Mr. Pat Hallinan
Dr. Luke O'Donnell
(Represented by Hayes Solicitors)
Mr. Hallinan referred a claim to the Director of Equality Investigations under the Equal Status Act 2000. In accordance with her powers under section 75 of the Employment Equality Act, the Director then delegated the case to me, Bernadette Treanor, an Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Act.
Summary of the Complainant's case
The complainant was admitted to Mayo General Hospital in June 2002. His complaint to the tribunal relates to his treatment by the respondent doctor while in hospital. Mr. Hallinan is quadriplegic and he stated that while in hospital he knew his breathing was becoming difficult so he asked for physiotherapy to relieve this. This was not immediately forthcoming despite his requests and no clear explanation was given. He also asked for x-rays and these took five days. Mr. Hallinan believes that this delay is too much when a patient is seriously ill. When physiotherapy was given the complainant was happy with the treatment received. At all times he was also happy with the service received from the nursing staff. Mr. Hallinan stated that he has been going to the hospital for 19 years and that there should have been a clear recognition of his needs. He also alleges that when he wrote to the doctor after his stay in hospital he received no reply. Mr. Hallinan alleges that the treatment he received from the doctor was unacceptable and amounted to discrimination. He has brought his complaint under the disability ground in the Equal Status Act, 2000. He has also claimed victimisation.
Summary of the Respondent's Case
Dr. O'Donnell saw the complainant on the day after he was admitted. In his opinion Mr. Hallinan does not appreciate how serious his condition was. There was a difficulty with his respiratory system but there was also a difficulty with his digestive system. Both problems were serious and the treatment of one created difficulties for the treatment of the other. One problem needed more urgent treatment and physiotherapy may have resulted in increasing the fluid in his chest. X-rays are only a part of the overall clinical assessment. He felt there was no need for a final x-ray. Dr. O'Donnell pointed out that the slowness in relation to an x-ray report is the same for all patients whether disabled or not. Dr. O'Donnell apologised for his tardiness in responding to the complainants letter. When he returned from holidays he had to prioritise his work. He pointed out that he was equally slow in getting to all of his correspondence.
Conclusions of the Equality Officer
I am satisfied and the respondent agreed that the complainant is disabled. It was also agreed that the complainant was in the care of the respondent doctor for a period during his stay in hospital in 2002. What is in dispute is whether or not some forms of treatment and x-rays were withheld because the complainant is disabled and whether or not the doctor's lack of response to the complainant's correspondence was because the complainant is disabled.
In respect of the physiotherapy treatment and the x-rays, these form part of a doctor's assessment and treatment of a patient. Doctors use their clinical judgment in assessing a patient. X-rays are only one contribution to the assessment process and physiotherapy is a treatment which may be considered appropriate for a particular patient following assessment. Section 16 (2) of the Equal Status Act, 2000 states:
"16(2) Treating a person differently does not constitute discrimination where the person -
(a) is so treated solely in the exercise of a clinical judgment in connection with the diagnosis of illness or his or her medical treatment,......"
Mr. Hallinan feels that his treatment by Dr. O'Donnell was unfavourable. However, treating a person differently while exercising clinical judgment in connection with that person's diagnosis or treatment cannot amount to discrimination under the Equal Status Act, 2000, based on Section 16.
In respect of the lack of response to the complainant's correspondence, and based on the evidence presented to me, I am satisfied that Dr. O'Donnell, in similar circumstances, would have treated correspondence from a non-disabled person in a similar fashion. I find that the complainant has failed to establish a prima facie case of discrimination on the disability ground.
I am satisfied that Mr. Hallinan has also failed to show that there was any less favourable treatment on foot of any action taken under the Equal Status Act, 2000. I find, therefore, that he has failed to establish a prima facie case on the victimisation ground as defined by Section 3 of the Equal Status Act, 2000.
Had Dr. O'Donnell been found to have discriminated against the complainant in matters other than his clinical decisions the Western Health Board may have been vicariously liable. While it was argued at the hearing that such doctors operate independently, this appears to be relevant only to clinical issues. Where the issue arises in relation to correspondence or other administrative matters the Board (now the HSE) may be found liable. It was clear to me that no provisions were in place to ensure that the Health Board was informed of such matters arising nor were there procedures in place which could be followed by a doctor in these circumstances. Since the complainant has failed to establish a prima facie case of discrimination I cannot direct the HSE to take any course of action. However, a review of such matters would seem worthwhile.
Since the complainant has failed to establish a prima facie case of discrimination on the disability ground this decision is in favour of the respondent.
15th September 2006