Decision No: DEC-S/2014/006
(Represented by Dublin Aids Alliance)
A Dental Practice
(Represented by a Firm of Solicitors)
File No: ES/2012/053
Date of issue: 18 June, 2014
Headnotes: Equal Status Acts, 200-2012 – section 3 – discriminatory treatment – refusal of service – discrimination accepted – disability- quantum of redress
1. DISPUTE AND BACKGROUND
1.1 This dispute involves a claim by Mr. A (“the complainant”) that he was discriminated against by A Dental Practice (“the respondent”) on grounds of disability, in terms of section 3(2)(g) of the Equal Status Acts, 2000-2012 and contrary to section 3(1) of those Acts when it informed him that he would not receive future treatment at that practice and should seek such treatment at the Dental Hospital, when he attended at the practice for dental treatment on 25 February, 2012.
1.2 The complainant referred a complaint under the Equal Status Acts, 2000-2012 to the Equality Tribunal on 10 May, 2012. A question arose as to whether or not the complainant had complied with the notification procedures in terms of section 21(2) of the Acts and this matter was decided by an appropriately authorised member of the Tribunal’s staff on 6 September, 2011 (under Direction DIR-S2012-009) wherein the period of notification was extended pursuant to section 21(3) of the Acts and rendered the complaint properly before the Tribunal for investigation. In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2011 Acts the Director delegated the complaint to the undersigned, Mr. Vivian Jackson, Equality Officer, for investigation and decision and for the exercise of other relevant functions of the Director under Part III of the Equal Status Acts, 2000-2012. My investigation of the complaint commenced on 8 April, 2014, the date the complaint was delegated to me. Notwithstanding that the respondent had not (despite a number of requests) filed its submission in the matter a Hearing of the complaint was scheduled for 28 May, 2014. Written notification of these arrangements was sent to both parties on 22 April, 2014.
1.3 By letter dated 22 May, 2014 the respondent’s solicitor wrote to the Tribunal advising that it was now instructed by the new owners of the respondent (it had previously represented the original owners but had come off record in early January, 2014) and was writing in response to the Tribunal’s letter of 22 April, 2014. It stated that the respondent had “from an early date accepted responsibility and apologised for the events of 25 February, 2012”. I sought clarification from the respondent’s solicitor of what it meant by this comment in order to decide how best to proceed with my investigation of the complaint. It responded by letter dated 27 May. 2014 advising that “our client has accepted that the complainant was discriminated against of grounds of disability contrary to the Equal Status Acts, 2000-2012 (as amended) and that the only matter for decision by the Tribunal is in terms of the appropriate redress,”. Consequently, my investigation focussed on that matter only. In order to assess the effects of the discrimination on the complainant in terms of section 27 of the Acts, it is appropriate to consider, in summary version, the facts of the case. Given the nature of the issues in this complaint I have decided, with the consent of both parties, to withhold their identities in this Decision.
2. SUMMARY OF COMPLAINANT’S CASE
2.1 The complainant is a person who lives with the HIV virus. He states that on 25 February, 2012 he attended the respondent for dental treatment as he was suffering from toothache. He adds that this was the first occasion he attended the practice and he was asked to complete a form which sought a range of personal details, part of which was did he have an infectious illness. The complainant states that he answered “yes” to this question and that subsequently the Dentist on Duty refused to treat him unless he (the complainant) disclosed the exact nature of the illness. He adds that he initially refused to disclose this detail (as he was under no legal obligation to do so) but as he was in considerable pain and believed that he would not be treated unless he complied with the request, he informed the Dentist of his HIV status. The complainant states that the Dentist provided some treatment but he (the complainant) was unable to detail the nature of this treatment as the Dentist did not explain what he was doing, nor did he ask him questions about his pain etc. He adds that at the end of the treatment the Dentist told him “that due to your special circumstances you will have to be treated in the Dental Hospital in future”. The complainant further states that he was told he would be given a letter of referral to the Dental Hospital and expected to get it on the day but the Receptionist was very dismissive of him. He adds that he remained in pain and had to seek treatment elsewhere a couple of days later, when he was told he had a significant infection and was placed on a course of antibiotics before any further treatment could be administered.
2.2 The complainant states that he was shocked and horrified by the respondent’s treatment of him and he was extremely upset on the day. He adds that this upset continued for some time and he still asks himself what he did that day to warrant such treatment. He further states that his self- confidence was destroyed and that he still gets distressed when he thinks about the events of the day. He adds that he felt stigmatised by the events and that he has only felt comfortable accessing future medical services with the support of friends and peer-groups, although he confirmed (at the Hearing) that he has a regular dentist at present who treats him without any problem. The complainant’s representative submitted an array of documentation which include, inter alia, (i) The Dental Council Code of Practice on Professional Behaviour and Ethical Conduct, (ii) The Dental Council Code of Practice relating to Infection Control in Dentistry, (iii) The HSE Guidelines on The Prevention of Transmission of Blood-Borne Diseases in the Health Care Setting and (iv) The HSE Code of Practice for Decontamination of Reusable Invasive Medical Devices, as examples of existing policy guidelines in relation to patient care and sterilisation and infection control. She further states it is clear from this documentation that refusing to treat a patient who is HIV seropositive is unethical and illogical as undiagnosed carriers of infectious diseases pass through medical and dental practices undetected on a daily basis and that standard sterilisation and decontamination practices should be applied as a matter of course after each patient treatment. She drew the Equality Officer’s attention to a Decision of the Tribunal which she submits in analogous to the instant case and argued strongly that the Equality Officer should be guided by quantum of the redress awarded in that case. Finally, she acknowledges the respondent’s admission that it discriminated against the complainant but states that the admission only occurred at the eleventh hour and that it had previously consistently held the view that its actions merely “fell short of its exacting standards”.
3. SUMMARY OF RESPONDENT’S CASE
3.1 The respondent accepts that it discriminated against the complainant in respect of the treatment of him on 25 February, 2012. It adds that it wrote to the complainant on 22 March, 2012 and had hoped this had addressed the complainant’s concerns. It states that it appears the complainant did not receive this letter until sometime in May, 2012 and that subsequently, by letter dated 5 June, 2012, it unreservedly apologised for “what was obviously a very uncomfortable and distressing visit to the practice” and offered recompense to the complainant. It is submitted on behalf of the respondent that this correspondence amounts to an early admission of liability and that this, coupled with an unreserved apology and the recompense offered, are significant factors to be taken into consideration by the Tribunal in assessing the appropriate remedy.
3.2 The respondent states that its procedures were at all times compliant with Dental Council and other organisations’ Regulations and Codes of Practice. It adds that notwithstanding this, since the incident with the complainant, it has implemented a number of measures designed to ensure that an incident similar to the one complained of does not happen again. In this regard it specifically refers to -
- Deletion of the requirement in the initial Customer Registration Form’s Medical History Section to include a reference to infectious illnesses so as to avoid embarrassment for the patient,
- New procedures whereby patients with infectious illnesses are not specifically treated as the last appointment during the day and are treated like all other patients in accordance with the Dental Council Code of Practice.
- Full and regular training for all staff in relation to cross-infection control.
- Full and regular training for all staff in relation to hazardous waste.
- Implementation of full computer software Dental Practice Management System. The software includes policies, manuals and tools to ensure that the respondent’s practice is fully up to date with the most relevant practice, procedures and guidelines as issues by the Dental Council of Ireland.
It submits that these initiatives improve the practice and significantly minimise, if not remove, the possibility of a recurrence of the events involving the complainant.
3.3 The respondent asks the Tribunal to note that the individuals involved with the company at the time of the incident are no longer involved with the respondent at any level, having returned to their native country. The respondent (current owner) adds that the company is therefore under new ownership and states he was not made aware at the time the business was being purchased that this complaint was in existence. It is submitted on the respondent’s behalf that this is a factor which the Tribunal should have regard to when assessing the appropriate remedy. The respondent further states that it accepts the complainant was discriminated against on 25 February, 2012 contrary to the Acts. It is submitted on its behalf that this is a significant factor to be taken into account in determining the level of redress and it is further argued that this fact distinguishes it from the situation outlined in Goulding v O’Doherty where the respondent vigorously defended its position and denied it had discriminated against the complainant.
4. CONCLUSIONS OF THE EQUALITY OFFICER
4.1 In the light of the respondent’s acceptance that the complainant was subjected to discriminatory treatment on grounds of disability contrary to the Equal Status Acts, 2000- 2012 in respect of the incident at its premises on 25 February, 2012 the issue for decision by me is what the appropriate redress is in all the circumstances. In reaching my decision on this matter I have taken into consideration all of the submissions, both written and oral, submitted to the Tribunal.
4.2 Section 27 of the Acts provides that the maximum amount of monetary redress which I can order for the effects of the discrimination on the complainant is €6,349. Undoubtedly, on the day in question the complainant suffered considerable upset, distress and embarrassment when he was advised (by the Dentist on Duty) that he (the complainant) needed to attend the Dental Hospital for any further treatment given “his special circumstances”. This comment effectively meant that he was being told he should not return to the respondent for treatment because of his HIV status. He was left in considerable pain and when he subsequently got treatment from another dentist a couple of days later he was found to have a significant infection which required antibiotic medication. The complainant sent a letter of complaint to the respondent (with the assistance of his representative) on 2 March, 2012 detailing his experiences at the practice on 25 February, 2012 and asking why he had been treated in such a manner. The respondent replied on 22 March, 2012 – although this letter was not received by the complainant until sometime in May, 2012. This letter, inter alia, advises the complainant that the respondent fell short of its exacting standards on 25 February, 2012 and gave certain assurances to the complainant about future treatment. It should be noted that at this juncture the complainant had not put the respondent on notice he was considering referring the complaint to this Tribunal under the equal status legislation and I am satisfied that the respondent’s response was based on the assumption that it was dealing with a routine dissatisfied customer.
4.3 There was a subsequent series of inter partes correspondence and the complainant referred his complaint to this Tribunal on 10 May, 2012. In its letter to the complainant dated 16 May, 2012 the respondent re-iterates much of what it said in its letter of 22 March, 2012. These two letters however, in my view, fall far short of an early admission of liability as suggested on behalf of the respondent, particularly as the respondent was still unaware of the existence of the complaint to this Tribunal at the time of writing them. The first real conciliatory correspondence from the respondent is its letter of 5 June, 2012 where it unreservedly apologised to the complainant for “what was obviously a very uncomfortable and distressing visit to the practice” and offered recompense to him. However, this offer was not acceptable to the complainant – a decision he is perfectly entitled to make.
4.4 Between then and the date of the Hearing there were a number of unsuccessful formal and informal contacts between the parties in an effort to resolve the issue. However, at no stage during this process did the respondent concede that it had discriminated against the complainant, which is clearly a source of considerable angst to the complainant. This changed on the evening before the Hearing when it accepted it had discriminated against him. Such an admission removed the complainant from the distressing experience of reliving the events of 25 February, 2012 and having to give evidence on any disputed facts in respect of those events. In my view this is a factor to which the Tribunal must have regard in assessing the quantum of redress. I accept the respondent’s arguments that this fact alone distinguishes the instant case from the events in Goulding v O’Doherty where the respondent vigorously defended its actions, steadfastly denied it discriminated against the complainant and brought expert witnesses to the Hearing to support its case. It is submitted on behalf of the complainant that the respondent’s acceptance that it discriminated against the complainant only arose at the eleventh hour. Whilst this is true I note that ownership of the respondent recently changed hands and it is the new owner who accepts that the complainant was treated unlawfully. It is submitted that the Tribunal should take the change in ownership of the respondent into consideration in assessing redress. However, I cannot accept this argument. Whilst I empathise with the respondent in terms of its current predicament its failure to conduct an appropriate level of due diligence prior to purchasing the business is not a factor which should negatively impact on the complainant in terms of level of redress.
4.5 The complainant’s representative furnished the Tribunal with an extensive array of documentation which detail guidelines, best practice, procedures and regulatory standards for treatment of patients with infectious illnesses and sterilisation/decontamination processes in dental practices. In circumstances where the respondent accepts it discriminated against the complainant these documents are of no real relevance. The respondent rejected any assertion that it did not comply with the Dental Council and other organisations’ Regulations and Codes of Practice and that notwithstanding this it has introduced (subsequent to the events of 25 February, 2012) a number of initiatives to ensure that an incident similar to the one complained of does not happen again. While this is to be welcomed, if indeed it is the case, it has no relevance to a consideration of the effects of the discrimination on the complainant at the relevant time. The complainant states that his self -confidence was destroyed as a result of how he was treated by the respondent and that he still asks himself why he was treated in that manner. Whilst he was visibly upset at the Hearing as he recalled the events of the day I am not convinced that his self-confidence is shattered as alleged. In addition his representative furnished the Tribunal with reports and studies concerning the stigma attached to HIV - one of the assertions of which is that people who live with the HIV virus are reluctant to access medical care and that this is a factor to be considered by the Tribunal in assessing quantum. Whilst this might be true in general I cannot accept it applies to the complainant. His evidence to the Tribunal was that he attended the respondent’s practice in the first place and (albeit with the assistant of friends and support groups) that he received dental treatment with another dentist within two days of the events of 25 February, 2012 and that he currently attends for dental treatment as necessary.
4.6 I am entirely satisfied that the complainant suffered significant upset, distress and embarrassment at the hands of the respondent on 25 February, 2012. I am also satisfied that whilst its efforts were far from ideal, the respondent sought to engage with the complainant from an early date, even before a complaint was referred to this Tribunal. The tone and content of the respondent’s letter of 5 June, 2012 is conciliatory and sought to resolve the dispute. Moreover, the respondent’s acceptance that it had discriminated against the complainant obviated the need for him to give evidence (at the Hearing) on the events of 25 February, 2012. In my view (as stated above) these facts distinguish the instant case from those in Goulding v O’Doherty where the Equality Officer found a significant level of discrimination and awarded redress close to the maximum “to reflect the seriousness of the discrimination experienced by the complainant”. Whilst I do not for one moment wish to lessen the discrimination experienced by the complainant in the instant case, I am not satisfied that the events warrant the same level of redress. However, I am satisfied that the impact on the complainant was serious and having considered the totality of the evidence and arguments presented in respect of redress I believe an award of €3,000, which is just below half of the maximum that may be ordered, is appropriate.
5. DECISION OF THE EQUALITY OFFICER.
I have completed my investigation of this complaint and make the following Decision in accordance with section 25(4) of the Equal Status Acts, 2000-2012. In light of the respondent’s admission that it discriminated against the complainant on grounds of disability, in terms of section 3(2)(g) of the Equal Status Acts, 2000-2012 and contrary to section 3(1) of those Acts, in respect of the events of 28 February, 2012, I order the respondent pay the complainant the sum of €3,000 by way of compensation for the distress suffered by him as a consequence of the prohibited conduct concerned, in accordance with my powers pursuant to section 27(1) of the Acts.
18 June, 2014
 DEC-S2009/073 Goulding v O’Doherty