that the Complainant did not suffer from autism.  I have also examined other medical information generally available and the question of whether autism is a disability or not is not conclusive.

The Adjudication Officer is not a medical practitioner and therefore must be guided by the medical evidence. On consideration of the medical information supplied to me I have to conclude that the Complainants condition does not satisfy the definition of a disability under the Act. I recognise that this may be very difficult for the Complainant to accept as she has outlined how her condition affects her in interacting with other people but in the absence of a written clinical medical diagnosis that the Complainant has a disability I find that her condition does not meet the requirements of the Act.

The Complainant alleged that she had provided the Day Centre with her Autism information and this should have been on her medical file at the time of the events on August 24th 2022. However no evidence was provided that the Complainant informed the Respondent she had a medically/clinically defined disability.

The national requirement to wear a Face Mask in public settings and Transport etc was removed on February 28th 2022 but it was still a mandatory requirement according to Nphet to wear one in medical settings. This mandatory requirement for medical settings was not removed until April 2023. Therefore, it was a mandatory requirement at the time of the events in August  2022 in a hospital environment and the Complainant had not and did not supply proof of any exemption from this requirement to her appointment.

The Complainant has to accept that the onus rested with her fully to provide a medical certificate stating she was exempt from wearing a mask, if that was the medical diagnosis.

With regard to the assertion Doctor C harassed the Complainant there was no evidence supplied to support this complaint and the allegations relate to a time prior to the period eligible. There was no evidence to support the assertion the Respondent had delayed providing the Complainant an alternative appointment after the incident.

In reaching my decision, I conclude that the Complainant has not medically established she has a disability and therefore the rules of using face masks applied to the Complainant as the same as the rest of the population at the time of the incident and no discrimination occurred.

I find that the complaint is not well founded and the Respondent did not engage in prohibited conduct.

Discrimination