A High Court judge has held that a preliminary process used by the HSE to assess the needs of children with suspected educational and health problems does not comply with the disability laws.
In a judgement Ms Justice Siobhan Phelan held that the ‘Standard Operating Procedure’ (SOP) which the HSE has applied when assessing the needs of children with disabilities does not comply with the requirements set out in the 2005 Disability Act.
The judge made her ruling in two test actions brought on behalf of minor children who in judicial review proceedings against the HSE sought to quash reports compiled after they underwent SOPs.
The cases centred around the entitlement under the 2005 Disability Act to assessment of their needs within a statutory time-frame to have their educational and health needs assessed.
The act also entitles children to an assessment report, a statement of what services they will receive, and a right to make a complaint on certain issues.
For some time, the court heard that that there has been widespread non-compliance with these statutory times limits across many regions in Ireland.
The children, represented by Feichin McDonagh SC and Brendan Hennessy BLinstructed by solicitors Eamonn Keane and John Rogers, were assessed under SOPs on separate dates in 2021.
They wanted their assessments quashed on the grounds that they did not comply with the requirements of the 2005 Act.
The SOP’s findings did not amount to a proper diagnosis or assessment of their needs, which amounted to a breach of their rights, it was further argued.
In her decision the judge said that, in order to comply with the time requirements of the 2005 Disability Act, the HSE developed SOPs which was implemented from January 2020.
The SOP, she said, provides for a preliminary or triage type assessment instead of the full assessments which had previously been carried out.
The SOP, she said, came about because in a significant number of cases the statutory time period fixed for completing the assessments of needs was not respected and this in turn led to delays in completing assessments and associated litigation.
The judge said she was asked to determine whether this preliminary or triage type assessment of the type envisaged under the SOP meets the statutory requirements for an assessment or is based on an erroneous interpretation of the requirements of the relevant section of the 2005 Act.
The judge said that crucially SOPs expressly provides that diagnosis is not required under the Act’s assessment process and provides as a guideline that the preliminary team assessment should take 60 to 90 minutes.
Controversial terms
The judge added that the terms of the SOPs “are controversial” because the new approach signalled in them to assessments nationally results in the delivery of a preliminary assessment, without diagnosis instead of the full comprehensive assessment,
The judge said that the assessment process is quite unique in that it requires that an assessment is done “without regard to resources.”
The assessment, she added, “is integral to how the State discharges its duties to vindicate the rights of children with disabilities.”
It is only through the identification of the child’s needs is the State equipped to measure the resources required to meet those needs and to deploy those resources.
In the absence of sufficient information to make decisions in relation to competing interests and having regard to the limited resources available, the State is hampered in properly discharging its constitutional mandate to vindicate the rights of a child with disabilities “as far as practicable”. she added.
The two children’s assessments she said were “preliminary team assessments” conducted in accordance with the newly introduced SOP.
The HSE has impermissibly sought through the introduction of the SOP to alter what is required under the 2005 Act.
Whilst preparing a report in full compliance with the SOP, the HSE failed to determine that the significant restrictions presenting on initial assessment were caused by an enduring physical, sensory, mental health, or intellectual impairment
The reports generated by the SOP result in an assessment which is not in accordance with the requirements of the 2005 Act, she said.
The results, of the SOP frustrates the statutory intention that services need would be identified, and a level of unmet need reported, she added.
The consequence of the failure to properly define the statutory parameters of the extensive, gold standard, assessment required under the 2005 Act is not alone that it undermines the ability of the respondent to itself plan for service provision.
It also undermines parents and guardians in advocating for appropriate and timely service provision to better secure the vindication of statutory and constitutionally safeguarded personal rights, she added.
The applicants were also entitled to their costs, the judge said.