The approach of the Health Service Executive and a disability appeals officer to the case of a young boy diagnosed with autism raises “serious questions about their understanding” of his rights, a High Court judge has said.
Mr Justice Oisín Quinn found that a proposed three-year wait for therapeutic services for the child should have raised an “immediate and serious concern” with the officer dealing with an appeal by the boy’s mother.
The judge said the rule of law “requires administrative and statutory bodies to respect the law and, particularly in the case of a vulnerable young child with a diagnosed disability, to comply with it earnestly”.
The appeals officer had dismissed the mother’s complaint that therapies recommended for her son by the HSE in October 2020, when he was two years and nine months old, would not be available for at least three years.
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The October 2020 recommendation stated he immediately required occupational therapy, speech and language services, psychology support and physiotherapy. However, a follow-up “service statement”, which specifies the services to be provided “by or on behalf of the HSE” and from when, did not provide that any actual therapies would commence after the three years, the judge said.
Rather, it appears it was envisaged that, from November 2023, there would be meetings involving a process whereby “goals” would be developed through the “individual family service plan process” which would lead to the identification of the “specific interventions needed to support this”, he said.
In her High Court judicial review seeking to quash his rejection, the mother alleged, among other things, that the officer failed to properly interrogate whether or not the HSE could provide the required services any earlier than the date given.
The judge said the woman first applied for her son’s needs to be assessed in June 2019, when he was 17 months old. She said he had no speech, babbled and communicated through screaming and whinging. He also had sensory difficulties, shook and banged his head and disliked noise, she said.
The 2005 Disability Act requires a report assessing the child’s needs to be finalised within six months of a request, but here it took about 16 months, the judge said. A report setting out the therapeutic services he needed came three months later.
Five days after this, in October 2020, the woman received her son’s “service statement”.
The judge said that by the time of the hearing of this case last month “nothing had happened at all, bar apparently ‘a phone call’ to [the boy’s] mother”.
He said there was no dispute between the parties about the “known critical importance of early intervention” in a case like this boy’s.
The judge said the 2005 Act, in a case involving a child, should be interpreted in the context of article 42a.1 of the Constitution, which imposes an autonomous duty on the court to uphold the natural and imprescriptible rights of the child.
The Convention on the Rights of Persons with Disabilities and article 40.1 of the Constitution require, so far as is practicable, children with disabilities to have full enjoyment of all human rights and fundamental freedoms on an equal basis with other children, he added.
The judge was satisfied the disability appeals officer had more than simply an “entitlement” to interrogate whether the November 2023 date was correct. Where the young child has an autism diagnosis and an assessment report recommending immediate services, the proposed start date for developing the “individual family service plan process” should have raised a “serious concern and interrogation”, said the judge.
There was a “significant error of law” on the officer’s part in conflating “practicality” and “budget” considerations as together meaning “resources”, the judge said. These considerations had to be assessed and interrogated separately.
The substantial delay in the appeal process was also “wholly unacceptable”, the judge added.
Meanwhile, the HSE should have been interrogated by the officer as to what urgent therapeutic services could have been provided at an earlier stage, if necessary, from other providers, he said.
The officer’s decision is “seriously deficient”, with certain findings that “do not make sense”, said the judge.
The officer’s finding that the onus was on the woman in “any disputed matters” is wrong, he added.
“How can the family of a young child prove that, for example, the services of a private speech and language therapist will or will not push the HSE over budget?”
The judge said he will hear from the parties as to the form of his order.
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