Discrimination arising from disability

[heisenberg]

Dear Sirs,

I am a bit unclear on the above principle relating to section 15 of the Equality Act 2010.

In short, I saw a hospital consultant over many years in respect to a health condition amounting to a disability. I raised a complaint regarding administration issues (failures in communication from the consultant) and the overall management of my health condition.

The consultant subsequently refused to see me and ended the patient/consultant relationship on the basis that I raised a complaint against him (contrary to General Medical Council guidance).

I have been informed, rightly or wrongly, that section 15 is not called into question as the reason for the unfavourable treatment was due to the fact that I raised a complaint and therefore the ill-treatment in question was not deemed to be connected to a disability.

This is somewhat confusing as:

• without the disability I would not have raised the complaint.
• this is not too dissimilar to and employee being fired for a period of absence which relates to a disability. This is prohibited and the matter turns to the employer's justification.

Can someone please clear this one up?

Any case law would also be appreciated as most of the case law I have found relates to Employment Appeal Tribunal decisions which are obviously not in a goods and services context.

I understand it may be early days for this statute and hopefully the Supreme Court won't make a mess of it (again as with London Borough of Lewisham v Malcolm).

Many thanks in advance.

[stevemLS]

Re: Discrimination arising from disability

You can't get proper advice if you are too coy about the circumstances.

A medic is able to end a relationship if they feel that the dr/pt relationship has broken down, they should arrange a transfer of care.

What is the health condition.

Whether it is a disability turns on the facts.

It is not unlawful to "fire" an employee due to a disability, if they are incapable of fulfilling the role then they can be dismissed on capability grounds.

Hope that helps a little.

[heisenberg]

Re: Discrimination arising from disability

You can't get proper advice if you are too coy about the circumstances.

A medic is able to end a relationship if they feel that the dr/pt relationship has broken down, they should arrange a transfer of care.

What is the health condition.

Whether it is a disability turns on the facts.

It is not unlawful to "fire" an employee due to a disability, if they are incapable of fulfilling the role then they can be dismissed on capability grounds.

Hope that helps a little.

Hi StevemLS,

Many thanks for the post again.

Indeed. I will try be less shy about the facts then:

To further clarify, I suffer from depression. This causes negative thinking, increased intolerance, clouded judgement and cognitive impairment. However I was not seeing the consultant about this I was seeing the consultant about my chronic facial pain and he was therefore a Maxillofacial Surgeon.

The facial pain and the depression amount to a disability.

Discrimination occurs if a person is treated less favourably because of their protected characteristic.

If the less favourable treatment is because of something else then the fact that the person has a protected characteristic is irrelevant.

So in terms of discrimination if the Maxillofacial Surgeon refused to treat me because he believed I have made a 'malicious' complaint against him he is not unlawfully discriminating, if he would have done the same if I had not been disabled (though see the comments that follow).

It is the complaint not the disability that caused his action.

However, if one goes one step back (See Land Registry v Houghton) the 'malicious' complaint could be directly connected to my depression as a consequence of negative thinking, increased intolerance, clouded judgement and cognitive impairment.

Does this help?

[judgemental24]

Re: Discrimination arising from disability

Has Occupational health or any health care professionals stated that they consider your condition falls under the Equality Act as a disability in writing??

[heisenberg]

Re: Discrimination arising from disability

Hi StevemLS,

I have been found to be disabled by an Employment Tribunal on more than one occasion subsequent to a pre-hearing review.

Hope this helps.

Regards

Jason

[judgemental24]

Re: Discrimination arising from disability

If the surgeon refused to treat you then under a duty of care you would have been referred to another surgeon if incompatibility was a major factor in the relationship

A doctor patient relationship is classed as a special relationship under a duty of care and the law

An extreme example would be a doctor prosecuted for manslaghter through Gross negligence if a patient died on his watch. Giving penicillin to a patient who is allergic and not checking patient notes for allergies etc

Were you transfered to a different surgeon??

[heisenberg]

Re: Discrimination arising from disability

If the surgeon refused to treat you then under a duty of care you would have been referred to another surgeon if incompatibility was a major factor in the relationship

A doctor patient relationship is classed as a special relationship under a duty of care and the law

An extreme example would be a doctor prosecuted for manslaghter through Gross negligence if a patient died on his watch. Giving penicillin to a patient who is allergic and not checking patient notes for allergies etc

Were you transfered to a different surgeon??

Hi judgemental24,

Many thanks for the post.

I don't believe incompatibility was the issue. The issue was the complaint. The surgeon was very clear about this and there is a voice recording of the complaint meeting or local resolution meeting.

However, yes, I was transferred to a different surgeon though this happened prior to the meeting. I asked for a second opinion on my facial pain condition which is reasonable. It subsequently appears that the surgeon in question (the one who refused to see me) missed a noteworthy lesion found in my jaw as a result of subsequent scans (which the surgeon in question did not consider helpful) etc. but this may be the fault of the radiologist (I asked for a second radiology opinion and he refused to refer me).

So, I am seeing a different surgeon at a different hospital which is extremely difficult for me to get to (my car broke down a few years ago and due to my poor finances, attributable to being ill, I could not afford another car).

Regards

Jason

[stevemLS]

Re: Discrimination arising from disability

I work in NHS, I simply camt see a cause go action here

[heisenberg]

Re: Discrimination arising from disability

I work in NHS, I simply cant see a cause go action here

How so?

[heisenberg]

Re: Discrimination arising from disability

stevemLS, you've not gone all cold on me? :tinysmile_twink_t2:

[wales01man]

Re: Discrimination arising from disability

Can I respectfully ask what result would you like from this Money apology orvwhat ?

[heisenberg]

Re: Discrimination arising from disability

Can I respectfully ask what result would you like from this Money apology orvwhat ?

Money was not my initial aim. I did not consider taking this matter to a County Court (and now may be out of time unless the reasonable adjustments argument is considered an ongoing duty).

I did however raise it with the Health Service Ombudsman (who are not the best people to bring discrimination complaints to I've now found out). I've also brought this the attention of the GMC (who have completely and dismally overlooked this in their initial response to me on only focused on trivial issues - hence I am no big fan of the GMC at the moment) and the GDC who will no doubt try to follow the GMC's findings as with the Health Service Ombudsman.

My main gripe is that is hugely unethical behaviour and arguably infringes my human rights (if discrimination is contrary to human rights). What is more sickening is that this consultant backtracked on certain things he said (he claimed he never said certain things after the event which he clearly did say) and then used that against me together with the fact that I raised a complaint against him as a very unethical defence and justification for not seeing me again. Rather sickening really but these consultant's only protect their own best interests.

[wales01man]

Re: Discrimination arising from disability

They all protect their own you have found an uphill battle even getting a simple apology from Professionals is hard sorry to say its the world we live in now.

[heisenberg]

Re: Discrimination arising from disability

They all protect their own you have found an uphill battle even getting a simple apology from professionals is hard sorry to say its the world we live in now.

Totally agreed.