J.A (A MINOR) SUING BY HIS MOTHER AND NEXT FRIEND v THE HEALTH SERVICE EXECUTIVE On 11 March 2022 the High Court ruled in the above test cases that the Standard Operating Procedure (SOP) that the HSE has applied when assessing the needs of children with suspected health and educational needs does not comply with their obligation under the Disability Act 2005. The (SOP) was developed by the HSE and implemented from 15 January 2020. Under the new procedure the assessment to be carried out on a child is referred to as a “Preliminary Team Assessment” instead of the full assessments which had been carried out under the Assessment of Need process provided for in Part 2 of the Disability Act 2005. The assessments in the cases of CTM and JA were “preliminary team assessments”.

Under the new procedure 60-90 minutes of an assessment was deemed adequate. The new procedure expressly provided that a diagnosis is not required under Part 2 of the 2005 Act which was at variance with the full comprehensive assessments previously carried out which frequently included diagnosis. The AON process as provided for within the statutory framework stipulates that an assessment be done without regard to resources.

The High Court interpreted the assessment process under Part 2 of the Act as including a diagnostic requirement as more consistent with the statutory scheme established pursuant to section 10 of the Act than the terms of the (SOP). Noting a preliminary team assessment as provided for other than the (SOP) does not sit comfortably with a requirement under Section 10 of the act that the assessment be “comprehensive, accurate and up to date (HIQA Standards).

The Court took cognisance of Section 13 of the 2005 Act which mandates the HSE to maintain records in a manner which permits a periodic report to be submitted to the Minister which identifies aggregate needs for services identified in assessment reports and the periods of time ideally require for the provision of such services. The Court noted the undermining effect on the information to be provided to the Minister where needs are not fully assessed in a manner which permits the accurate identification of service needs. The Court also noted that while standards for assessment of needs had been set out by the Health Information Quality Authority (HIQA) pursuant to section 10 of the Act since 2007, their status as the applicable standards established pursuant to statute had only been recently acknowledged by the HSE. The effect of introducing a lower standard of assessment is considerable, resulting in delayed assessments when the value of early diagnosis and intervention is well established.

The Court concluded that what is required under Part 2 of the 2005 act is an assessment of the nature and extent of the disability without any conditioning of the assessment as “preliminary” but rather a full and comprehensive assessment which identifies needs, identifies services appropriate to those needs and the time frame in which ideally, they would be provided.

The Court held that the respondent had impermissibly sought through the introduction of the SOP to alter what is required under a Part 2 assessment. As such, in these cases the resulting reports were held to be ultra vires by reason of the patent failure to properly construe the breadth of the assessment obligation arising under Part 2, resulting in an assessment which was not in accordance with the requirements of Part 2 and frustrates the statutory intention that services need would be identified, and a level of unmet need reported.

Accordingly, and consequent upon an error of law relied upon in completing the assessment reports, the court granted an order of certiorari quashing the respective applicant’s assessment reports. The HSE have stated it will not appeal the decision. However, it is awaiting the imminent judgment in a related court case at which stage it would convene with stakeholders before deciding on a new mechanism for assessing children.

Unfortunately for families with children with special needs, they continue to have to wait for effective assessments of their children by the HSE despite clarity on their obligations been provided by the High Court.

For further information please contact Andrew Murnaghan at 01-2243576 or

amurnaghan@kmsolicitors.ie