Complainant

Respondent

Parties

Sarah  Mangan

Saffron &  Blue Medical Clinic

Representatives

  Self- represented

 Bunbury Darcy Solicitors LLP

Act

Complaint Reference No.

Date of Receipt

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

CA-00054239-001

20/12/2022

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

CA-00071578-001

24/04/2023

The complainant submits that she was discriminated against by the respondent, who at the material time was the complainant’s GP medical practice, on the grounds of her disabilities on various occasions, the most recent being 30/8/2022, on the basis that she was refused medical services because of her inability to wear a face mask.  The complainant also submits that the respondent failed to provide her with reasonable accommodation considering her disabilities and that she was harassed on several occasions as she could not wear a face mask.

Notification of the complaint was sent by registered post on the 6/09/2022 to the respondent with an intention to seek redress under the Acts. No reply was received to the notification and a complaint was received by the Workplace Relations Commission (WRC) on 20/12/2022. The respondent subsequently sent a response to the WRC dated 20/4/2023 replying to the issues raised by the complainant in her complaint form.    

The complainant further submits that she was the subject of victimisation on the grounds that after lodging her complaint with the WRC she was removed as a patient from the respondent’s medical practice when she was removed as a patient from their medical card panel, which she submits was in reaction to her lodging her complaint. The complainant forwarded a letter dated 3/5/2023 by post and email to the respondent notifying them that she was pursuing a claim of victimisation under the Acts. No response was received by the complainant.

The Respondent denies that it discriminated against the complainant as alleged and is disputing all complaints.  

The following is a summary of the complainant’s case as set out in the complaint form and other documentation submitted on her behalf.

The complainant submitted that on the 30/08/2022, as the most recent act of discrimination, that she was contacted by a receptionist of the respondent to arrange a medical appointment and was informed that she was required to wear a face mask while attending her appointment. The complainant informed the receptionist that she couldn’t wear a mask due to her disabilities and that she has a healthcare passport stemming from a diagnosis of autism and therefore is entitled to be reasonably accommodated.  She submitted that the receptionist insisted that she was required to wear a mask in line with the respondent’s practice protocol and did not obtain a medical appointment in person however she was advised that a doctor would call her the next morning.

The complainant submitted that there were various other incidents when she was discriminated against and harassed because she could not wear a face mask when she was attending the respondent’s practice. On the 21/6/2022 the complainant attended a medical appointment with a named doctor.  She was informed by the respondent’s receptionist that she was required to wear a mask if attending a medical appointment however she was allowed to the wait in the internal waiting area without wearing a mask and was seen by the named doctor without wearing a mask.   

The complainant submitted that on various other dates such as the 22/04/2022, 28/04/2022 or 24/5/22 while attending medical appointments she was not wearing a face mask. She referred to an alleged incident involving the receptionist who the complainant alleges informed her she was required to wear a mask and who refused her permission to wait in the internal waiting area without wearing a mask, and the complainant had to wait in her car.

The complainant submitted that on the 21/01/2021 that she was allegedly harassed by Dr Cahill because she could not wear a mask. She stated that the doctor tried to refuse to treat her and told her that she was able to wear a mask previously. This caused the complainant to have a panic attack, she said that she wore a face shield even though she found it extremely difficult to tolerate. 

The complainant submitted that on the 15/06/2021 that she was allegedly harassed by a named nurse in the respondent’s practice because she couldn't wear a mask. The complainant outlined an incident involving a medical procedure which she found very painful. She stated that during this appointment she wore a face visor, and alleged that the nurse in question made the procedure deliberately painful for her because she was not wearing a face mask.

The complainant submitted that the respondent discriminated against her on the grounds of her disability by refusing her access to medical services and treatment and by failing to provide her with reasonable accommodations as set out in her health care passport.

Victimisation complaint  - CA-00071578-001

The complainant sent an email to the WRC on the 24/4/2023 stating the following;

 “I have made a complaint under the Equal Status Act under the above case number, since making this complaint I have been stopped from attending the place of business that is subject of the complaint.

I feel this amounts to Victimization. I have not been given a date yet for my hearing but I am wondering do I have to make a separate complaint in regard to the Victimisation  or will it be dealt with as part of my original complaint?....”

The complainant sent a letter to the respondent dated 3/5/2023 by registered post and email, informing them that she believed she had been victimised as she had been removed as a patient from the medical practice further to a letter dated 13/2/23 as a result of her lodging a complaint with the WRC. 

The complainant submitted that she suffered an alleged detriment by the fact that she was removed as a patient from the respondent’s medical card panel after she lodged her complaint with the WRC in December 2022. The complainant relies upon a letter from the respondent dated 13/2/2023 as evidence of the reason for her removal as a patient which referred to”… your recent complaints and your ongoing dispute with our Practice, “which the complainant alleges refers to her referral of this complaint to the WRC in December 2022. 

The complainant also submitted a further letter from the National Medical Card Unit of the HSE dated 24/2/2023 enclosing a Change of Doctor Form.

Summary of the Evidence of Ms Sarah Mangan, the Complainant

The following is a summary of the complainant’s evidence.

The complainant stated that she had been a patient of the respondent’s medical practice since 1987 which was run by a different doctor at that time, the respondent’s medical practice changed their name to Saffron and Blue Medical Clinic in 2010. The complainant is a medical card holder. 

The complainant attested regarding her medical history that she has mental health issues including depression and anxiety and was referred to a day hospital for depression. As a medical card holder with the respondent medical practice, she was under the care of a named GP of the respondent’s practice. However, when she attended medical appointments, she was seen by any of respondent’s GP’s. 

In July 2021 the complainant was diagnosed with autism by a doctor working with a specialist autism practice who provided her with a report which she gave to the respondent.  She was diagnosed with anxiety in 2004 and takes medication for that and has been taking anti-depressant medication on an intermittent basis since 2004.  

In 2014 the complainant was diagnosed with dermographism urticaria, a skin condition, by a dermatologist. She stated that she has extremely sensitive skin and can have a histamine reaction such as itching, when she has to wear a mask on her face. 

In 2004 the complainant was diagnosed with asthma, she attested that she has always had a difficulty breathing, therefore it is difficult for her to wear a face mask.

The complainant stated that because of her autism condition she has sensory issues; she is very sensitive to heat and by wearing a mask she is creating heat, she also finds it difficult putting a mask on over her ears. She stated that wearing a face mask also triggers her anxiety as she feels she cannot breathe.

The complainant referred to various incidents as set out in her complaint form, commencing with an incident on the 30/8/2022 when she phoned the respondent’s practice seeking an in person appointment. She told the receptionist that as her anxiety was bad that she couldn't wear a mask and also due to her autism and skin condition. She did not receive a response. She was repeatedly told that she wouldn't get a medical appointment without wearing a mask. She was told she was on the “purple list” which means a doctor will give you a call back. She stated that she couldn't remember if a doctor called her back, possibly the next day.

On the 21/6/2022 the complainant attended for a medical appointment and was informed by the receptionist that she was required to wear a mask.  She told the receptionist that she couldn't wear a mask due to her disability, she stated that the reception area was packed, and she didn't want to discuss her medical condition in public. She was informed by the respondent’s receptionist that she was required to wear a mask if attending a medical appointment however she was allowed to wait in the internal waiting area without wearing a mask and was seen by a named doctor without wearing a mask.   

The complainant stated the only time she was refused access to a medical appointment was in August 2022. The complainant stated that in 2021 and 2022 she regularly attended various GP’s in the medical clinic without wearing a mask and was sometimes asked to wait in her car or in the internal waiting area. She stated that the respondent’s practice on masking wearing was not consistent. The complainant stated that on the 28/4/2022 and on the 24/5/2022 she was allowed in the respondent’s medical clinic without wearing a mask.

The complainant stated that on the 21/01/2021 that she was harassed by Dr Cahill because she could not wear a face mask. She refused to wear a mask for Dr Cahill during her appointment and told her that she would have a panic attack if she was required to wear one. She confirmed that she received an injection from Dr Cahill after a protracted incident when the complainant asked her if she was refusing her treatment.

The complainant stated that on the 28/7/2020 she had a previous incident with Dr Cahill when she was forced to wear a mask and started to hyperventilate.

The complainant submitted that on the 15/06/2021 she was harassed by a named nurse working in the practice because she couldn't wear a mask. She was told by the nurse that she had to wear a mask and that she was following the respondent’s guidelines on mask wearing. The complainant outlined an incident involving a medical procedure which she stated she found very painful. She stated that during this appointment she wore a face visor. During the procedure Dr Cahill examined her and referred her for a scan.  She stated that Dr Cahill was hostile towards her, and she was treated harshly during the examination.  The medical notes from the consultation created by the nurse were negative towards her which she stated amounted to harassment.

The complainant obtained her healthcare passport from a specialist autism practice further to her diagnosis of autism, exhibited at the hearing, which she provided to the respondent. The purpose of the healthcare passport is to assist healthcare providers to gain a full understanding of all the accommodations that are required for the person with autism when attending medical appointments but does not refer to an accommodation regarding wearing a mask.

She further stated that she was more comfortable wearing a face visor. The complainant attested to the fact that she attended other GPs in the respondent’s medical clinic without wearing a mask and outlined that she had told a particular GP that she couldn't wear a mask due to her asthma, anxiety and sensory issues related to her autism.  

She stated that she lodged an ES1 form on 6/9/2022 and sent her complaint form to the WRC on 20/12/2022.

The complainant exhibited a letter she received from the respondent dated 13/2/2023 which stated;

“In light of your recent complaints and your ongoing dispute with our Practice, we feel that the doctor/patient relationship has broken down and we feel that you would be best served by another GP.

We wish you all the best for the future. “

The complainant stated that the first time she was made aware that she was being removed as a patient from the respondent’s medical clinic was when she received this letter. 

She stated that when she sent the ES1 form, in September 2022 she was still a patient with the respondent’s practice, and did not receive a response to her ES1 form. She stated that she was on various prescriptions and was attending six or seven different consultants for her various conditions at the time she was removed from their medical card panel. 

The complainant stated that she has been a patient with the respondent’s medical clinic from childhood and that she doesn’t like change. The practice moved from Ennis to Clarecastle, and she moved with it as she did not want to change doctors.

The complainant stated that she is a medical card holder and was not informed how to change doctors, she contacted the medical card section herself who informed her that she needed to find a doctor who would accept her on their medical card panel. She contacted 5 different medical practices in Ennis enquiring whether she could be accepted on their medical card panels and she stated they all enquired with her why she was changing doctors. She was refused by all 5 GP practices on the basis that all the practices were not accepting patients who were medical card holders.  She was informed by the Medical Card Unit that if she was unable to obtain GP acceptance, she could send the names of three GPs whom she had contacted, and she would be assigned a GP from that list. 

The complainant stated that she was assigned to a named doctor, (referred to as the new GP) on his medical card panel, on 31/3/2023. On the 14/4/23 she was sent a prescription for 3 months as she was taking anti-depressant medication.

She stated that she sent a letter to the respondent dated 3/5/2023 by registered post and by e-mail, exhibited at the hearing. The purpose of the letter was to inform the respondent that she had been victimised by them and that she intended to pursue a complaint with the WRC. She did not receive a response from the respondent, nor did she receive any information from them regarding the transfer of her medical records. She stated that she had to tell her new GP why she was removed as a patient, which was a difficult conversation. The respondent did not clarify whether all her medical records had been transferred.

The complainant stated that she has a complex medical history, as she has 10 different medical conditions as listed by the respondent in their letter dated 13/2/2023 to the Medical Card Section of the HSE, exhibited at the hearing, and several more conditions.  The complainant is taking a list of medications and has repeat prescriptions.

In response to a question from me regarding the impact upon her of her removal as a patient, the complainant replied, “It is awful - I don't trust doctors anymore”.

As she has a complex medical history the complainant found it difficult to explain her medical history in full to her new GP. For instance, she has hemochromatosis and wasn’t aware of her ferratin levels and has large pituitary gland and didn’t get any information on that when she was leaving the respondent’s practice. 

At this juncture in the hearing the complainant exhibited various documents from her medical file received from the respondent. The complainant referred to a letter from the respondent dated 12/1/2023 outlining her medical history for the purpose of a social welfare appeal, which letter she requested when her application for disability payment was refused. She stated that in this letter in the context of her medical history the respondent referred to her autism condition. 

Cross Examination  

On the first hearing day Dr Gavin put the following matters to the complainant regarding her various disabilities by way of cross examination.

It was put to the complainant that the respondent was disputing her diagnosis of autism on the basis that a more in-depth medical report was required. It was put to the complainant that the respondent was not disputing her diagnosis of asthma or anxiety. However, it was put to the complainant that the respondent was contesting the link that either of these medical conditions (asthma and/or anxiety), would prevent her from wearing a face mask. It was put to the complainant that there was no evidence to suggest that wearing a face mask causes shortness of breath. Dr Gavin stated that he accepted the complainant suffers from anxiety, but there was no evidence to suggest that wearing a mask could trigger anxiety.  Dr Gavin also accepted that she has a skin condition, but it was put to the complainant that he did not accept that there was a link between the skin condition she was suffering from and an inability to wear a mask.  

On the second hearing day under cross examination, Mr Bunbury asked the complainant whether she thought that there was a good relationship between her and the respondent.  The complainant replied that she would have preferred it if a doctor from the respondent’s clinic had discussed any problems they had with her. It was put to the complainant that she didn't contact the respondent after receiving their letter dated 13/2/2023. The complainant replied that she didn't understand why she would contact the respondent as she had been removed as a patient.

It was put to the complainant that she was not a patient of the respondent’s practice but assigned to their GP medical card list. The complainant replied that it was her understanding that she was a patient with the practice and that a named GP of the respondent’s practice had signed a document to that effect.  

It was put to the complainant that she was still a patient of the respondent’s practice until a new GP practice took her on. The complainant replied that she was not aware of that position nor was any information sent to her by the respondent on this matter. She further stated that her understanding of the letter dated 13/2/2023 was that she was finished with the practice as a patient as the letter was clear on this. 

It was put to the complainant whether she accepted that the relationship between herself and the respondent had broken down. She stated that she understood that after receiving the letter of 13/2/2023, but prior to receiving the letter she believed she had a good relationship as she did not have any issues with several doctors in the practice, she only had an issue with Dr Cahill, a particular nurse and a receptionist.

It was put to the complainant that she had received all her medical records from the respondent as had her new GP.  It was put to the complainant that the way the medical card system operates is that a patient remains a patient of the practice, until the point that a new practice is assigned to that patient. The complainant stated that this position was not set out in the respondents’ letter of 13/2/2023.

It was put to the complainant that the evidence from both doctors present at the hearing would be that they had difficulties with the complainant, that she had pursued a confrontational avenue with them, and therefore any trust between the partners in the practice and the complainant had broken down. Mr Bunbury put to the complainant that it was in her best interests to seek an alternative doctor.

The complainant replied that she had not been treated by either Dr Quigney or Dr Gavin in the past three years apart from one appointment and that she didn’t have a relationship with either of them. It was put to the complainant that her medical files were formally transferred to her new GP on the 18/4/2023, that the transfer happened very quickly in accordance with all HSE procedures.

It was put to the complainant that doctors had to work during the COVID-19 pandemic, and that the respondent followed all relevant guidelines from the HSE regarding mask wearing. The complainant accepted this.

The complainant confirmed that she was refused a service by the respondent on the 30/8/2022 as she had asked for an in person medical appointment. It was put to the complainant that the evidence of the respondent would be that on the 30/8/2022 the receptionist called her back three times regarding an appointment. The respondents’ evidence would be that the matter was discussed with another doctor who assessed the urgency of the request for an in-person appointment and determined that there was no immediate urgency, an in-person appointment was made for the 15/9/2023, therefore she was facilitated with an in-person appointment. The complainant disputed this and stated that she was told by the receptionist that a doctor would call her back and she would not get an appointment without wearing a mask.

It was put to the complainant that in relation to the incident on the 21/6/2022 that the respondent would say that to facilitate her she was placed in a room on her own while waiting for her appointment. It was put to the complainant that in relation to her allegation of harassment by Dr Cahill in respect of an incident on the 21/1/2021, this was denied by the respondent.

In response to a question regarding how her conditions would prohibit her from wearing a mask the complainant confirmed that due to her skin condition as a result of wearing a mask her skin would start to itch, due to her anxiety she would start to experience a shortness of breath, and she found it difficult to breath.

It was put to the complainant that she wanted to obtain a diagnosis of autism so that she wouldn’t need to wear a mask. The complainant agreed that she notified the respondent of her diagnosis of autism in August 2021, when she obtained an official diagnosis of the condition. 

In reply to a question from me the complainant confirmed that further to her request for an in-person appointment on the 30/8/2022 she was seen by a named doctor with the respondent.

Legal Submissions

The complainant in her written submissions relied upon a decision of the WRC, An Outpatient v A Clinic ADJ-00032480and submitted that the facts of the case were on all fours with her case.

The complainant submitted that she has attended appointments for MRI scans with another medical clinic and was not refused access due to her inability to wear a mask. 

The complainant accepted that she was provided with reasonable accommodation by the respondent on several occasions, she further stated that “I believe this does not give them immunity for not accommodating me for that appointment and for the harassment I endured”.

The complainant also cited the decision of A Service User v A Dentist and A Dental Clinic. 

In support of the complainant’s complaint of victimisation, the complainant cited ADJ-00020428 where an Adjudication Officer determined for a complaint of victimisation to succeed, it is not limited to situations in which a complaint of discrimination is upheld as long as the adverse treatment complained of falls within the ambit of one of the protected grounds.

The complainant also relied on the Labour Court determination of Department of Defence v Tom Barrett EDA 1017 where a complaint of victimisation was upheld by the Court and cited the following:-

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution. Article 11 of Directive 2000/78/EC requires Member States to introduce into their legal systems such “measures as are necessary to protect employees against dismissal or other adverse treatment by employers as a reaction to a complaint within the undertaking or to any legal proceedings aimed at enforcing compliance with the principle of equal treatment.”

The complainant submitted that she was victimised by the respondent as she was removed as a patient from their practice when she was removed from their medical card panel and submitted that this treatment was directly linked to her referral of this complaint under the Acts. 

Sum Up

In summation the complainant asserted that she was repeatedly told by the respondent’s receptionist that she was required to wear a face mask.  She further stated that initially at the hearing the respondent had accepted her diagnosis of autism however at a later stage questioned the validity of her diagnosis.

The complainant submitted that the respondent never discussed with her or informed her that they had a problem with her in terms of the breakdown of the doctor/patient relationship. She has attended other clinics and was not required to wear a face mask. 

The respondent disputes all the claims in full. Firstly, the respondent disputes that the complainant is a person with a disability within the meaning of Section 2 (e) of the Acts on the basis that the complainant has not provided any credible evidence to support her claims regarding her various medical conditions. However, the respondent does not dispute the complainant’s assertion that she suffers from anxiety, asthma, and idiopathic dermographism uritcaria. The respondent does not accept that the complainant has a valid diagnosis of autism.

Furthermore, it is submitted that the complainant has failed to provide any credible evidence that any of her medical conditions accepted by the respondent would restrict, inhibit or prevent her from wearing a mask. On the contrary it is submitted that the wearing of a mask would in fact be beneficial to the complainant as she suffers from asthma. In addition, it is submitted that the complainant at the start of the COVID-19 pandemic did wear a face mask initially.

It is denied that the respondent discriminated against or harassed the complainant as alleged nor did they fail to provide her with reasonable accommodation. The respondent disputes the claim of victimisation.

Summary of Evidence of Dr Maeve Cahill

Dr Cahill stated that she saw the complainant twice in 2020 and on both occasions the complainant was wearing a face mask. There was no confrontation with her on either occasion.  The complainant told her that she found it difficult to wear a mask. Dr Cahill stated that she was like other patients who found it difficult to wear masks.

Dr Cahill described what it was like working as a doctor during the COVID-19 pandemic and stated that it was a very stressful time. She stated that as a medical practice they were doing their utmost to look after patients to the best of their abilities, in a very challenging time.

Dr Cahill exhibited at the hearing a document entitled “Guidance on Managing Risk of Transmission of Respiratory Viruses including COVID-19 in General Practice”, published by the HSE and stated that the practice was following these guidelines as their mask wearing policy.  She stated that the Committee of General Practice was guiding them on how to work and they were required to have proper mask wearing procedures in place.

Dr Cahill denied that she harassed the complainant as alleged on the 21/1/2021. She exhibited at the hearing a note of her consultation on that date, which stated the following:-

“Neocytamen injection LD…..……… difficult consult as Sarah refused to wear a mask although she has worn here before - reports she cannot tolerate mask and would only agress to face shield- then she asked was I refusing her medical treatment based on same…….”

Dr Cahill confirmed that she never witnessed the complainant having a panic attack in the context of wearing a mask during a consultation. She further stated that in her view she was not aware that any of the complainant’s medical conditions would prevent her from wearing a mask. She stated that the College of General Practitioners were running weekly zoom meetings providing ongoing updates regarding the pandemic. She outlined that she could not recollect any advice from them referring to patients with anxiety /asthma or skin conditions, which would prevent them from wearing a mask.

Dr Cahill did not accept that any of the complainant’s medical conditions prevented her from wearing a mask.  She stated that she had seen the complainant in 2020, and she was wearing a mask. She qualified this by stating that she was not saying that it wasn't difficult to wear a mask but that nothing struck her from a medical perspective which would prevent the complainant from wearing a mask.

In relation to the incident on 15/6/2021 she was asked by a named nurse to assist her during a consultation with the complainant involving a medical procedure.  She referred the complainant for a scan as was the standard practice and by mistake referred her to a private clinic, she then redirected the referral to a public clinic. Dr Cahill denied that she harassed the complainant during this consultation, as alleged.

She stated that during the consultation on the 21/1/2021 she asked the complainant to wear a mask for her own safety and to protect vulnerable patients. Notwithstanding that the complainant did not wear a mask, she was treated and received an injection.  She stated that the population at that time was unvaccinated, and people were dying from COVID-19.

Dr Cahill confirmed that she had no recollection of the complainant hyperventilating or having a panic attack during her consultations.

Summary of Cross Examination

Dr Cahill acknowledged that the consultation which took place on the 21/1/2021 was difficult and she was surprised that the complainant refused to wear a mask and further stated that any consultation where there is confrontation with a patient is difficult. She further stated that she did not recollect the complainant having difficulty breathing during previous consultations.

It was put to Dr Cahill that the consultation was too long and that she was refusing to give the complainant an injection because she was not wearing a mask.  

Dr Cahill denied that she demanded the complainant to wear a mask but instead requested her to wear one on the 21/1/2021.

Dr Cahill confirmed that the complainant had requested not to be treated by her after the consultation on the 15/6/2021. She denied that she ever refused treatment to the complainant.

In response to a question from me Dr Cahill stated that in her opinion at the relevant time the complainant’s three medical conditions as referred to did not restrict or prevent her from wearing a face mask.

Summary of Evidence of Dr Marie Quigney

Dr Quigney described the rules of practice that were in place during the COVID-19 pandemic for a GP practice and referred to various sections of the document from the Health Protection Surveillance Center of the HSE, as referred to by Dr Cahill.  She stated that everyone who came into the practice was asked to wear a mask.  In reference to the guidance document, Dr Quigney described  the operational processes that were in place in the respondents’ practice during the COVID-19 pandemic.

Dr Quigney denied that the complainant was refused access to care or medical services.

In relation to the incident on the 30/8/2022 Dr Quigney stated that the complainant may not have been granted an immediate appointment the next day.  A named doctor reviewed the situation and assessed the urgency of the request for an immediate appointment and decided that it was classified as “routine”. An appointment was granted to the complainant on the 15/9/2022 and she was seen by a named doctor in person and was not required to wear a mask.

Regarding the complainant’s diagnosis of autism, I put it to Dr Quigney that the respondent medical practice appeared to have accepted her diagnosis of autism as set out in their correspondence. Dr Quigney replied that she is not an expert in autism. She further stated that the report regarding the complainant’s diagnosis of autism was placed on her file and referred to in further letters from the practice based on “patient advocacy and to support the complainant in her view of having autism.” She stated that the complainant gave various documents regarding her diagnosis of autism to a named doctor in the practice. 

Dr Quigney referred to a letter dated 12/1/2023 from a named doctor regarding an appeal by the complainant of a decision of the Department of Social Welfare refusing her a disability payment, exhibited at the hearing. She stated that the letter was provided to the complainant to support her in her appeal application, however she was not clear on whether the complainant had a diagnosis of autism. 

Dr Quigney outlined that anytime the complainant was seen in the practice without a mask it was by arrangement only in accordance with their protocol on mask wearing. She further stated that there was no guidance from the HSE on what medical conditions would prevent a patient wearing a mask or who could not wear a mask. Therefore, the practice decided on a case-by-case basis on this matter, and the default system was to require everyone to wear a mask. 

Dr Quigney confirmed that a named doctor did see the complainant on the 21/6/2022 and she did not need to wear a mask.

Dr Quigney outlined the circumstances in November 2020 regarding a request from the complainant to be referred for an assessment for autism, and the steps taken further to this request.

Dr Quigney denied that the complainant had been refused medical services by the respondent’s medical team and stated that she has been a patient with their GP practice for over 36 years, and she has always been accommodated.

Dr Quigney outlined the process in place in the practice for the allocation of appointments during the pandemic when a patient was unable to wear a mask and referred to an internal waiting area where patients could wait without wearing a mask or the possibility of a patient waiting in their car. She further described how the practice decided whether a patient was provided with an appointment without having to wear a mask, they had to balance the risk to vulnerable patients in this context. 

She further stated that every patient was asked to wear a mask in the clinic and that there were two other patients with severe autism in the practice who had sensory issues who wore masks.

In relation to the incident on the 30/8/2022 Dr Quigney stated that she supported the reaction of the receptionist who was working at that time, she was following their protocol, and the complainant was granted an appointment.

Dr Quigney stated that in her medical opinion and in accordance with the information provided by the College of General Practitioners, none of the complainant’s medical conditions caused a physical limitation that would inhibit the complainant from wearing a mask. She stated that the complainant had previously been able to wear a mask in 2020, and that something had changed since then. 

Dr Quigney confirmed that the respondent’s medical team had not received any document from the complainant stating that due to her various medical conditions she was unable to wear a mask.

Summary of Cross Examination

It was put to Dr Quigney by the complainant whether she was aware of any adverse effects on patients from wearing face masks. Dr Quigney replied that she was aware of the difficulties for some people in wearing face masks and that the practice tried to accommodate those who could not wear face masks.

It was put to Dr Quigney how did she know how to clinically assess the complainant as a patient, if she hadn’t examined her. Dr Quigney replied that the doctors in the practice operated as a team and would discuss patients in confidence. She was informed of several complaints from the complainant regarding Dr Cahill and a named nurse, regarding the incidents in question she stated that medical care was provided to the complainant.

In re-examination Dr Quigney stated that there are 8 or 9 doctors in the practice. She further stated that it is very difficult to recruit a doctor for a GP practice, as a patient it is also difficult to find a GP practice, or to get cover as a GP while on annual leave. 

Dr Quigney accepted that the complainant has several medical conditions and has had several medical investigations. 

In response to a question from me regarding whether she was involved in the decision to remove the complainant as a patient from their medical card panel, Dr Quigney replied that the complainant was technically on the list with a named doctor of the respondent’s practice, however, the decision was made collectively to remove her from their medical card panel.  

At the end of the hearing, Dr Quigney stated that the respondent did not victimise the complainant, nor intended to victimise her or cause her any hurt.

Summary of Evidence of Dr Colum Gavin, Director with the respondent’s medical practice

The witness stated that he has been involved with the complainant’s care for a long time. Dr Gavin stated that he joined the practice in 2006 and had seen the complainant as a patient many times over 7/8 years.

Dr Gavin described the complainant’s main medical conditions as asthma and anxiety. He stated that he didn’t consider the complainant’s condition of anxiety debilitating, and that the complainant’s history of employment proves this.

Dr Gavin stated that the practice had done its best to look after the complainant and had a good relationship with her, however there were several incidents with her.  As a result of these incidents, he concluded that it was clear to him that the complaints’ trust in the practice had been eroded, he felt it was becoming unsafe for them as a practice to continue in a “fraught” relationship. Dr Gavin described the relationship between the respondent’s medical team and the complainant as “fractured”. He believed that the complainant no longer had faith in their practice, everyone was aware of the “fraught” relationship.

Dr Gavin stated that he was aware that the complainant was recording telephone calls as their   receptionist had informed them of this. He was concerned about the lack of trust on the complainant’s behalf.

In reply to a question from his solicitor, Dr Gavin agreed that it is essential that there is a relationship of trust between a doctor and a patient and it was of grave concern to him if trust was lacking. 

Dr Gavin stated that at the end of January 2023 it was discussed at partnership level that in the case of a patient who was unhappy with the practice and had lost trust in the practice “to the point of issuing legal proceedings” against it, the partners decided to remove the complainant as a patient from the practice. He confirmed that the practice received a complaint form, an ES1 form, from the complainant in September 2022. They were aware that legal proceedings were underway, which he stated demonstrated that the relationship had broken down.

Dr Gavin outlined the process within the medical card scheme in the event of a breakdown in the doctor/patient relationship; once the registered doctor decides to remove a patient from their panel, they can write to the medical card scheme stating same and request that the patient is reassigned to another doctor. 

He further stated that once the medical card scheme section is made aware of the situation, they will contact the patient to inform them of the option to be assigned to a doctor of their choice. If they cannot obtain GP acceptance, a doctor will be allocated to them from the names of three practitioners who have refused them. He stated that there is a time limit of 21 days running from the date of notification.

Dr Gavin highlighted that the onus was on the medical card section of the HSE to advise the complainant that she was still patient with the respondent practice. He confirmed that the transfer to another practice took place within 21-day period, and that as a medical card holder a patient has the option to present to another GP in the medical card scheme.

Dr Gavin confirmed that the complainant did not contact the practice further to their letter of  13/2/2023. Dr Gavin stated in response to a question from Mr Bunbury, that the complainant was removed due to a lack of trust between her and the practice, the decision was unrelated to the fact that the complainant had issued proceedings against the practice.  

Summary of Cross Examination

In response to a question from me, Dr Gavin stated that he never approached the complainant to discuss the breakdown in the doctor/patient relationship. He stated that the complainant had an issue with three units in the practice, the receptionist team, the nursing team, and the medical team.

Dr Gavin confirmed that he was not aware of any other proceedings issued by the complainant against the respondent. He stated that “out of courtesy” to the complainant the respondent sent her a letter dated 13/2/2023. He further stated that there was an onus on the HSE to inform her that she could contact the respondents’ practice while waiting to be assigned to another doctor.

Regarding a letter sent by the respondent to the medical card section of the HSE dated 13/2/2023, exhibited at the hearing, Dr Gavin agreed that it was an accurate reflection of the complainant’s medical history.

In response to a question from me, Dr Gavin stated that he did not place any reliance on a letter dated 12/1/2023 regarding an appeal of a social welfare decision, as a medical opinion, furnished by the respondent.  The letter was provided by the practice in their capacity as part of patient advocacy and not in the capacity of providing a medical opinion or providing a picture of the complainant’s medical history. 

Legal Submissions

The respondent furnished several written submissions dated 6/10/2023, 3/11/2023, and 22/11/2023 in addition to various correspondence and supporting documentation. The respondent denies all the claims in full, and the following is a summary of the principal legal arguments relied upon. 

The respondent accepts that the complainant suffers from asthma, anxiety and idiopathic dermographism urticaria. However, the respondent questioned the complainant’s “diagnosis” of “autism in so far as the sole basis for the claimant’s disability appears to be a one-line letter dated 9th July 2021 from a non-medically qualified psychologist based in Dublin.” It was submitted that this cannot be considered to equate to a medical diagnosis of autism. In this regard it was contended that the complainant has failed to provide any credible evidence that she comes within the definition of a “disability” pursuant to Section 2(e) of the Acts.  

Furthermore, it was submitted that the complainant failed to provide any credible evidence that any of her medical conditions accepted by the respondent would restrict, inhibit, or stop her from wearing a face mask. It was submitted that Dr Gavin  pointed out at the hearing on the first hearing day, that the wearing of the mask would in fact be specifically beneficial to the complainant as she suffers from asthma and the standard request that she be treated like all other patients and wear a mask when attending at the respondent’s practice was to her specific benefit. Furthermore, it was contended that the complainant did wear a face mask initially at the start of the pandemic which was noted by Dr Cahill in her consultation notes. It was denied that the complainant was discriminated against, harassed, nor was she victimised. It was submitted that she was being asked to do the same thing that every other patient was being asked to do.

The respondent denies that it did not provide the complainant with reasonable accommodation, it was submitted that the complainant has failed to provide any credible evidence of this. It was asserted that Dr Gavin explained in detail on the first hearing day the procedures that the respondent put in place to accommodate the complainant by; - providing her with a separate room from the other patients, and alternatively the complainant was requested to wait outside in her car. 

The respondent relies upon Section 4(4) of the Acts to defend these claims. It is further submitted that the respondent was entitled to follow standard COVID-19 rules as those rules were designed to protect patients from each other and were reasonable and proportionate.

It is denied that the respondent treated the complainant in a different way to its other patients, it was submitted that even if it is considered to have done so, the respondent is entitled to rely on Section 16(2)(a) of the Acts. In this regard it was submitted that the respondent was relying on its own clinical judgement in all its dealings with the complainant as provided for under Section 16(2)(a) of the Acts.

In addition, it was submitted that the respondent relies upon Section 14(b) of the Acts in that it was relying on all emergency recommendations, rules and legislation that were in place at the particular time. 

By way of submission dated 22/11/2023 the respondent’s representative made the following legal submissions and furnished two documents; - 

1.       Copy Guidance on Managing Risk of Transmission of Respiratory Viruses Including COVID-19 in General Practice. (“the Policy”).

2.      Copy email from a named doctor, the new GP dated 18.04.2023.

The respondent denies the complaints on the basis that their medical team acted in accordance with best practice and the “Policy”. It was submitted that the safety of the respondent’s patients and staff were at the forefront of everything they did during the COVID-19 pandemic. All advice and recommendations from the government, the HSE and all medical bodies was to follow the “Policy”, which evolved over the pandemic period and was at all times adhered to.

It was submitted that the complainant’s assertion that she is on the autistic spectrum is very much a grey area, even if she is considered to be autistic, this diagnosis does not automatically equate to her being disabled within the meaning of the Acts as the spectrum is very wide. It was submitted that the respondent noted this condition on her medical records/notes based on the complainant’s request that they do so, and the one-line letter dated 9/7/2021 and Healthcare Passport received by the respondent on the 18/8/2021. 

It was further submitted by the respondent that in its capacity as a patient advocate it assisted her in her application for a disability payment benefit at the time but on reflection it was stated that they would not do so again especially having had an opportunity to fully review her medical notes and records and taking account of the expert opinion provided in March 2021 of the HSE psychiatric and psychological team.

It was further submitted that none of the complainant’s other medical conditions, including anxiety, could be deemed to come within the definition of the Acts, and that the complainant is a very capable person and has demonstrated this in her presentation of her claim in what can reasonably be considered a very stressful environment.

The respondent rejects the claims of alleged harassment. It was submitted that the respondent provided the complainant with the care and treatment she requested in a professional manner and in accordance with best practice and the “Policy”.

The respondent refutes all incidents cited by the complainant regarding an alleged failure by the respondent to provide her with reasonable accommodation on the basis that it provided the complainant with the care and treatment that she sought and had also provided her with reasonable accommodation given her refusal to wear a mask.

Legal Submissions - victimisation complaint CA-00071578-001

It was submitted that the complainant has not provided any evidence to support her claim that the respondent victimised her by its decision to terminate the doctor / patient relationship in February 2023. The respondent submitted the following specific points;-

a)     The Complainant had previously requested that the respondent provide her with all of her medical notes/records, and she was given these in April 2022.

b)     The complainant is a patient of the HSE as a medical card holder and is assigned a doctor under the Medical Card Scheme. The respondent happened to be assigned to her under this scheme during the disputed period.

c)      For a positive doctor/patient relationship to exist, there cannot be any ongoing disputes or issues between the parties and specifically where the patient has lost faith in the practice, it is impossible for that relationship to continue. It was submitted that “to continue with a fraught relationship where there is active litigation would be detrimental to the patient and her best interests and would inevitably lead to ongoing difficulties for both sides.” The respondent submitted that “as a consequence of the Claimants complete loss of trust with our client coupled with her decision to initiate proceedings against our client it was impossible for them to continue that relationship. Furthermore, our client was concerned that if it continued to treat and interact with the Claimant that additional litigation would most likely ensue.” 

d)     Having identified an irretrievable break down in the crucial relationship, a named doctor on behalf of the respondent notified the complainant of its decision by way of letter dated 13/2/2023 and suggested that she engage another GP practice. The respondent did not place a time limit on the complainant identifying a new GP practice.

e)     Having received the notification, it was submitted that the complainant failed to make any contact with the respondent to discuss or clarify the next steps and instead decided to only communicate with the HSE. 

f)       The HSE informed the complainant of the standard process for all medical card holders to follow when changing GP practices. Part of this standard process is that the respondent continued to be her GP practice until a new practice was confirmed. 

g)     The complainant was assigned to a named doctor as her new GP on or about the 21st March 2023. 

h)     When a named doctor on behalf of the respondent received a request from her new GP for the complainant’s notes, it sent them to him and the new GP acknowledged receipt of those notes on the 18/4/2023.  

i)       The changing of GP practices was handled in an entirely reasonable and proportionate manner, was finalised efficiently and the complainant was at no time without a designated GP. It was submitted that the complainant was not victimised by the respondent’s decision to terminate the relationship, and the decision was made due to the complete breakdown of trust and confidence of the complainant with the practice and her decision to engage in a dispute / litigation process.

Sum up

In summation Mr Bunbury on behalf of the respondent asserted that the complainant was provided with all her medical appointments and therefore she did receive a service, therefore there was no refusal of a service in breach of the provisions of the Acts. It was submitted that the complainant was also provided with all reasonable accommodation measures and was never denied medical care. It was further submitted that the respondent did not receive any written correspondence from her that she wasn’t able to wear a face mask nor did she provide any medical evidence that due to her medical conditions she was unable to wear one. It was highlighted that the complainant had previously been able to wear a mask.

Mr Bunbury asserted that the respondent followed the correct procedure regarding removing the complainant from the practice in notifying the HSE and as a matter of courtesy the respondent informed the complainant.

Mr Bunbury stated that the respondent was relying on a previous decision of the WRC ADJ -0036098 Victoria Toneria-Fuentes v Brown Thomas Arnotts Limited on mask wearing taken under the Acts.

The Relevant Legislation:

Section 2(1) of the Acts defines “disability” in the relevant part 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 total or partial absence of a person's bodily or mental functions, including the absence of a part of a person's body,

c. the presence in the body of organisms causing, or likely to cause, chronic disease or illness, 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(1) provides in the relevant part that 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) (in this Act referred to as the ‘‘discriminatory grounds) which ….’’

Section 3(2)(g) provides in the relevant part that:

“as between any two persons, the discriminatory ground of disability is

(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”),

Section 4, in its relevant part, provides for reasonable accommodation in the following terms:

“(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.

(2) 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.

(3) A refusal or failure to provide the special treatment or facilities to which subsection (1) refers shall not be deemed reasonable unless such provision would give rise to a cost, other than a nominal cost, to the provider of the service in question.”

Section 5(1), in its relevant part, prohibits discrimination in relation to the disposal of goods and services:

 “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.” 

Section 11 in the relevant part provides for protection against harassment on any of the discriminatory grounds.

Section 21(11) provides for a case of continuing discrimination and in the relevant part states:

“(11) For the purposes of this section prohibited conduct occurs-

(a) if the act constituting it extends over a period, at the end of the period

(b) if it arises by virtue of a provision which operates over a period, throughout the period.”

Section 38A (1) provides for the burden of proof in the following terms:

 "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."

Discrimination complaint - CA-00054239-001

Further to Section 38A (1) the burden of proof test requires the complainant to establish, in the first instance, facts upon which she can rely in asserting that the prohibited conduct has occurred. The complainant must first establish a prima facie case of discrimination which involves several steps.

In Hallinan v Moy Valley Resources DEC-S2008-25, the Equality Officer held that, in order to establish a prima facie case of discrimination, the following must be established: firstly, the complainant must establish that he or she is covered by the relevant protected ground; secondly that the incident(s) complained of actually occurred; and thirdly the treatment constitutes less favourable treatment within the meaning of the Acts (than was or would be afforded to a person not covered by the relevant ground (a comparator) in similar circumstances.

There must be a fact or facts of “sufficient significance” to raise a presumption of discrimination. It is not sufficient in itself to establish a claim of discrimination that the complainant falls within one of the discriminatory grounds laid down under the Acts. Other facts must be adduced from which it may be inferred on the balance of probabilities that an act of discrimination has occurred.

It is only when a prima facie case has been established that the burden of proof shifts to the respondent to rebut the presumption of discrimination.

I am satisfied that the respondent is providing a service within the meaning of the Acts.

The Acts requires a complainant to comply with two separate time limits. The first, at section 21(2), provides that a complainant must, within two months of the date on which the prohibited conduct is alleged to have occurred, notify the respondent in writing and inform them of his or her intention to seek redress.  Section 21(3)(a) provides that, for reasonable cause, the WRC may extend the two-month time limit to four months, or exceptionally, may disregard the time limit requirement.

The second time limit is set out at section 21(6) of the Act, and this provides that a complaint of discrimination may not be considered by an Adjudication Officer if it is referred to the WRC more than six months after the most recent incident of discrimination.  For reasonable cause, this time limit may be extended to 12 months. 

Ongoing and Continuing Discrimination

The complaint was lodged on the 20/12/2022, within the six-month time limit of the alleged breach and notice was given by the complainant to the respondent using the ES1 form within two months of the last alleged breach.  I determine that the cognisable period for this complaint is the 6-month period from the 21/6/2022 to the 20/12/2022. 

I note that the complainant cited the 30/8/2022 as the most recent date regarding an act of discrimination in her complaint form. Various incidents relied upon by the complainant relate to incidents which occurred well outside the cognisable period of the six-month time limit. 

For a case of ongoing discrimination to be made there must be a close connection between the alleged prohibited acts being joined. It is clear to me that all alleged acts of discriminatory treatment and harassment are connected in a chain of acts related to mask wearing and the complainant’s allegation that the respondent insisted on her wearing a mask in the context of receiving medical services. However, to rely on a chain of connected acts/continuing discrimination there must have been an actual act which I consider amounts to discrimination to have occurred within the six-month time limit.  

Allowing for the fact that relevant case law relating to equality matters have been made by employment tribunals, decisions determined by the Labour Court are cited in Equal Status cases. The Labour Court in Hurley v County Cork VEC EDA 1124 said that occurrences outside the time limit could only be considered if the last act relied upon was within the time limits and the other acts complained of were sufficiently connected to the final act to make them all part of a continuum. 

In the matter of Dunnes Stores v Breda Mulholland EDA 179 the Labour Court stated as follows,

“It is settled law that for the alleged acts of discrimination to be considered by the Court as representing a continuum of discrimination it is necessary to establish that acts of discrimination have actually occurred within the cognisable period set down by the Act for the making of the complaint.”

The complainant relies upon an incident on the 30/8/2022 which she submits constitutes discriminatory treatment which occurred within the cognisable period. Therefore, in my investigation of this complaint I must first establish if this incident amounts to discriminatory treatment. If I make a finding of discriminatory treatment, I am then empowered to investigate further alleged acts which fall outside the cognisable period. Alternatively, if I do not make a finding regarding this incident, I have no jurisdiction to investigate other acts as relied upon by the complainant.    

Definition of Disability 

I am required to investigate whether the complainant has established a prima facie case of discrimination on the ground of disability and/or a failure to provide her with reasonable accommodation contrary to Sections 3, 4, 5 and 11 of the Acts as against the respondent. This requires application of the relevant provisions of the Acts to the factual matrix. 

The first question I am required to determine is whether the complainant has a disability within the meaning of Section 2(1) of the Acts. This matter is disputed by the respondent.

The complainant submitted that she has various disabilities and referred in her evidence to the following conditions, anxiety and asthma (diagnosed in 2004), dermographia urticaria, a skin condition (diagnosed in 2014) and autism (diagnosed in 2021).

It is clear from the evidence that the complainant has been a patient of the respondent’s medical practice for many years. I am of the view that the medical practitioners who gave evidence at the hearing would be aware of the complainant’s health issues and various medical conditions. Dr Gavin in his evidence accepted that the complainant has the following medical conditions, asthma, anxiety and idiopathic dermographism urticaria, however it was disputed that the complainant has a valid diagnosis of autism.

The respondent disputes that any of the complainants’ conditions come within the meaning of the definition of disability set out at Section 2 of the Acts.  It was further submitted that the complainant has also not provided any evidence that links any of her disabilities with a limitation such as an inability to wear a face mask. 

Regarding the complainant’s disabilities the question of whether the complainant has a valid diagnosis of autism was contested in oral evidence between the various witnesses appearing for the respondent and the complainant who strongly contended that she has a valid diagnosis of autism which was previously accepted by the respondent and should be considered as a disability within the meaning of the Acts. Further to my earlier decision on the matter of the admissibility of various medical reports regarding the complainant’s diagnosis of autism I wish to clarify that in weighing up the evidence in this regard I am not attaching any evidential value to any of the reports.

I note that the complainant sought to rely on letters from the respondent sent on her behalf as evidence that the respondent had previously accepted that she had a valid diagnosis of autism as the letters referred to that condition in the context of outlining her medical history. I note that the complainant is relying upon a letter dated 12/1/2023 from named doctor in the context of a social welfare appeal, which states “…..she has asked me to provide evidence, in the form of her medical history, in order that she may appeal the decision.” Further in the letter under a heading entitled “Medical History” ten different medical conditions are listed including “Autism………….18/8/2021”. The complainant also exhibited a letter dated 13/2/2023 from the respondent to the Medical Card Section of the HSE in support of her assertion in this regard.

I find the evidence of Dr Gavin to be unconvincing, on this point. I find it difficult to accept his evidence that the letter dated 12/1/2023 was provided in the respondent’s capacity as a patient advocate and not in the capacity of providing a medical opinion or providing a picture of the complainant’s medical history, as stated by him. This appears to me to be inconsistent with the purpose of the letter as stated by a named doctor who I note was not present at the hearing to provide evidence on this point.

I note that Dr Quigney in her evidence supported Dr Gavin on this point. However, on this point, I do not find Dr Quigney’s evidence to be persuasive or convincing when she stated that the complainant’s diagnosis of autism was referred to in further letters from the practice as part of   “patient advocacy and to support the complainant in her view of having autism”.

This line of argument is also inconsistent with the respondent’s letter of 13/2/2023 to the Medical Card Section of the HSE, which noted the complainant’s medical history listing 10 conditions including autism, referring to the date of diagnosis as  “Autism………….18/8/2021” . I note that Dr Gavin agreed in cross examination that this letter provided an accurate reflection of the complainant’s medical history. It appears to me that it would be imperative for the respondent to give a full picture of the complainant’s medical history in the context of her transfer to another GP practice under the medical card scheme.

Accordingly, I do not accept the evidence of the respondent’s witnesses on this point which I consider conflicts with the documentary evidence as referred to above. Therefore, I find that the respondent had accepted the complainant’s diagnosis of autism further to her referral and report from a specialist autism practice in 2021, which documentation was forwarded to the respondent.

The respondent’s representative submitted that none of the complainant’s conditions even if it is accepted that she has autism come within the definition of disability as defined in the Acts. Beyond the submission that the autistic spectrum is very wide, no further submissions were made regarding the complainant’s disabilities in the context of the definition. 

The definition of disability as set out in Section 2 (1) of the Acts has a broad meaning. In relation to the parallel definition in the Employment Equality Acts 1998 as amended, it is evident from the case law of the Labour Court and the WRC/former Equality Tribunal that this broad definition has generally been interpreted liberally with a non-exhaustive list of conditions being found to fall within its scope.

I note that the case cited by the complainant of An Outpatient v A Clinic ADJ ADJ-00032480, involved a complainant who is autistic which condition was held to come within the definition of disability.

I am satisfied based on the evidence of the complainant and the evidence of Dr Gavin one of her GP’s at the material time, that the complainant had various disabilities including asthma, anxiety and idiopathic dermographism urticaria which come within the scope of the definition of disability set out in the Acts. I am also satisfied based on the evidence adduced at the hearing and the reasoning set out above, that the respondent had accepted the complainant’s diagnosis of autism which I am satisfied also comes within the scope of the definition and which further to previous decisions of the WRC and the case referred to above, is accepted as a disability within the scope of the Acts.     

Discrimination / Reasonable Accommodation

The issue for determination is whether the Respondent discriminated against the complainant on grounds of her disabilities in terms of Section 3(2) of the Acts by refusing to provide her with a medical service and whether the Respondent failed to provide the Complainant with reasonable accommodation for her disabilities pursuant to Section 4 of the Acts.

Prior to applying the above statutory provisions, I am required to establish the material facts. There were many conflicts of evidence with regards to the facts in relation to various incidents cited by the complainant in her complaint form and in her evidence. The first factual matter that I am required to determine relates to the extent of the limitations arising from the complainant’s disabilities, which matter is disputed by the respondent.

The complainant asserts that the respondent discriminated against her on the grounds of her disabilities by requiring her to wear a mask while attending various medical appointments and therefore failed to provide her with reasonable accommodation.

The complainant submitted in her evidence that considering her disabilities as referred to above, she was unable to wear a mask for various reasons as outlined in her evidence, stemming from her disabilities of anxiety, autism, asthma and dermographism urticaria. However, she did not submit any medical evidence to support her assertion regarding any limitations arising from her various conditions such as an inability to wear a face mask.  

The respondent disputed that any of her disabilities resulted in an inability to wear a mask. All three witnesses for the respondent, Dr Gavin, Dr Quigney and Dr Cahill, stated in their evidence that none of the complainant’s disabilities gave rise to an inability to wear a face mask.  I must take on face value the evidence of the respondent’s witnesses who all asserted from a medical perspective that none of the complainant’s disabilities gave rise to a limitation regarding mask wearing.

I note the evidence of Dr Cahill who attested that she had a consultation with the complainant in 2020 and that she was able to wear a mask, she further stated that she accepted that it was difficult for her to wear a mask but that nothing struck her from a medical perspective which would prevent the complainant from wearing a mask. I note that Dr Quigney in her evidence also supported this view.

As the complainant was a lay litigant, to assist her in presenting her case, I informed her on the first hearing day that in light of the fact that Dr Gavin had disputed that any of her disabilities resulted in an inability to wear a mask, to support her case she should consider submitting some form of medical evidence regarding the limitations arising from her disabilities specifically to establish a link between any of the symptoms of her disabilities and an inability to wear a mask. No evidence was provided by the complainant in this regard, which is evidentially problematic for the complainant.

In the absence of any evidence from the complainant to support her assertion that due to her various disabilities she was unable to wear a mask, I am unable to determine as a matter of fact the nature and extent of any limitations stemming from her disabilities, specifically that she had an inability to wear a face mask.  

I am also required to investigate if the incident as alleged by the complainant which occurred on the 30/8/2022 constitutes discrimination to bring further acts of alleged discrimination within the remit of continuing discrimination.  In this regard I note the evidence of Dr Quigney that the urgency of the complainant’s request for an immediate medical appointment which she made on the 30/8/2022 without having to wear a mask was assessed by a named doctor as not urgent and the complainant was seen by a named doctor on the 15/9/2022 in person and was not required to wear a mask. I further note that the complainant confirmed that further to her request for an in-person appointment on the 30/8/2022 she was seen by a named doctor. Accordingly, I find that there was no refusal of medical service by the respondent’s medical team within the terms of the Acts and this incident as alleged does not amount to discriminatory treatment by failure to provide reasonable accommodation further to the provisions of the Acts.

Accordingly, I am satisfied that the complainant has not discharged the burden of proof on her, to prove facts from which a reasonable inference of discrimination can be found, regarding her complaint that the respondent discriminated against her on the grounds of her disabilities by requiring her to wear a face mask and by failing to provide her with reasonable accommodation measures contrary to Section 4 of the Acts.

In view of the above finding, I do not consider it necessary to resolve the many conflicts of evidence between the parties in relation to various incidents of alleged discriminatory acts, nor do I have the jurisdiction to do so further to my findings above.

Harassment 

Section 11 addresses harassment, which is defined in subsection (5) as “unwanted conduct” “related to a discriminatory ground and …… being conduct which in either case has the purpose or effect of violating a person’s dignity and creating an intimidating, hostile, degrading, humiliating or offensive environment for the person.”

The complainant submitted that on two separate occasions that she was subjected to alleged harassment by the respondent because she could not wear a mask. She submitted that on the 21/01/2021 that she was allegedly harassed by Dr Cahill because she could not wear a mask during a consultation but instead wore a face shield.

The complainant also described an incident that occurred on the 15/06/2021 where she alleged that she was harassed by a named nurse and subsequently by Dr Cahill because she could not wear a mask.

As both incidents occurred well outside the time limit and I have determined as set out above that the most recent act of alleged discriminatory treatment does not amount to discrimination within the terms of the Acts, I find that I have no jurisdiction to investigate these incidents of alleged harassment as they fall outside of the time limit.

Victimisation complaint - CA-00071578-001

Complaints of discrimination by way of victimisation require a separate decision to be issued pursuant to Section 25(1A). Further to my preliminary decision set out earlier, I determined that the complainant had referred a complaint of victimisation to the WRC by way of email dated 24/4/2023, which I consider to be the date of referral of this complaint.

The complainant is also required to satisfy the notification requirement in the context of a victimisation complaint as per Section 21 of the Acts.

Jurisdictional Issue – Notification Requirement

Section 21 of the Acts provides in the relevant part as follows:

“21.—(1) A person who claims that prohibited conduct has been directed against him or her may, subject to this section, seek redress by referring the case to the Director of the Workplace Relations Commission...

…(2) Before seeking redress under this section the complainant—

(a) shall, within 2 months after the prohibited conducted is alleged to have occurred, or, where more than one incident of prohibited conduct is alleged to have occurred, within 2 months after the last such occurrence, notify the respondent in writing of—

(i) the nature of the allegation,

(ii) the complainant’s intention, if not satisfied with the respondent’s response to the allegation to seek redress under this Act,

and………

(3) (a) On application by a complainant the Director of the Workplace Relations Commission…may—

(i) for reasonable cause, direct that in relation to the complainant subsection (2) shall have effect as if for the reference to 2 months there were substituted a reference to such period not exceeding 4 months as is specified in the direction, or

(ii) exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in the direction, and, where such a direction is given, this Part shall have effect accordingly.

(b) In deciding whether to give a direction under paragraph (a)(ii) the Director of the Workplace Relations Commission…shall have regard to all the relevant circumstances, including—

(i) the extent to which the respondent is, or is likely to be, aware of the circumstances in which the prohibited conduct occurred, and

(ii) the extent of any risk of prejudice to the respondent’s ability to deal adequately with the complaint.”

The complainant submits that after lodging her complaint form with the WRC on the 20/12/2022 and notification form in September 2022, she was removed as a patient from the respondent’s medical card panel, and notified of this by letter dated 13/2/2023 which stated;

“In light of your recent complaints and your ongoing dispute with our Practice, we feel that the doctor/patient relationship has broken down and we feel that you would be best served by another GP. “

The complainant sent a notification to the respondent on the 3/5/2023 by registered post and by email stating “ In light of saffron and Blues medical clinic letter to me dated 13/02/2023 signed by ……….. removing me as a patient because “of your recent complaints……. with our practice”, I believe this amounts to victimisation  under the Equal Status Act. I am pursuing a complaint with the WRC Workplace Relations Commission in relation to this victimization. For your reference the current case number under the Equal Status Act is ADJ-0004391…..”.

The issue which I am required to determine is whether the complainant has correctly satisfied the notification requirement set out in Section 21(2)(a) and if not, whether there are exceptional circumstances  and it is fair and reasonable  in the particular circumstances of this case, to exercise my discretion to disapply that provision as provided for in Section 21(3)(a)(ii) subject to a consideration of the criteria at subsection (3) (b).

At the hearing no issue was raised regarding the complainant’s notification letter dated 3/5/2023 in the context of compliance with Section 21 (2) (a).  

Section 21 (2) (a) requires a complainant to notify a respondent within 2 months of the alleged act of discrimination or the latest act prior to issuing a complaint. The complainant sent a letter by email and by registered post on the 03/05/2023 notifying the respondent of the details of her victimisation complaint however it is clear from this letter that she did this after sending her email to the WRC on the 24/4/2022. Accordingly, I find that this notification does not comply with Section 21 (2) (a) (ii) by not providing notice of the complainant’s intention to take proceedings, as she had in fact lodged the complaint and referred in the notification letter to “pursuing a complaint” with the WRC.  

I note the date of the notification letter was the 3/5/2023 which I consider to be within the two-month period required by with Section 21(2)(a), as I consider the latest act of prohibited conduct to have occurred when the complainant was removed as a patient from the respondent’s medical card panel which occurred on the date she was assigned to another GP on their medical card scheme which occurred circa the 21/3/2023.   

A discretion is conferred by Section 21 (3), on the Adjudication officer hearing the claim, to extend the time limits or in exceptional cases to disregard it altogether which effectively allows for the disapplication of subsection (2). This latter discretion is subject to subsection (3) (b). The provision requires the Adjudication Officer to “have regard to all the relevant circumstances”.  This is then expanded by reference to the matters referred in paragraphs (i) and (ii).

I note the wording of Section 21 (3) (a) refers to “On application by a complainant”, therefore the first hurdle I must consider is whether the complainant made an “application” in this regard.

In the context of considering this matter, upon reviewing the evidence, I wrote to the parties by way of letter dated 27/5/2025, addressed to the complainant and exchanged with the respondent’s representative, in the following terms; 

“On reviewing the evidence, it has come to my attention in the context of the complaint of victimisation that there appears to be an issue regarding the compliance of Section 21 (2) (a) of the Equal Status Acts 2000 (the Acts) with the notification letter which you sent to the respondent dated 3/5/2023.”

I set out the text of Section 21 (2) (a) and stated;

“As set out above Section 21 (2) (a) of the Acts requires a complainant to provide notification of the complaint within two months of the alleged prohibited conduct or the last such occurrence and provide notification of an intention to issue a complaint. It appears that in the context of the complaint of victimisation that further to your email dated 24/4/2023 which I took as the date of referral of the complaint to the WRC, it occurs to me that the notification letter was issued after the date of referral, as your letter refers to the complaint being pursued further to the Acts in the context of AD -00043190.”

I outlined Section 21 (3) (a) and stated:

“In the event of non-compliance with the notification requirement set out in Section 21 (2) (a), on application by a complainant, an Adjudication Officer may decide in the particular circumstances of a case, to exercise his/her discretion to disapply that provision as provided for in Section 21 (3) (a) (ii), subject to being satisfied that the criteria set out in Section 21 (3) (b) (i) and (ii) have been considered and taken into account. Those criteria, as set out above, include the extent of the respondent’s awareness of the circumstances of the alleged victimization, and the risk to the respondent’s ability to deal with the complaint.  

Please indicate in writing if you wish to make an application to me further to Section 21 (3) (a) (ii) to disapply the notification requirement and forward your reply in writing to the WRC within fourteen days of the date of this letter. If you wish to comment on the criteria set out at Section 21 (3) (b) (i) and (ii) please include a brief submission with your reply within the allocated timeframe. 

In the event you wish to make an application your correspondence will be exchanged with the respondent’s representative and the respondent will be provided with an opportunity to reply and provide a brief submission on the matter, specifically the criteria set out at Section 21 (3) (a) (ii) and at Section 21 (3) (b) (i) and (ii). A similar time frame will be granted to the respondent, and their submission will be exchanged with you.”

Summary of the Complainant’s submission regarding notification requirement

The complainant replied to the WRC by way of letter dated 6/6/2025, exchanged with the respondent’s representative, stating the following;

“You raised the issue of compliance with Section 21 (2) (a) of the Acts and notified me of Section 21 (3) (a) of the Acts.

I would like to make an application to you further to Section 21 (3) (a) (ii) to disapply the notification requirement.

…I believe it is in the interest of fairness and justice to allow to disapply the notification requirement as it is reasonable in this circumstance.”

Accordingly, based on the above letter, I am satisfied that the complainant has made an application to me further to Section 21 (3) (a) (ii).

Summary of the Respondent’s submission regarding notification requirement

I wrote to the respondent’s representative by way of letter dated 10/6/2025 exchanged with the complainant, stating the following;

“I note that the complainant by way of letter dated 6/6/2025, exchanged with yourself, has indicated that she wishes to make an application pursuant to Section 21 (3) (a) (ii) of the Equal Status Acts 2000-2015 to allow me to exercise my discretion to disapply the notification requirement set out at Section 21 (2) (a) subject to a consideration of the various criteria including those provided for at Section 21 (3) (b) (i) and (ii). Those criteria, as set out in my previous letter, include the extent of the respondent’s awareness of the circumstances of the alleged victimization, and the risk of prejudice to the respondent’s ability to deal adequately with the complaint.”

I outlined Section 21 (3) (a) and (b) and stated the following;

“If your client wishes to make a submission on the matter, please address the above section and outline in your submission the criteria provided for at Section 21 (3) (b) (i) and (ii), namely extent of the respondent’s awareness of the circumstances of the alleged victimization, and the risk of prejudice to the respondent’s ability to deal adequately with the complaint. 

Please forward your reply in writing to the WRC within fourteen days of the date of this letter, which correspondence will be exchanged with the complainant. “

Mr Bunbury, on behalf of the respondent, replied by way of letter dated 16/6/2025 and appears to have understood the complainant’s application to refer to an extension of time further to Section 21(3)(a). He stated the following “….. it appeared that she hadn’t complied with the statutory notification requirement under section 21(2)(a) of the Equal Status Act 2000, specifically that a complaint be filed within a 2-month period of the alleged prohibited conduct occurring.”

Mr Bunbury refers to various other matters including incidents relating to the discrimination complaint under CA-00054239-001.

In relation to the complainant’s application under Section 21(3)(a), Mr Bunbury stated “We submit that even if Section 21(3) was applied by you, the Complainant is still out of time under Section 21(2).”  He addressed the application of the various criteria provided for under the subsections by stating “We would respectfully submit that there are no special circumstances that ought to be taken into account in any determination.” Furthermore, he submitted, “We would respectfully submit that the Complainants’ complaints cannot possibly succeed in all the circumstances.”

Disapplication of Notification Requirement   

Section 21(3)(a)(ii) of the Acts provides that, on application by the complainant, and in accordance with the powers vested in me by the Director of the WRC I may: "exceptionally, where satisfied that it is fair and reasonable in the particular circumstance of the case to do so direct that subsection (2) shall not apply in relation to the complainant to the extent specified in that direction……".

As outlined this provision should only be applied exceptionally and I note in that regard the provisions of Section 21(3)(b) which outlines that in considering this matter I must take account of the extent to which the respondent is aware of the circumstances surrounding the matter and whether it is prejudiced by my granting the direction in question. Also “all the relevant circumstances” can also be considered.

Considering the first element of the test as to the extent to which the respondent is or is likely to be aware of the circumstances to which the prohibited conduct occurred, it is accepted that the complainant sent the notification letter dated 3/5/2023 by registered post and by email. This letter was also furnished by the WRC to the respondent’s representative who confirmed receipt.  

On the first hearing day on the 8/9/2023, the complainant made an application to expand my jurisdiction to include a complaint of victimisation. Dr Gavin on behalf of the respondent, was informed of the details of the complaint, I provided him with time to consider this application and informed him that this application would be considered on the subsequent hearing day. The case was scheduled for two further hearing days on the 21/11/2023 and 23/11/2023 providing ample time and opportunity to address the allegation of victimisation. All relevant correspondence was forwarded to the respondents’ solicitor. On the second hearing day Mr Bunbury consented to this application and no objection was raised regarding a lack of knowledge regarding the details of the complaint. I note that the respondents’ solicitor did not raise any issue in this regard in their submission dated 16/6/2025.

I note the evidence of Dr Gavin that the decision to remove the complainant from their medical card panel was made collectively at a partners meeting in January 2023 and the letter sent to the complainant dated 13/2/2023 referred to “…of your recent complaints and your ongoing dispute with our Practice”.  Accordingly, I find that the respondent was fully aware of the circumstances relating to this complaint.

In relation to the second limb of the test set out in Section 21 (3) (b) (ii) I must consider whether the respondent has been prejudiced by the failure to meet all the notification requirements. It is noted that on the first hearing day in the context of the complainant’s application to expand my jurisdiction to include this complaint, I provided the respondent with ample time to consider the application and the respondent’s representative confirmed he had received all the relevant documentation and consented to the application. No objection or risk of prejudice was raised regarding the notification letter or the application. 

It is noted that the respondents’ legal submissions dated 22/11/2023 set out a robust and comprehensive defence regarding all factual and legal matters relating to this complaint, with supporting documentation submitted. It is further noted that the Respondent did not respond to the complainant’s first ES1 form nor subsequent notification letter, there was no engagement from the respondent further to either form.  

It is clear to me that the respondent was aware of the complainant’s intention to pursue a complaint of victimisation as set out in her letter of the 3/5/2025, the issue being that she went further than expressing her “intention” but notified them that she had initiated a complaint. Furthermore, the respondent was provided with ample opportunity to respond to the allegations of victimisation as is evident from their submission on the matter and consent to the application to include this complaint. I further note the respondent’s representative did not raise any matter regarding prejudice in their submission dated 16/6/2025. Accordingly, I do not consider that the respondent’s ability to “deal adequately with the complaint” could beprejudiced to any extent by the technical breach of the notification requirement. 

I note that the respondent’s representative submits that there are “no special circumstances that ought to be taken into account in any determination.”  However, I consider that the particular circumstances of this case, in determining whether to disapply the notification requirement, meet the criteria of exceptional. In this regard I am mindful of the purpose of the Acts which are intended to promote equality and offer protection against various forms of discrimination. In Kim Cahill v Minister for Education and Science [2017] IESC 29 the Supreme Court noted that while the Equal Status Act 2000 was not always easy to construe it should be treated as being “remedial social legislation” aimed at leveling the playing field and, as such,” the Court is permitted to adopt a broad generous, purposive approach in order to identify and give effect to the plain intention of the Oireachtas”. Accordingly, I am of the view that itis important to bear in mind the “remedial” nature of the Acts which I consider relevant to my interpretation of Section 21 (3) (a) (ii) and in particular to the threshold of “exceptionally”.

The complainant described the significant impact upon her, as a result of her removal as patient from a medical practice where she was a longstanding patient for over 30 years, coupled with her complex medical history with multiple medical issues including mental health and physical issues, her position as a medical card holder and her failure to obtain GP acceptance which resulted in her being assigned to another GP by the HSE Medical Card Section, which I consider relevant factors in my assessment of this application.

I further note from the complainant’s evidence that she was unclear prior to this hearing whether all her medical files were transferred to her new GP and received no information from the respondent on her medical conditions upon leaving the practice. Given the lack of communication from the respondent coupled with the complainant’s underlying conditions of anxiety and autism I can appreciate the significant impact upon her in the aftermath of her removal as a patient.

The Equality Officer in Ennis v Navan O’Mahony’s Football and Hurling Club DEC-S2010-031 considered that the notification letter sent by the complainant which did not refer to his intention to take a case under the Acts, amounted to a technical breach of the Acts. He further considered that because of the letter the respondents were put on notice that he regarded the incident in question as serious and he intended to take it further and was satisfied that in these exceptional circumstances there was no prejudice to the respondent and dispensed with the notification requirement.

The Equality Officer outlined the purpose of the waiver set out in Section 21(3)(a)(ii);

“There is no doubt that if Section 21(3)(a)(ii) was not in the Acts, the complainant would not have complied with the notification requirements and I would have no jurisdiction to consider the matter any further. However, the exception provided by Section 21(3)(a)(ii), though one that should only be invoked in exceptional circumstances, is there for a reason. It is critical to note that, in considering these circumstances, account must be taken of whether and to what extent prejudice arises in relation to the respondent. However, I believe the exception is there to provide for a particular set of circumstances that, inter alia, might flow from a technical failure to meet the notification requirements of the Acts in circumstances where, but for this technical breach, an unrepresented complainant would have clearly and unambiguously met the necessary notification requirements.”  

I consider that this view accurately describes the circumstances of this case as I consider the error in the notification to be a technical breach of the Acts, the complainant was unrepresented, and I have considered the extent to which the respondent could be prejudiced by this application. 

Considering the circumstances outlined in the previous paragraphs, I am satisfied that the respondent was aware of the circumstances of the complaint in advance of the second and third hearing days and I do not see how the respondent could be prejudiced were I to invoke Section 21(3)(a)(ii).  

I am satisfied that a particular set of circumstances arise in this case, and that these circumstances, already outlined, meet the criteria of being exceptional. Furthermore, I am satisfied that having considered the criteria set out in Section 21(3)(b), that it is fair and reasonable in the particular circumstances of this case, as already outlined, to waive the notification requirement as provided for in Section 21(3)(a)(ii) of the Acts.  Therefore, I am dispensing with the requirement on the complainant to issue a notification, in accordance with the power delegated to me by the Director General of the WRC, and in accordance with Section 21(3)(a)(ii) of the Acts. Consequently, I have jurisdiction in the matter as regards Section 21 to deal with the victimisation complaint.

Substantive matter

Section 3(2)(j) contains a prohibition against victimisation in the following terms:-  

“(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 Authority, 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”).”

The purpose of this section is to provide protection against retaliatory actions to people who bring or assist in taking discrimination complaints under the Acts.

The criteria to be satisfied to establish such a complaint were set out by the Equality Tribunal in the decision of Collins -v- A Public House DEC-S2003-071 as follows:

(1) That he/she applied in good faith for redress under the Act, indicated an intention to do so or otherwise satisfied Section 3(2)(j)

(2) That he/she was subjected to specific acts of treatment by the respondent after he/she did so and

(3) That this treatment was less favourable than would have been afforded to a person in similar circumstances who had not taken the action at (1) above.

The complainant is under a burden of proof as set out in Section 38A to establish facts from which an inference of discrimination can be made that she was subjected to victimisation. It is only when a prima facie case has been established that the burden of proof shifts to the Respondent to rebut the presumption of discrimination.

The complainant asserts in her email to the WRC on the 24/4/2022 that she was the subject of victimisation on the basis that further to making a complaint under the Acts she was removed as a patient from the respondent’s medical card panel, thus removing her as a patient from their GP practice.  

The respondent denies the claim of alleged victimisation and submitted that due to a breakdown of trust in the doctor/patient relationship the complainant’s needs were better served by another GP.   

The complainant lodged her ES1 notification form on the 8/9/2022 and her complaint form on the 20/12/2022.  I accept the complainant’s evidence that she was first notified of her removal as a patient by way of letter dated 13/2/2023 from the respondent. I further accept the complainant’s evidence that after receiving this letter she contacted 5 different GP practices to enquire if she could be accepted on their respective medical card panels and was refused by each practice on the basis that they were not accepting patients who were medical card holders.

I note that she was subsequently assigned to another GP when the HSE, Medical Card Section allocated her a GP from a list of 3 GP’s who had previously refused her, in accordance with the HSE Change of Doctor procedure for medical card holders.  I note this occurred within the allocated time frame and the respondent submissions refer to the 21/3/2023 as the date the complainant was assigned to her new GP. There is no dispute regarding these facts.    

The wording of the letter dated 13/02/2023 from a named doctor on behalf of the respondent is, in my view, sufficiently clear. It refers to;

“In light of your recent complaints and your ongoing dispute with our Practice, we feel that the doctor/patient relationship has broken down and we feel that you would be best served by another GP. “

I note Dr Gavin confirmed in his cross examination that he was not aware of any other proceedings issued by the complainant against the respondent. In the absence of any other complaint or proceedings issued by the complainant, it is clear to me that the reference to  “recent complaints and your ongoing dispute” referred to the complaint issued by the complainant under the Acts. 

Dr Gavin stated in evidence that at the end of January 2023 it was discussed at partnership level regarding the ongoing situation with the complainant and stated that in the case of a patient who had “lost trust in the practice to the point of issuing legal proceedings against it,” the decision was taken to remove the complainant from their medical card panel.  Accordingly, the timeline of events supports the complainant’s assertion that the respondent reacted to her issuing a complaint by deciding to remove her from their medical card panel.

It is my view based on the evidence, including the respondent’s letter dated 13/02/2023, and the timeline of events, that the referral of the complaint form in December 2022 coupled with the notification form in September 2022, was the catalyst for the respondent to take the decision to remove the complainant from their medical card panel.   

Based on the above and evidence adduced I am satisfied on the balance of probabilities, that the complainant has established facts from which an inference of victimisation can be made out. 

In rebuttal the respondent denies that it victimised the complainant and relies upon a breakdown of the doctor/patient relationship and that the complainant would be better served by another GP practice.

Dr Gavin stated in evidence that the complainant was removed due to a lack of trust between her and the practice, and that it was not related to the fact that the complainant had issued proceedings.  I do not accept his evidence as convincing or credible, which I consider to be inconsistent with his earlier statement on the matter as noted above, and the respondent’s own letter which clearly refers to her complaint and “ongoing dispute with our Practice”.

This evidence is also inconsistent with the respondents’ legal submissions on the matter, which refer to the complainant’s decision to initiate proceedings as a reason for the respondent’s decision to remove her as a patient from their practice. It was submitted;

“The Complainant was not victimised by our client’s decision to terminate the relationship and the decision was made due to the complete breakdown of trust and confidence of the complainant with the practice and her decision to engage in a dispute / litigation process.”

It is further stated;

“Our clientfelt that as a consequence of the Claimants complete loss of trust with our client  coupled with her decision to initiate proceedings against our client it was impossible for them to continue that relationship. Furthermore, our client was concerned that if it continued to treat and interact with the Complainant that additional litigation would most likely ensue. “

Accordingly, it is clear to me that there is a direct causal link between the complainant’s decision to issue a complaint under the Acts and the respondent’s decision to remove her as a patient from their medical card panel. It appears that the respondent was concerned that further complaints or other proceedings could be issued if she remained as a patient. 

Dr Gavin described the relationship between the complainant and the respondent’s medical team during the period in question as “fractured” and “fraught”. I can appreciate given the period in question during the COVID-19 pandemic and the background as set out above, that the doctor/patient relationship was “fraught” and that some of the respondent’s medical team found this challenging.

I can also appreciate that the respondent’s medical team had a duty of care to all their patients and were concerned regarding the risk of infection from the COVID-19 virus to other patients in the practice. I accept Dr Cahill’s evidence when she described that it was a very stressful time working as a doctor during the COVID-19 pandemic and that as a GP medical practice they were doing their utmost to look after patients to the best of their abilities, in a very challenging time.

Notwithstanding the above, however, I note from the complainant’s evidence that she was not notified in advance of the decision to remove her as a patient, nor did any member of the respondent’s medical team discuss with her the breakdown in the doctor/patient relationship. I further note that no alternative options were explored with the complainant nor was any assessment of possible solutions carried out.   

There was no evidence put before me that any written procedure such as a code of conduct for patients/a complaints procedure /or procedure setting out the consequences in the event of a breakdown in the doctor/patient relationship, were followed by the respondent prior to terminating the relationship by removing her from their medical card panel.

I note that in the Circuit Court decision of CT & Others v Dunnes Stores Unlimited Company [2023] IECC 4, concerning an appeal under the Acts regarding a discrimination case taken on the grounds of race and ethnicity, O’Connor J. referred to the importance for a respondent in following an internal written procedure prior to deciding, as in that case to exclude a shopper from a store.  He stated the following;

“In some circumstances where a shopper feels they have been discriminated against it would be beneficial to have an internal objectively based complaint handling mechanism option. In doing so it can facilitate the complaint being handled confidentially and carefully.”

I note the evidence of Dr Quigney that at the time of the hearing, there were 8 or 9 doctors working in the practice, she referred to the difficulties in recruiting doctors for a GP practice, and for patients trying to obtain a GP practice. Accordingly, it is my view that the respondent was aware that it could be challenging for the complainant to be accepted by another GP practice which occurred in this case. 

It is my view that even if the respondent’s medical team were of the view that the relationship with the complainant was very challenging to the point of a breakdown, I do not consider the manner in which the respondent’s medical team approached this issue to be reasonable. The complainant should have been provided with some form of notification or warning regarding her removal from the respondent’s medical card panel. 

The complainant referred to the challenges she experienced in being accepted by another GP practice, on their medical card panel. I further note that she was not informed by the respondent that she remained a patient of the respondent’s practice until she was assigned another GP practice by the Medical Card Section.  Dr Gavin stated that the onus was on the medical card section of the HSE to advise her of this and that “out of courtesy” to the complainant the respondent sent her the letter dated 13/2/2023.

Based on the evidence and the reasons outlined above I find that the respondent has failed to rebut the presumption of discrimination. 

In this respect, I find that the complainant was subjected to specific acts of treatment by the respondent after she lodged the complaint form and ES1 form which were less favourable than would have been afforded to a patient in similar circumstances who had not taken such action.  Accordingly, I find that the legal test as set out above has been satisfied.

I note Dr Quigney’s evidence when she stated that the respondent never intended to victimise or hurt the complainant. However, the legal test as set out in Section 3(2)(j) does not require a complainant to show that the respondent had the “intention” to discriminate in this manner.  As cited by the complainant, the Labour Court in Department of Defence v Tom Barrett EDA 1017 highlighted the importance of protection against victimisation by stating;

“Protection against victimisation is a vital component in ensuring the effectiveness of anti-discrimination law. It enables those who considered themselves wronged by not being afforded equal treatment to raise complaints without fear of retribution.”

Redress

In determining the amount of redress appropriate in this case I am mindful of the special even intimate nature of the relationship between a doctor and a patient. I am cognizant that it could be challenging for the respondent’s medical team to provide services where the doctor/patient relationship is considered “fraught”. However, given the importance of that relationship to the complainant considering her complex medical history involving multiple conditions including mental health and physical issues, her position as a longstanding patient of the respondent’s practice for over 30 years, and as a medical card holder, I consider this discrimination to be at the more serious end of the scale. I note the significant impact upon the complainant, as set out above, stemming from the respondent’s decision to terminate the doctor/patient relationship. I am also mindful in my assessment of quantum, that patients such as the complainant who are on a medical card panel are by definition of limited means and are therefore in a more vulnerable position with less freedom to choose a GP practice appropriate to their needs.  

Having regard to all the circumstances and the totality of the evidence, pursuant to Section 27 and Section 25(1A) of the Equal Status Acts 2000, as amended, I find that the complainant has established a prime facie case of less favourable treatment on the victimisation ground, in terms of Section 3(2)(j) of the Acts, which the respondent has failed to rebut and I deem it appropriate to order the respondent to pay €10,000 as redress to the complainant for the effects of victimisation.

For the reasons outlined above, I declare this complaint to be not well founded.

For the reasons outlined above, pursuant to Section 27 and Section 25(1A) of the Equal Status Acts 2000 as amended,  I find that the complainant has established a prime facie case of less favourable treatment on the victimisation ground, in terms of Section 3(2)(j) of the Acts, which the respondent has failed to rebut and I deem it appropriate to order the respondent to pay €10,000 as redress to the complainant for the effects of victimisation.

Disability, mask wearing, reasonable accommodation, notification requirement, disapplication of notification requirement and victimisation.