Murray Estate v. Rouge Valley Health System, 2016 HRTO 1210

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

The Estate of Christa Murray Applicant

-and-

Rouge Valley Health System, Norma Baker, and Joseph Ricci Respondents

INTERIM DECISION

Adjudicator: Bruce Best Date: September 14, 2016 Citation: 2016 HRTO 1210 Indexed as: Murray Estate v. Rouge Valley Health System

APPEARANCES

The Estate of Christa Murray, Applicant Emily Hill, Counsel

Rouge Valley Health System, Respondent Naomi Calla, Counsel

Norma Baker and Joseph Ricci, Respondents Mira Novek, Counsel

Introduction

1This Application alleges discrimination with respect to goods, services and facilities because of race, colour, ethnic origin and disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2By Case Assessment Direction (“CAD”), the Tribunal directed that a summary hearing be held to address whether the Application should be dismissed on the basis that there is no reasonable prospect that it will succeed. The Application was heard by conference call on March 29, 2016.

3I find that the allegations against Dr. Baker and Dr. Ricci, and the allegations against the respondent Rouge Valley Health System respecting discrimination on the basis of her mental health disability are allegations with respect to clinical decisions, and as such the allegations against them have no reasonable prospect of success.

4I also find that the allegations of discrimination on the basis of her physical disability and the allegation respecting the hospital’s policy limiting the number of visitors, though not necessarily clinical decisions, also have no reasonable prospect of success.

5However, I cannot find that the Application has no reasonable prospect of success with respect to the allegation that the decision to limit Ms. Murray’s access to hand sanitizer was, in part, based on stereotypes about alcoholism and Aboriginal people. As such, the Application will proceed to a hearing on the merits on this issue alone.

Background

6This Application was brought by the estate of Christa Murray, through her sister, Shallen Murray, who is the estate trustee (“the estate”). Christa Murray (“Ms. Murray”) was a patient at two hospitals operated by the respondent Rouge Valley Health System (“Rouge Valley”), Rouge Valley Ajax & Pickering (“RV Ajax”) and Rouge Valley Centenary (“RV Centenary”), where she was at times treated by the respondent physicians, Dr. Norma Baker and Dr. Joseph Ricci. The Application alleges that the treatment she received while at the hospital was discriminatory on the basis of her race, colour, ethnic origin and disability.

7Ms. Murray was an Aboriginal person and member of the Dene nation. She had been diagnosed with “schizoaffective disorder with Cluster B personality traits,” and lived at Ontario Shores Centre for Mental Health Services (“Ontario Shores”), a hospital which provides specialized care to individuals living with mental illness. She was also dependent on a wheelchair as a result of a spinal cord injury.

8Due to a serious heart condition, heart surgery was planned for September 2013 at Toronto General Hospital (“Toronto General”), though at the time of events the actual surgery date had not been scheduled. After she experienced symptoms related to her heart condition, Ontario Shores staff brought her to RV Ajax where she was admitted on August 10, 2013. She was subsequently transferred to RV Centenary on August 22, 2013, then to Toronto General on August 27, 2013. She died at Toronto General on August 31, 2013.

9The Application alleges that during the time she spent at Rouge Valley, Ms. Murray was subject to discrimination on the basis of both her physical and mental health disabilities, and that she was further subject to discrimination based on negative stereotypes of Aboriginal people and alcohol.

Allegations

10The allegations in this case relate to several specific incidents that occurred while Ms. Murray was a patient at Rouge Valley. I will address each of the allegations in turn, based on the specific grounds raised.

11Copies of Ms. Murray’s complete medical records were submitted by Rouge Valley, and were referred to by all the parties. The estate did not challenge the authenticity of the records; however, it questioned whether the contents of the records were accurate; for example, the records made reference on a number of occasions that Ms. Murray had a history of substance abuse, which was disputed. The estate noted that if the matter proceeded to a hearing on the merits, a number of the notations in the medical record would be challenged. The estate also took the position that, even if the records indicating a history of substance abuse were accurate, there was no indication that it was a current issue that should have impacted her treatment while at Rouge Valley.

Law

12The parties are generally in agreement with the legal basis for the issues in the Application. The main issue in dispute is whether in fact the decisions made were improperly influenced by negative stereotypes.

Clinical Decisions

13The Tribunal has generally adopted the analysis in the British Columbia Human Rights Tribunal decision Egan v. Kennedy, 2006 BCHRT 15 at paras. 23-24, that treatment decisions made by physicians based on their professional medical judgment, taking into account factors they professionally consider to be relevant, will not be considered a breach of the Code based on disability, even if it turns out that the decision was based on inaccurate information or an incorrect diagnosis. See Moshi v. Ontario (Ministry of Community Safety and Correctional Services), 2014 HRTO 1044 at para. 43 (“Moshi”), Wilson v. Dixie Road Medical Association, 2011 HRTO 1607, TenBruggencate v. Elgin (County), 2010 HRTO 1467, Smith v. Lakeridge Health, 2010 HRTO 2079, Bruce v. London Health Sciences Centre, 2014 HRTO 106, and Speelman v. Hotel Dieu Hospital, 2014 HRTO 204. The same approach has been extended to claims respecting the clinical judgment and professional competencies of other health care professionals such as nurses. See Barber v. Markham Stouffville Hospital, 2015 HRTO 1257 at para. 22.

14Most of the above cases involved allegations of discrimination on the basis of disability. Those decisions are, however, careful to note that clinical judgment does not insulate a health care provider from a claim of discrimination on a Code ground which had no relevance to the treatment.

No reasonable prospect of success

15Even where an allegation is not related to the clinical treatment, an allegation can still be dismissed at a summary hearing if it has no reasonable prospect of success. In Smith, for example, the applicant alleged that he received differential treatment at a hospital not because of his disability, but because of his age. That matter was decided on the basis that there was no reasonable prospect of success that the applicant could demonstrate that his age was a factor in the treatment he received.

16The test of no reasonable prospect of success is determined by assuming the applicant’s version of events is true unless there is some clear evidence to the contrary or the evidence is not disputed by the applicant.

17However, and significantly, accepting the facts alleged by the applicant does not include accepting the applicant’s assumptions about why events happened as they did. The question that the Tribunal must decide at a summary hearing is whether there is likely to be any evidence, or any evidence that may be reasonably available to the applicant, to connect the unfair treatment allegedly experienced by the applicant with the Code’s protections.

Issues and Analysis

Physical Disability

18The applicant raises several allegations that staff at RV Ajax were unhelpful with respect to Ms. Murray’s physical limitations.

19The Tribunal has permitted allegations respecting the treatment of a person in their hospital due to their physical disability to proceed to a hearing on the merits. In Charness v. North York General Hospital, 2011 HRTO 2156 (“Charness”), the applicant was in hospital recovering from a broken hip, during which time she was dependent on a wheelchair to get around. She alleged that nurses forcibly moved her by pushing her wheelchair against her will when she refused their requests to move. At a summary hearing, the Tribunal permitted the application to proceed on the basis that the allegations suggested that in so doing, the hospital staff may have discounted the applicant’s assessment of her own needs with respect to her comfort and/or safety, noting that the Tribunal had in other cases accepted expert testimony that there could be a tendency to discount the judgment of a person with a disability. See Charness at paras. 12-14.

20However, in the present case, the allegations with respect to Ms. Murray being discriminated against because of her physical disability are, at best, that the staff either did not offer to help or were less helpful than they could have been. The estate is not taking the position that the conduct of staff was due to any other Code ground. I find that these allegations are a complaint about the quality of care Ms. Murray received. Questioning the standard of care received is not a Code issue absent some other indicator of discrimination. See Barber, above, at para. 22. For this reason, the allegations that Ms. Murray was discriminated against based on her physical disability is dismissed as having no reasonable prospect of success.

Transfer to RV Centenary

21The applicant agrees that Ms. Murray had both physical and mental health issues, and that both should have been part of any clinical decisions. The applicant also acknowledges that Ms. Murray had refused treatment at RV Ajax; in particular she had removed and/or refused to permit hospital staff to insert an IV. However, the applicant argues that Ms. Murray was competent to refuse treatment, and that any difficulties at RV Ajax were not due to her mental illness.

22Shallen Murray requested that Ms. Murray be transferred to Toronto General from RV Ajax because of concerns that her heart condition was getting worse. However, instead Ms. Murray was transferred to the psychiatric floor of RV Centenary. The applicant argues that Rouge Valley and Dr. Baker made the decision to move her to RV Centenary based on stereotypes and assumptions respecting individuals with mental health disabilities, focussing on her mental health issues rather than her physical health needs related to her heart condition.

23Rouge Valley agrees that it suggested that Ms. Murray’s medical needs could be better met at RV Centenary, in part due to difficulties the nursing staff at RV Ajax were having with her refusing treatment. It maintains, however, that the proposed transfer was an appropriate clinical decision, and was not based on any arbitrary stereotypes.

24Dr. Baker contends that she in fact did make several attempts to facilitate Ms. Murray’s transfer to Toronto General as requested, but claims she was told Ms. Murray did not meet the criteria for transfer at that time. Dr. Baker claims that when management of Rouge Valley proposed that Ms. Murray be transferred to RV Centenary, she raised this as an alternative with Ms. Murray and her family, on the basis that it was a transfer which could meet all of her current needs, with the added advantage of being closer to her family than if she remained at RV Ajax. Only when Ms. Murray and Shallen Murray agreed did Dr. Baker effect the transfer. Dr. Baker’s position was supported by the medical records filed, where her efforts to transfer Ms. Murray to Toronto General were documented.

25I find that the estate has not been able to point to any evidence which would support the finding that the proposal of either Rouge Valley or Dr. Baker to move Ms. Murray to RV Centenary was anything other than a clinical decision based on the information available to the respondents at the time. Though there is a dispute as to whether or to what extent she was exhibiting behaviour related to her schizoaffective disorder, Ms. Murray was, when she was admitted to RV Ajax, a current resident of a mental health facility, Ontario Shores. The estate agrees that her mental health disabilities were an appropriate factor to take into account in determining treatment. It is also not disputed that the records showed Ms. Murray had certain disagreements with the medical professionals about the treatment she was receiving at RV Ajax. Whether or not her refusal of treatment was related to her mental health, the decision to propose the transfer was nonetheless a clinical decision based on the information available, and the respondents’ medical judgment.

26The allegation that Dr. Baker did not pursue the transfer to Toronto General because she was overly focussed on Ms. Murray’s mental health disabilities has, in my view, no reasonable prospect of success. The estate is not proposing any evidence that would substantiate this claim other than the fact that Ms. Murray was not actually transferred to Toronto General. The estate also does not dispute the medical records which show that Dr. Baker did, in fact, contact Toronto General, but the transfer was refused.

27It is also relevant that Dr. Baker consulted with Ms. Murray and her family on the proposed transfer to RV Centenary, and according to the Application, they in fact agreed that RV Centenary had several advantages over RV Ajax. Shallen Murray indicated in the Application that she agreed to the transfer because she thought Ms. Murray would receive better care at RV Centenary. In addition, RV Centenary was closer to Ms. Murray’s family, and would make it easier for them to visit.

28For the above reasons, the allegation that the proposal to transfer Ms. Murray to RV Centenary was discriminatory is dismissed as having no reasonable prospect of success. As this is the only allegation against Dr. Baker, the Application is also dismissed against her, and she is removed as a respondent.

Hand sanitizer

29The estate alleges that when Ms. Murray was transferred to RV Centenary a sign was placed above her bed which stated “Do not leave hand sanitizer near patient”, and that a “post-it” note was placed in her medical file similarly indicating she was not to be given hand sanitizer.

30Rouge Valley disputes that there was any sign was placed above her bed, but agree that there were notations in her medical file. Rouge Valley takes the position, however, that this was a clinical decision based on the history of alcohol abuse in her medical records, and on observations of her behaviour while in the hospital, including a claim by a nurse who says she saw her sniffing hand sanitizer. Rouge Valley referred to the July 2013 discharge summary from Toronto General which, under the heading “Cardiac Risk Factors” included “previous excessive alcohol use”. In the external transfer documents from Ontario Shores, the records indicated a history of substance abuse.

31Though recognizing that there were indications in the medical record of a past history of substance abuse, and also acknowledging that the Ontario Shores external transfer appeared to indicate that this history was “Active”, the applicant noted that there were other indications and other records from RV Centenary itself which would question whether there was any current concern over alcohol that would justify the actions taken by the hospital. The applicant argues that the references to her past history of substance abuse were “elevated” to her being an alcoholic, based not on medical judgment but rather based on stereotypical assumptions. The applicant submitted that this would not have happened to a non-Aboriginal person with similar information in their medical records.

32The applicant notes that the courts have recognized that there is a pervasive and negative stereotype that Aboriginal people are more likely to abuse alcohol. In McKay v. Toronto Police Services Board, 2011 HRTO 499, the Tribunal heard expert evidence which noted, at para. 104, that “mainstream society holds deeply entrenched stereotypes and prejudices about Aboriginal people as drunks…” In accepting this evidence, the Tribunal noted, at para 129, that in R. v. Williams, 1998 CanLII 782 (SCC), also cited by the estate, “[t]he Court emphasized that these prejudices and stereotypes have a powerful and pervasive impact on the psyche of mainstream society.” The estate further cited an article from the Canadian Journal of Nursing Research titled “Discourses Influencing Nurses’ Perceptions of First Nations Patients”, CJNR 2009, Vol. 14 No. 1, 166-191, in support of the position that such stereotypes may also exist in clinical settings.

33The fact that such stereotypes or prejudices exist in Canadian society does not, of course, mean that they played any role in the decisions made or the treatment Ms. Murray received at Rouge Valley. However, in my view the question of whether they did, and the question of whether the decisions made with respect to Ms. Murray and access to hand sanitizer were based solely on clinical judgment and not any improper stereotypical assumptions, is an issue that requires the hearing of evidence. As such, this allegation may proceed to a hearing on the merits.

Toxicology Testing

34The next allegation is primarily with respect to what actions were taken on August 27, 2013, when Ms. Murray’s condition deteriorated considerably. In the Application, the allegation was that the only medical investigation into the cause of her deterioration was the toxicology testing ordered by Dr. Ricci to determine if her condition was due to ingestion of drugs or alcohol. However, the respondents contend, and the medical records indicate, that numerous other tests had already been conducted earlier in the day, both by Dr. Ricci and by other physicians, which had ruled out a number of other causes, and that the toxicology testing was ordered because the other tests had not determined why she was so ill.

35At the hearing, the estate acknowledged that the medical records showed that there had in fact been extensive other testing done prior to the toxicology testing. It argued that the discharge summary nonetheless appeared to focus on whether she had ingested hand sanitizer, and that this was further evidence that her treatment was incorrectly focussed on her perceived alcoholism.

36As noted in Moshi at para. 43, the Tribunal has no jurisdiction to review whether clinical decisions based on the information available were or were not medically appropriate. In my view, given the acknowledgment of the records and the fact that numerous other tests had already been conducted, I find that there is no reasonable prospect of success that the decision to also order a toxicology test in the circumstances may be found to be discriminatory.

37As this is the only allegation against Dr. Ricci, the Application is also dismissed against him, and he is removed as a respondent.

Visitor Policy

38On August 27, 2013, after Ms. Murray’s condition began to deteriorate, Shallen Murray contacted her other sisters and asked them to come to the hospital. They came with other family members, and there were 7 people in the room in the early afternoon. They were told by a nurse that there was a 2-visitor limit for non-critical care patients, and as such everyone except Shallen Murray and one other sister left.

39The applicant argues that the 2-visitor maximum policy has a disproportionate impact on Aboriginal patients because it reflects a Western notion of “family” that is different than how Aboriginal communities understand family and address healing. She argues that the policy fails to take into account cultural differences.

40Rouge Valley takes the position that the 2-visitor policy is also a medical care decision, and as such is not subject to scrutiny by the Tribunal. It also notes that there is no allegation that an accommodation was sought by the family to account for these cultural differences.

41An applicant has an obligation to raise a Code issue in order to trigger a duty to accommodate. See Rhijnsburger v. Wal-Mart Canada Corp., 2013 HRTO 1109 at para. 20. In the absence of any indication that a request was made to permit more than 2 visitors as a cultural accommodation, I find that the allegations with respect to the visitor policy have no reasonable prospect of success.

42I make no determination as to whether the 2-visitor policy is in fact a clinical decision respecting treatment, as Rouge Valley maintains, nor am I making any determination as to whether it would have been appropriate, had a request been made, to waive the policy as a cultural accommodation.

Inability of Ms. Murray to Testify

43The respondents noted, relying on Bruce, that as Ms. Murray was not able to testify, the estate would be unable to produce sufficient evidence to make out its case.

44However, in Bruce, the Tribunal found that a number of the central issues in dispute involved interactions between the hospital and the patient where no one else was present. As the patient had died, the only testimony that would be available would be that of the hospital’s witnesses. The Tribunal found that this lack of evidence was a factor in support of finding that that application had no reasonable prospect of success.

45However, in the present case, Shallen Murray and other family members were closely involved in Ms. Murray’s care, and were parties to relevant discussions on a number of occasions. Though the absence of Ms. Murray’s testimony will make it more difficult for the estate to disprove certain allegations by Rouge Valley, I cannot conclude that the absence of her testimony means the Application has no reasonable prospect of success.

Order

46For the above reasons, the Application is dismissed against Dr. Baker and Dr. Ricci. The allegations against Rouge Valley with respect to her physical disability while at RV Ajax, the transfer to RV Centenary, and the allegation with respect to the visitor policy are also dismissed.

47The Application may proceed against Rouge Valley with respect to the issue of whether Christa Murray was presumed to have a disability because of her race, colour and ethnic origin.

48I am not seized.