Young patients on Department of Health waiting lists could be entitled to seek damages for delays in treatment, writes Hélène Hofman
Young people on waiting lists for services provided by the Department of Health may have a case to seek damages after a recent High Court ruling stated there was an "unreasonable" delay in diagnosing and providing services to an autistic boy, according to legal observers.
Cian and Yvonne Ó Cuanacháin took the case to the High Court on behalf of their seven-year-old son, Séan, arguing that he was entitled to a specialised form of education known as Applied Behavioural Analysis (ABA).
Although they lost this part of the case, in May they were awarded €61,000 in damages after a seven-month delay in diagnosing his condition and a further eight-month delay in providing him with a place at a specialised school was deemed culpable and unreasonable.
It emerged last week that Department of Health officials have expressed concern in internal documents that the case could have widespread implications for other patients on waiting lists in a range of areas including psychiatric assessments, speech and language therapy and disability services.
The Department of Health has refused to comment on the issue saying "the matters referred to are the subject of an appeal in the Supreme Court and it would be inappropriate to comment any further until the outcome of that appeal is known".
However, Dr Conor O'Mahony, a lecturer in law at University College Cork and author of Educational Rights in Irish Law, says the Department of Health could now be open to widespread litigation as a result of the delays.
"It seems this is the first judgment that the issue of delay has appeared in and in some ways it is predictable that this is what it came down to," says O'Mahony.
"It's universally recognised that for children with special needs - whether that's autism or dyslexia - early intervention is essential. The earlier you get diagnosis and treatment the better. The danger is if you leave it too long, the child will regress even further."
According to O'Mahony, it is now very likely that other cases will be taken on behalf of young people with special needs in similar situations.
"The child [Séan Ó Cuanacháin] had to wait for 15 months for a diagnosis and a place in the recommended school. That is a long time in the case of a three-year-old and that length was seen as an unreasonable delay, especially because all the bodies involved knew how important early intervention was," O'Mahony says.
"It was also pointed out that the delays resulted not because of bad faith but because of a lack of resources, still it was a culpable delay . . . Anecdotal evidence suggests everyone is waiting as long as the Ó Cuanacháins," he says.
O'Mahony also acknowledges that the ruling could have implications for young people with special needs other than autism.
"Most of the cases in this area in Ireland have related to autism, but there is such a huge spectrum of special needs that other cases may come out of it once it's a case where early intervention is needed and there has been a culpable delay. After that it will have to be decided on a case-by-case basis by the judge," says O'Mahony.
There are already a number of areas in which young people are on long waiting lists. For example, 3,000 children are currently waiting for a psychiatric assessment and, according to Irish Autism Action (IAA), children are waiting between nine months and two years to be assessed for autism.
"With children who have autism or other disabilities early intervention is essential. It's right that there has been a demonstration of compensation, but financial compensation will not get you back those early years," says Kevin Whelan, chief executive of the IAA.
According to Whelan, the priority for the Department of Health should be to clear the waiting lists for appropriate services. Last February, the organisation opened the Solas Centre to carry out autism assessments, which is funded by donations, and they have assessed 182 children to date.
"We think the most important thing is to get rid of the backlog and that can be helped by outsourcing the assessments for a start. Solas represents one of the vehicles to do this," says Whelan.
"Until such a time as they deal with the waiting list, they will leave thousands of others exposed to the delay. I would encourage the HSE to look at clearing the backlog instead of having to pay out compensation in future and to redirect this money into services now," he says.
The Disability Federation of Ireland (DFI) says the ruling is one that will affect many people, but raises concerns that it won't cover a number of adults with special needs who are also facing long delays for treatment and diagnosis.
"This is not just about autism, it's not just about children and it's not just one condition," says John Dolan, chief executive of the DFI.
"The need for early intervention needs to be seen as important not just for children but also at the onset of disability, which can happen at any point in life.
"It can be difficult to access services at any age," he says.
"The point is there are certain things that can only be provided as a public service," says Dolan.
"People with disabilities need infrastructure and we can't keep thinking that a job has been done because there is compensation.
"Certain things must be standard of public provision," he says.