About this case:

• Citation:
  [2022] IEHC 652
• Court:
  High Court
• Judge:
  Mr Justice Charles Meenan

Delivering judgment in the case, Mr Justice Charles Meenan stated that the HSE was required to provide the assessment, noting that the HSE had consented to orders involving “necessary assessments/re-assessments” of the applicant in previous judicial review proceedings.

The court noted that three sets of judicial review proceedings had issued in the case and stated that the resources spent in the litigation might have been better applied elsewhere.

Background

The applicant, RC, was the mother and next friend of DR. DR was diagnosed with Autism Spectrum Disorder and 2p 16.3 Deletion Syndrome in a private healthcare setting. However, DR required a diagnosis of his condition to be set out in an assessment of need (AON) from the HSE in order to access appropriate schooling and education services.

The applicant first sought a diagnosis for her son in December 2016. A report issued in January 2018 where a finding of disability was made in the AON. It stated that DR was at risk of developing ADHD which required intervention and monitoring over time. The AON stated that a review would occur in January 2019.

No such review occurred and the applicant brought judicial review proceedings against the HSE. These proceedings were settled and resulted in a consent order that the HSE was to “commence and complete a Review of [DR’s] Assessment of Need […] to include any necessary assessments/re-assessments within 9 weeks”.

A review was carried out in February 2020, but no diagnosis was given. The applicant argued that this was a breach of the consent order in the first proceedings and a second set of judicial review proceedings issued in June 2020. These proceedings were struck out on consent in February 2021, with the applicant believing that a fresh assessment was imminent. A letter was also received from the HSE outlining that the privately obtained diagnosis of DR’s condition would be accepted.

However, by August 2021, no review had taken place. The HSE wrote to the applicant’s solicitor stating that they were under a “misapprehension” that any agreement had been made to the effect that DR was entitled to or would receive a further AON review.

The applicant then issued a third set of judicial review proceedings, seeking an order compelling the HSE to review DR’s AON within six weeks. In December 2021, a review AON was furnished to the applicant but this review did not contain a diagnosis by the HSE. Instead, the review only referred to the diagnosis which had been obtained privately.

In the third set of proceedings, the HSE initially maintained that the application was moot on foot of the December 2021 review. Further, it was submitted that a review was not a new or re- assessment of the AON pursuant to section 8 of the Disability Act 2005. Instead, the applicants should have invoked the provisions of section 9(8) of the Act for a new assessment, it was said.

Further, in an application to amend a statement of opposition, the HSE stated that every case did not require a diagnostic assessment but that such steps were “required where necessary to establish the cause, nature and extent of an applicant’s disability”.

High Court

Mr Justice Meenan began by noting that the AON from December 2021 did not contain a diagnosis for DR notwithstanding that there was a legal obligation to provide one. As such, the proceedings were not moot.

The court reviewed the statement of grounds and rejected the “narrow view” of the HSE that it was only obliged to carry out a review which did not involve an assessment/re-assessment. The approach “flies in the face of the mandatory order of Court which it consented to, which clearly required assessments/re-assessments that were necessary”, the court said. Further, it was held that the approach “completely ignored” the content of the correspondence to the HSE that a diagnosis was required.

The court also considered the HSE’s Standard Operating Procedure, which stated that a diagnosis did not need to be made as part of an AON. The SOP had been considered in CTM (a minor) v. The Assessment Officer and HSE [2022] IEHC 131, where it was held that a full and comprehensive assessment was necessary to identify the needs and services of a child. In order for this to occur, the disability also had to be determined.

Applying CTM, the court held that the AON fell short of what was required, particularly where the HSE was aware that a private diagnosis of DR was not sufficient for services to be made available.

While it was correct that the applicant did not place express reliance on the provisions of section 9(8) of the 2005 Act, it was always clear that this was what the applicant required. The HSE’s position effectively ignored the previous court order which was made on consent, the court said.

Conclusion

The court held that the applicant was entitled to succeed in the judicial review. The court commented that it should not have taken three sets of proceedings to get to this point and it was “hard to avoid the conclusion that the resources spent in dealing with these proceedings and the earlier two might have been better applied”.

RC, DR (A Minor suing by his Mother and Next Friend RC) v Health Service Executive [2022] IEHC 652