High Court: HSE failed to properly assess disabled children under Disability Act 2005

About this case:

• Citation:
  [2022] IEHC 131
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Siobhán Phelan

The applicants argued that the HSE’s standard operating procedure (SOP) did not comply with the 2005 Act because it only consisted of 90-minute assessments which merely referred the applicants on for further assessment in local child services. The court held that the SOP frustrated the statutory intention of the 2005 Act “by reason of the patent failure to properly construe the breadth of the assessment obligation”.

Background

In January 2020, the HSE introduced the SOP, which had a two-stage process for applications for assessments of needs (AON) of child disabilities under the 2005 Act. First, a desktop assessment was carried out. Second, a “preliminary team assessment” would be made, which consisted of a 30-minute conversation with the parent and an hour observation of the child at play.

A report was produced on foot of these preliminary assessments. The reports did not contain any diagnosis of a child’s disability and merely stated whether a child had a disability. Prior to 2020, the practice was to make a full diagnostic assessment of a child, but this led to serious resource issues and extremely long waiting lists. Previous children had been successfully judicially reviewed the HSE on the old practice.

The applicants in the present case were both very young children who were thought to suffer from autism spectrum disorder. Both children had been assessed based on the 2020 SOP and had therefore not received proper diagnoses of their conditions. In both cases, it was stated that the children had “substantial restriction” in certain aspects of life which justified the conclusion as to disability.

The assessment officers referred both children for further assessment. Essentially, both reports identified the local children’s service as the appropriate place for diagnosis rather than the Part 2 assessment process under the Act.

The applicants, by their mothers, issued judicial review proceedings seeking to challenge the SOP and their preliminary assessments on the basis that they did not comply with the 2005 Act. The applicants argued that the assessments were improper because they failed to diagnose the children with a disability, if any.

Specifically, the applicants submitted that section 8(5) of the 2005 Act prescribed that an AON should be carried out without regard to costs or capacity of the necessary services. Further, an assessment report under section 8(7) required a statement on the nature and extend of the disability.

Standards for all AONs were adopted by HIQA in 2007. It was mandated that all AONs were required to be “comprehensive, accurate and up to date”. Remarkably, the HSE admitted that it was not aware of these requirements until recently.

The applicants argued that a diagnosis was clearly required for the HSE to comply with their legislative obligations to provide AONs. The HSE said that a diagnosis was not required under the 2005 Act when providing AONs. It was submitted that the word “diagnosis” did not appear in the Act and that a clinical diagnosis was not necessary to determine whether a child had a disability.

High Court

Delivering judgment in the case, Ms Justice Siobhán Phelan stated that it was appropriate to provide a literal interpretation of the legislation. It was noted that a disability was defined as a “substantial restriction” to participate in work or social life “by reason of an enduring physical, sensory, mental health or intellectual impairment.” Accordingly, the court held that a substantial restriction was not a disability unless it was accompanied by the foregoing impairments.

The court said: “In order to assess whether a disability within the meaning of Part 2 is present, it is therefore necessary to determine a cause of the restriction […] and to determine that the cause is enduring.” It was “difficult to see” how a determination of a disability could be made in these circumstances without a formal diagnosis, the court said.

Further, a determination of the “nature and extent” of a disability under section 8(7) appeared to require a diagnostic assessment of the disability as well. It was held that section 8(7)(b)(iii) of the Act required the HSE to specify the services required meet the applicants’ needs and that this also required a clear diagnosis.

Despite the fact that section 8(5) required a blind assessment of the children’s needs without regard to resourcing, the affidavits sworn by the HSE showed that the SOP arose out of concerns that AONs were diverting resources from intervention services. By allowing this concern to affect the assessment process, the HSE was ignoring the “exhortation” in the legislation (CM v. HSE [2021] IECA 283).

The court held that a disabled child’s needs had to be fully assessed in order to provide an “ideal world scenario” of a child’s care under section 8(5). The court noted that this conclusion was supported in (G (A Minor) v. HSE [2021] IECA 101).

Ms Justice Phelan also noted that the preliminary assessment did not sit comfortably with the HIQA requirement for a “comprehensive, accurate and up to date” report to be made. An assessment which deferred identification of a child’s specific needs and services was not in compliance with the HIQA requirements, the court said.

The court noted the criticism of the HSE’s expert that resources were being drawn away from post-assessment treatment in order to provide early assessment of disability. However, the court held that the provisions of the 2005 Act were not discretionary and a first-class assessment was required by law. The court stated: “It is not permissible for the respondent to hollow out these rights by adopting a SOP which seeks to convert an AON into a preliminary assessment contrary to the requirements of the Act, without the Act being amended.”

Conclusion

The court concluded that the preliminary assessment was not provided for in the 2005 Act and that such assessments resulted in delayed diagnosis of a child’s disabilities. The deferral of a full assessment resulted in the diminution of the statutory protections afforded to the applicants. Having regard to all of the identified factors, the court stated that a full and comprehensive assessment of a child’s needs and services was necessary. This could only be done with a proper diagnosis of a child’s condition.

There was no evidence in the case that the assessment officers determined that the applicants’ disabilities were caused by reason of an enduring physical, sensory, mental health or intellectual impairment. This was a key part of a defined disability under the Act and needed to be addressed in the reports.