MEDICAL DISCRIMINATION
ANDREW ALSTON *
This presentation is about doctors discriminating against patients and about discriminating generally against persons because of their medical conditions. It discusses:
- The meaning of discrimination: direct and indirect;
- Lawful and unlawful discrimination - Anti-discrimination laws in Australia;
- Advice to victims of medical discrimination;
- Ways in which doctors who refuse to treat patients may be accountable;
- Medical ethics: Good Medical Practice: A Code of Conduct for Doctors in Australia
- Distinguishing between appropriate and inappropriate discrimination: Stated reasons v. Underlying reasons
- Safeguards for medical practitioners
What is discrimination?
Discrimination is treating a person or a group of people less favourably than another person or group of people.
Discrimination may be direct or indirect.
Both direct and indirect discrimination may be prohibited.
Direct discrimination is where, in similar circumstances, a person is treated less favourably than another person. For example, if a doctor refuses to treat a person because that person has red hair but is willing to treat a person who does not have red hair the doctor is directly discriminating against the person with red hair.
Indirect discrimination is where people are disadvantaged because of conditions that adversely them but which do not adversely affect other people. For example, if the only access to a public building is by steps, there may be indirect discrimination against people in wheelchairs.
Lawful and unlawful discrimination
Some discrimination is generally regarded as acceptable; for example, giving a job to the best candidate or a prize to the best performer in an exam.
Other discrimination is not acceptable, for example, where a person is discriminated against on the ground of race, religion, sex, sexuality marital status pregnancy, age or disability. Such discrimination is usually unlawful.
Commonwealth laws
The following Commonwealth Acts apply throughout Australia:
Racial Discrimination Act 1975
Sex Discrimination Act 1984
Disability Discrimination Act 1992
Age Discrimination Act 2004
Human Rights and Equal Opportunity Commission Act 1986
These Acts are administered by the Human Rights and Equal Opportunity Commission (HRECO) which investigates complaints and brings the parties together to attempt conciliation. If issues are not then resolved, the complainant may take the case to the Federal Magistrates Court of Australia or the Federal Court of Australia.
The Disability Discrimination Act 1992 is of particular relevance to doctors. It is on the ground of disability that they are most likely to discriminate against patients. In many cases, this may be for good medical reasons, for example, because a patient is obese or elderly or a requested medical procedure is unlikely to succeed or is a risk to the life of the patient.
“Disability” is defined as follows:
"disability" , in relation to a person, means:
total or partial loss of the person’s bodily or mental functions; or
total or partial loss of a part of the body; or
the presence in the body of organisms causing disease or illness; or
the presence in the body of organisms capable of causing disease or illness; or
the malfunction, malformation or disfigurement of a part of the person’s body; or
a disorder or malfunction that results in the person learning differently from a person without the disorder or malfunction; or
a disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour;
and includes a disability that:
presently exists; or
previously existed but no longer exists; or
may exist in the future (including because of a genetic predisposition to that disability; or
is imputed to a person.
To avoid doubt, a disability that is otherwise covered by this definition includes behaviour that is a symptom or manifestation of the disability.
There are similar definitions of “disability” or “impairment” in the various State and Territory Acts that prohibit discrimination.
Prohibited discrimination
Under Commonwealth law and the laws of each State and Territory, it is generally unlawful to discriminate on a number of specified grounds in the areas of employment, membership of a club or association, education, disposing of an interest in land, provision of goods and services, accommodation, superannuation and sport.
It is in the provision of medical services that doctors are most likely to be accountable for discriminating against patients.
Each jurisdiction lists similar specified grounds. See for example section 6 of the Equal Opportunities Act 1995 (Vic.) which lists “attributes” on the basis of which discrimination is prohibited in areas of activity that are set out in Part 3 of the Act:
age;
(ab) breastfeeding;
(ac) gender identity;
(b) impairment;
(c) industrial activity;
(d) lawful sexual activity;
(e) marital status;
(ea) parental status or status as a carer;
(f) physical features;
(g) political belief or activity;
(h) pregnancy;
(i) race;
(j) religious belief or activity;
(k) sex;
(l) sexual orientation;
(m) personal association (whether as a relative or otherwise) with a person who is identified by reference to any of the above attributes.
The definition of impairment in the Equal Opportunities Act 1995 (Vic.) is similar to the definition of disability in the Disability Discrimination Act 1992 (Cwlth.)
Making a complaint – What happens next?
The following processes generally apply in every jurisdiction.
The particulars of the complaint are served on the person about whom the complaint has been made.
The Commissioner then conducts an investigation.
The Commissioner may decide that the complaint is frivolous, misconceived or lacking in substance and accordingly take no further action.
However, the Commissioner may decide that the matter could be resolved by conciliation and request a meeting with both parties.
Generally, lawyers may not attend.
The Commissioner will attempt to facilitate an agreed settlement.
Most complaints are voluntarily conciliated.
If a matter cannot be appropriately resolved by conciliation, the Commissioner may refer it to the Tribunal for hearing and determination.
The complainant will be assisted by the Commissioner’s representative.
Various orders may be made by the Tribunal, including compensation for loss or damage, requiring a person to refrain from further discrimination or performance of specified acts with a view to redressing loss or damage arising from the discrimination.
Advice to persons who have been discriminated against because of medical conditions
Obstacles to success – best evidence
It is not enough for a person who has been discriminated against to simply say that it has happened. There must be evidence of the fact. If, for example, a property owner says to a prospective tenant “I will not let the premises to you”, it may be because the tenant has HIV or AIDS but if the property owner does not also state that that is the reason, the prospective tenant will probably be unable to establish that she or he has been unlawfully discriminated against. Even if the property owner adds the words “because you have HIV” there will be a problem if she or he later denies it and there are no independent witnesses.
It helps to have a witness, preferably an independent witness.
Sometimes the discrimination will take place over a period of time. There will be a number of items of information that, when accumulated, may help to establish a case. It is important to:
On each occasion, take a note of what happened. Do it when it happens, not later. Record what happened, what was said, and the time and place when it happened.
Talk to witnesses. Get their version of events. Ask them to make a contemporaneous note of what happened.
Collect physical evidence: letters; notes; photos.
Talk to friends, colleagues, counsellors, sector workers - anyone who can help you clarify the issues in your own mind.
Consider whether, in the company of an independent person of good repute – preferably someone who will have the respect of the other party – you should discuss the matter with the other party.
Don’t delay. If you make a complaint or take other action promptly, your evidence will be stronger and you will probably be better able to present it.
Alternative strategies
If the discrimination is in respect of a person’s work, a complaint may be made to:
A union or other professional body to which that person belongs;
A member of staff who is responsible for the observance of workplace standards and ethical and professional practices;
A professional association to which the employer or supervisor may belong – many professional associations have codes of ethics, dispute resolution services and disciplinary tribunals to which employers and supervisors are accountable.
In all cases of discrimination, the following options may be considered:
Taking legal proceedings. This may be appropriate where there has been a breach of contract or, perhaps, negligence that has resulted in personal injury or financial loss. However, legal proceedings are expensive, time consuming and very stressful.
Talking with the other party. This could be done either directly or with the help of another person. Sometimes people who have discriminated against others are not aware that they have done so – particularly in the case of indirect discrimination – or they are not aware of the consequences of their actions. If they are made aware, they may be willing to make amends.
Talking to the other party with the help of a professional mediator. The process may be similar to that of making a complaint under Equal Opportunities legislation. However, as it does not start with a formal complaint, the other party may have a more positive attitude to the process. The success of mediation is dependent of the goodwill of the parties. The mediator cannot order parties to do anything. The process is similar to conciliation under Equal Opportunities legislation except that the mediator usually will not have a good understanding of the legal principles and issues in dispute and will not contribute to the substance of the agreement. Mediation is successful only if, at the end, there is a voluntary agreement of the parties that satisfactorily resolves the issues in dispute. Mediation should never be resorted to if one of the parties is not willing to participate or if there is a power imbalance between the parties.
I’m old and fat. I drink to excess. I smoke. My hobbies are boxing and mountain climbing. Treat me right!
In what circumstances are doctors entitled to refuse to treat patients?
In 2007, Matthew Peters wrote in the British Medical Journal that smokers should be denied joint replacement surgery, breast reconstructions and some other types of elective surgery because the operations were more risky and costly when performed on smokers.
In the same journal, Leonard Glantz disagreed and said:
It is shameful for doctors to be willing to treat everybody but smokers in a society that is supposed to be pluralistic and tolerant.
Why focus our cost saving concerns on smokers in the context of surgery? Do patients have a general obligation to get healthy as a condition of receiving treatment?
Most smokers who have surgery have no complications and a policy denying all smokers access to surgical procedures arbitrarily denies beneficial treatment to those who have no complications.
Ways in which doctors who refuse to treat patients may be accountable
Anti-discrimination proceedings under Commonwealth or State or Territory law. This is discussed above.
Common law: negligence proceedings – It is hard to succeed in negligence where the doctor has declined a professional relationship with a patient. However, if a doctor has agreed to perform a medical procedure and then refuses to do so for reasons that are not based on good medical practice, there may be a basis for liability.
Disciplinary proceedings: unprofessional conduct. Health professionals are subject to legislation that provides for discipline in cases of unprofessional conduct or professional misconduct.
Medical ethics: Good Medical Practice: A Code of Conduct for Doctors in Australia
More importantly, whether or not a doctor is accountable to a court, a tribunal or a medical board, it is a breach of professional ethics to improperly discriminate against a patient. It is not always easy to recognise discrimination that is improper or unprofessional. However, some, albeit vague, guidance may be found in the various codes of medical ethics. The most recent code is Good Medical Practice: A Code of Conduct for Doctors in Australia which was developed by the Australian Medical Council on behalf of all State and Territory medical boards and introduced on the 11th of August 2009.
There are many provisions in the code that may be relevant to issues of discrimination. These include the general statements under heading 1.4 Professional values and qualities of doctors:
While individual doctors have their own personal beliefs and values, there are certain professional values on which all doctors are expected to base their practice.
Doctors have a duty to make the care of patients their first concern and to practise medicine safely and effectively. They must be ethical and trustworthy.
Patients trust their doctors because they believe that, in addition to being competent, their doctor will not take advantage of them and will display qualities such as integrity, truthfulness, dependability and compassion. Patients also rely on their doctors to protect their confidentiality.
Doctors have a responsibility to protect and promote the health of individuals and the community.
Good medical practice is patient-centred. It involves doctors understanding that each patient is unique, and working in partnership with their patients, adapting what they do to address the needs and reasonable expectations of each patient. This includes cultural awareness: being aware of their own culture and beliefs and respectful of the beliefs and cultures of others, recognising that these cultural differences may impact on the doctor–patient relationship and on the delivery of health services.
Good communication underpins every aspect of good medical practice.
Professionalism embodies all the qualities described here, and includes self-awareness and self-reflection. Doctors are expected to reflect regularly on whether they are practising effectively, on what is happening in their relationships with patients and colleagues, and on their own health and wellbeing. They have a duty to keep their skills and knowledge up to date, refine and develop their clinical judgment as they gain experience, and contribute to their profession.
More specific provisions on discrimination are set out under heading 2.4 Decisions about access to medical care:
Your decisions about patients’ access to medical care need to be free from bias and discrimination. Good medical practice involves:
2.4.1 Treating your patients with respect at all times.
2.4.2 Not prejudicing your patient’s care because you believe that a patient’s behaviour has contributed to their condition.
2.4.3 Upholding your duty to your patient and not discriminating on medically irrelevant grounds, including race, religion, sex, disability or other grounds, as described in antidiscrimination legislation.
2.4.4 Giving priority to investigating and treating patients on the basis of clinical need and effectiveness of the proposed investigations or treatment.
2.4.5 Keeping yourself and your staff safe when caring for patients. If a patient poses a risk to your health and safety or that of your staff, take action to protect against that risk. Such a patient should not be denied care, if reasonable steps can be taken to keep you and your staff safe.
2.4.6 Being aware of your right to not provide or directly participate in treatments to which you conscientiously object, informing your patients and, if relevant, colleagues, of your objection, and not using your objection to impede access to treatments that are legal.
2.4.7 Not allowing your moral or religious views to deny patients access to medical care, recognising that you are free to decline to personally provide or participate in that care.
Difficulties in distinguishing between appropriate and inappropriate discrimination: Stated reasons v. underlying reasons
When a doctor refuses to treat a patient, there will usually be a stated reason and one or more underlying reasons. It is the underlying reasons and not the stated reasons that identify inappropriate conduct.
Underlying reasons may also be stated reasons. If an underlying reason is in the nature of an explanation for a stated reason, the two should be stated together, for example: “Because of your excess weight, the medical procedure is unlikely to be of any medical benefit to you.”
Stated reasons may be as follows:
Patient is obese;
Patient is a smoker;
Patient is old;
Patient is an alcoholic;
Patient’s life style is inappropriate:
the boxing mountain climber;
Patient has AIDS;
Patient is not married;
Patient is pregnant;
Patient is demanding treatment that has no therapeutic benefit: cosmetic surgery; sex change operation …
Another doctor is better able to perform the treatment or procedure.
Underlying reasons may be as follows:
Reduced chance of full recovery;
Risk to patient;
Procedure is of no medical benefit;
Economy measure to ration care;
Risk to medical team;
Penalty for bad conduct;
Irrational discrimination: religious belief; personal dislike of patient etc.
The first three underlying reasons – reduced chance of recovery, risk to patient and procedure of no medical benefit - are all appropriate reasons for discriminating against a patient and they may justify stated reasons such as the patient is obese, a smoker, old or an alcoholic or that another doctor is better able to perform the treatment or procedure.
The fourth reason is less appropriate. In an ideal world, if medical treatment is available and it can benefit a patient, she or he should not be deprived of that treatment. But if resources are limited so that it is only possible to treat a certain number of patients, it may be considered necessary to refuse to treat patients who would place an excessive demand on the limited resources or who least need the treatment. There is, however, a fine line between appropriate allocation of resources and political and administrative convenience.
The fifth reason – risk to the medical team - may possibly be invoked in cases where the patient is violent or has an infectious disease or a disease such as HIV/Aids that could be transmitted to a member of the medical team if there is an accident. The best advice in these cases comes from paragraph 2.4.5 of Good Medical Practice: A Code of Conduct for Doctors in Australia which instructs doctors to keep safe and to keep staff safe when caring for patients. It continues:
If a patient poses a risk to your health and safety or that of your staff, take action to protect against that risk. Such a patient should not be denied care, if reasonable steps can be taken to keep you and your staff safe.
Subject to the rider that a doctor who, because of religious convictions may be entitled to refer a patient to another doctor who is able to provide the requested treatment, the sixth and seventh reasons – penalty for bad conduct and irrational discrimination – cannot be justified in any circumstances.
Important safeguards for medical practitioners
Take contemporaneous notes. Accurately record all conversations: why you refused to treat the patient; how you explained this to the patient and other interested persons. These notes will be useful evidence of what you did and why you did it. They will also provide guidance for others who have to follow up on your work. Notes written some time after the event are of little evidentiary value.
Seek advice from someone you trust who has appropriate expertise and authority, preferably before you commit to treating or refusing to treat a patient. Talking with someone else may help you make the right decision. It may also have the consequence of responsibility for the decision being shared or being taken from you by someone else.
Talk to your client/patient. She or he, not you, should make decisions. But your client/patient may need your help in understanding what has to be done and in having the courage to do it.
* Andrew Alston, Barrister-at-Law, Associate Professor, Flinders University, Adelaide.
Many of the definitions provided here are not taken from the legislation. For more precise and complete definitions, please check the interpretation sections of the State and Federal Equal Opportunities Acts.
Disability Discrimination Act 1992 (Cth) s. 4
This section is not just about discrimination by doctors but also more generally about discrimination against persons because of their medical conditions in the areas of employment, membership of a club or association, education, disposing of an interest in land, provision of goods and services, accommodation, superannuation and sport.
See also Alston HIV/AIDS and the law in South Australia: a resource for workers Relationships Australia, 2006.
See, for example, the Health Professions Registration Act 2005 (Vic).
http://goodmedicalpractice.org.au/code/
Good Medical Practice: A Code of Conduct for Doctors in Australia, paragraph 2.4.6
Good Medical Practice: A Code of Conduct for Doctors in Australia, paragraphs 2.4.2 and 2.4.3
Copyright 2009. Greek Legal and Medical Conference