Broker v. SCOPE Clinic, 2016 HRTO 247

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Adam Broker

Applicant

-and-

SCOPE Clinic

Respondent

DECISION

Adjudicator: Keith Brennenstuhl

Date: February 25, 2016

Citation: 2016 HRTO 247

Indexed as: Broker v. SCOPE Clinic

APPEARANCES

Adam Broker, Applicant

Self-represented

SCOPE Clinic, Respondent

Anne Posno, Counsel

Constanza Pauchulo, Counsel

Introduction

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

2The applicant has been HIV positive for 19 years. His viral load is undetectable. By request dated January 23, 2014, the applicant’s HIV specialist completed a referral for the applicant to undergo a screening colonoscopy.

3Dr. Tan is a duly licensed physician with a specialty in Gastroenterology. He regularly performs endoscopy procedures at the Brampton Civic Hospital (the “Hospital”). He is on staff at the SCOPE Clinic (“SCOPE”).

4Dr. Tan is a former respondent to the Application. During the course of the hearing the applicant withdrew the Application as against him.

5SCOPE is an out-of-hospital low risk health facility. SCOPE is not an in-patient hospital and does not provide hospital-standard resuscitative, anesthetic or intensive care support or in-patient services. It is not equipped to respond to serious complications. Overnight admission is not permitted.

6SCOPE offers a streamlined out-patient service incorporating the initial consultation, the endoscopic procedure and recovery, all during the same visit.

7Patients who are at low risk are directed to a SCOPE gastroenterologist. All SCOPE gastroenterologists have privileges at a local hospital to treat patients at the hospital endoscopy unit.

8On intake, SCOPE screens all patients to ensure they are medically appropriate for an out-patient procedure at the clinic. Pursuant to SCOPE’s screening criteria, patients with the following histories are automatically directed to a SCOPE gastroenterologist at the local hospital endoscopy unit, regardless of the specifics of their personal medical history: patients over 75; patients with a BMI exceeding 45; heart/lung condition; stroke/TIA; Colitis/Crohn’s; Hepatitis C; Hepatitis B/HIV; kidney condition (except stones); diabetes requiring insulin; malignant hyperthermia in family; severe reaction to anesthetics; sleep apnea; bleeding disorders; or, on any blood thinners.

9In late October 2014, the applicant contacted SCOPE to schedule a colonoscopy previously recommended by his HIV specialist. After receiving the faxed referral request, on October 29, 2014, the applicant was contacted by telephone by SCOPE staff to complete the screening questionnaire. The applicant’s medical history was recorded including his HIV status and medications and current symptoms.

10Due to applicant’s medical history of HIV, the respondent directed the applicant to Dr. Tan who was scheduled to perform endoscopy procedures at the Hospital on November 24, 2014. His office called the applicant directly to book the colonoscopy.

11The applicant subsequently contacted SCOPE to clarify the reason he was directed to the Hospital for his colonoscopy instead of the SCOPE premises. The SCOPE manager explained that patients with HIV are directed to a local hospital endoscopy unit.

12The applicant subsequently cancelled his colonoscopy appointment at the Hospital.

The Applicant’s position

13The applicant testified that he did not want to be treated at a hospital. In his written submissions he stated:

I wasn’t seeking treatment by Dr. Tan. I wanted the much more relaxed experience in a private clinic scenario that I had seen publicized more than once on Breakfast Television (who extolled the virtues of having this embarrassing and uncomfortable procedure done at the SCOPE Clinic with more than one Television personality) rather than at a public hospital setting for my colonoscopy. After years of hospital procedures I felt having just ONE done in a different setting would be more comfortable for a change.

14The applicant claims that an HIV positive individual whose viral load has been undetectable for 19 years, is not a high risk candidate for a colonoscopy. He claims that as long as universal precautions are being used, there was no reason for not treating him at the clinic. According to the applicant, SCOPE did not have sufficient medical history on him to perform a risk assessment. Its refusal to treat him at the clinic was based solely on the fact that he has HIV.

Position of the respondent

15The respondent maintains that the applicant’s medical history of HIV raised a potential risk of medical complication to the applicant outside the capacity of SCOPE, a low risk clinic. The applicant’s colonoscopy was appropriately scheduled at the hospital. It is not the role of the Tribunal to interfere with a medical risk assessment based on a patient’s medical history.

analysis and decision

16Every person has a right to equal treatment with respect to services, goods and facilities without discrimination because of disability (s. 1 Code).

17There is no dispute that the applicant’s medical condition falls within the protected ground of “disability” under the Code; that the medical service he requested was the performance of a colonoscopy; that he was directed to the Hospital for his colonoscopy rather than the SCOPE Clinic; and, that there is no difference in a colonoscopy performed at the hospital versus at the Clinic.

18The Tribunal has noted previously that it has no jurisdiction to evaluate whether a physician’s clinical decisions are medically appropriate. In Moshi v. Ontario (Ministry of Community and Correctional Services), 2014 HRTO 1044, the Tribunal stated at para. 43:

An applicant cannot establish that a physician, for example, discriminated against him or her merely by showing that the doctor made a clinical decision based on the applicant’s disability, which clinical decision turned out to be disadvantageous for the applicant. Doctors may make sound clinical decisions that end up compromising their parent’s health, for the same reason. They can also make mistakes that have adverse medical consequences for their patients. However, neither of these situations constitutes discrimination under the Code. As the respondent points out, a physician’s clinical decisions are necessarily based on his or her patient’s disability and, in that sense, may be said to be “linked to disability”. However, the existence of this kind of link is not indicative of discrimination. In order to establish that a physician, for example, has discriminated against someone “because of” disability, an applicant would have to establish that there [was some] arbitrariness in the manner the physician treated him because of his disability. As the Supreme Court emphasized in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital general de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161, at paras. 48-49, the essence of discrimination is in the arbitrariness of its negative impact.

19While I make no determination as to whether the applicant was treated in an arbitrary manner, it is clear that the applicant’s desire or need to have his colonoscopy performed at the clinic was not a need or requirement arising from or related to his disability. He indicated that he chose to have his colonoscopy at a clinic because, among other reasons, it would have been a more relaxed experience than a hospital. Although the applicant would have preferred to have his colonoscopy performed in a clinic rather than a hospital, the purpose of the Code is not to accommodate an individual’s preference: Graham v. Underground Miata Network, 2013 HRTO 1457 at para. 31.

20I should note that after his experience at the SCOPE Clinic, the applicant returned to his specialist who referred the applicant to another doctor for the colonoscopy. This physician performed the colonoscopy at the hospital without complication.

21For these reasons I find the respondent did not breach the applicant’s Code rights and the Application is dismissed.