After the withdrawal of the Disability Bill last week, it may seem that there is nothing more to be said on the subject for the time being, writes Fintin O' Toole. A dreadful piece of legislation has collapsed before it was even debated in the Dáil. Nothing is going to happen before the election. And, of course, the whole subject has now been wrapped in soothing assurances. The Government line is clear: trust us on this one, never mind the technicalities, our hearts are in the right place. The line is, to put it very mild, disingenous.
The State fights these things on two fronts: the political and the legal. Faced with defeat in the political arena last week, it sounded a tactical retreat. On the very day it did so, however, it went on the attack on the legal front. In the High Court last Tuesday, the State's lawyers revealed very clearly that the thinking behind the Disability Bill is alive and well and being used against disabled children and their parents.
What was implicit in the Disability Bill - that such people do not have fundamental rights - is being made explicit in the High Court.
The case concerns Colum McNabb, a four year-old boy from Co Galway. Colum is autistic. He attends a school in Galway city which uses the Applied Behavioural Analysis (ABA) system, an extremely intensive one-on-one teaching method that has had remarkable success. The State, however, is refusing to fund his education, insisting that he should attend a local Brothers of Charity special school instead.
While nobody has anything other than the highest respect for those who work within the Brothers of Charity service, they themselves were clear in their evidence last week that the education they could provide for Colum was determined, not by his needs, but by the resources available from the State: "One would have tried to provide a service to Colum and the family within our limitations, and our limitations would have been resources . . . I don't think any member of the team would have felt that we were adequately meeting Colum's needs, but within the resources of the team we would have tried to meet Colum's needs as best we could."
THE speech therapist who dealt with him, for example, told the court that Colum should have had between 10 and 12 hours of speech therapy a month. Between September 1999 and last month, therefore, the State should have provided about 300 hours of speech therapy. In fact it provided twenty. The need for Colum's parents, James and Nichola, to organise their son's education themselves was therefore obvious. What they went to court for was simply an order requiring the Department of Education to accept its duty to provide an appropriate education and pay for it.
At this point, people who took any interest in the Jamie Sinnot case last year may be wondering if this is not an old column reprinted by mistake. They may remember Michael Woods saying that the only issue at stake in the State's appeal of the High Court judgement in favour of Jamie and Kathryn Sinnot was the meaning of a primary education under the Constitution. Jamie is an adult, and the point on which the State took that case and defeated the Sinnots was that the State's duty ends at the age of 18. Colum McNabb is four.
The State, moreover, has recently settled two cases identical to the McNabb case, in which parents sought to underpin State funding for schools they had established using the ABA method. In both of these recent cases, the State agreed a programme of provision with the parents and paid their legal costs. Michael Woods is also on public record as saying that he has a "virtual open chequebook" for the educational needs of children with autism.
So why is the State fighting the McNabbs every inch of the way? The reason only became clear last week when the Department's lawyers outlined the principles they wish to establish. As the State's counsel Paul O'Higgins SC put it, the law, "whether for good or bad reason, nevertheless leaves intact the entitlement of the Minister to have regard to resources available in the context of the making of decisions as to appropriate education."
THE whole issue of whether or not a disabled child has a right to an education appropriate to their needs "is a matter nonjusticiable before the courts and within the preserve of the legislature". As the Department told the judge last week, "the State's intention is to make provision for Colum McNabb in relation to his education, the State will give him appropriate education, but the meaning of 'appropriate education' . . . the practical provision of 'appropriate education' is one primarily to be affected by the Minister."
Behind the legalese, the intention is completely clear. What the Government wants to enshrine in a High Court judgment is precisely what it has been unable to get into law through the abortive Disability Bill: the principle that people with disabilities and their carers have no legally enforceable rights and that even apparent rights like the Constitutional guarantee of a primary education are entirely dependent on political decisions about resources.
An appropriate education for Colum is not what he needs but what the Minister thinks it reasonable to pay for.
If it manages to get that principle accepted by the Courts, all the fuss about the Disability Bill will be just a sideshow.
fotoole@irish-times.ie