By Ann O'Loughlin
A High Court judge has given the HSE six weeks to complete needs assessments of three children with suspected autism.
About 20 similar cases have been brought over delays of up to two years in carrying out assessments under the Disability Act 2005.
The delays completing assessments in the two cases, plus delays of nine months or more dealing with complaints over the delays, are "wholly unreasonable" and the applicants were reasonably entitled to withdraw from the statutory complaints process and pursue judicial review, Ms Justice Mary Faherty said.
This was particularly so because of the need for early intervention where autism is suspected.
The HSE, she noted, had accepted the statutory remedy had not operated as it should have regarding these complaints and had effectively conceded it could not argue against an order directing the assessments be completed within a given timeframe because the Circuit Court might have made a similar order had the applicants remained in the complaints process.
She refused to grant a declaration the statutory complaints process provided for within the Disability Act 2005 was, due to delays deciding complaints, not an adequate or appropriate remedy.
Under the Act, an assessment must commence within three months of an application being received, and be completed within a further three months from date of commencement. If not, the reasons why must be set out, as must a time frame for completion.
The Act also provides a mechanism for dealing with complaints over failure to complete assessments within the timelines and for enforcement by the Circuit Court of recommendations of complaints officers.
An assessment normally involves a multi-disciplinary team including an occupational and speech and language therapist, a physiotherapist and a psychologist.
The first case before the judge concerned two children whose mother in July 2016 sought an assessment for her son, born late 2014, which should have been completed by late October 2016 and no later than January 2017.
She complained about delay in November 2016. By April 2017, when the complaints officer was on complaint number 660, her complaint was number 1,038.
The mother also complained about delay in assessing her daughter, born late 2015 and referred for assessment in March 2017 but the June 2017 completion date was not met due to a considerable backlog.
In the second case, a mother in May 2016 sought assessment of her daughter, born late 2012 but was told by an assessment officer in August 2016 the waiting list was 15 months. She complained in December 2016 about the delay and was told in August 2017 the delay was now 18 months.
Both applicants later withdrew their complaints about delay in favour of pursuing judicial review.
In opposing the cases, the HSE said a new assessment process was being introduced last April and maintained the appropriate forum for addressing complaints over delays is the Circuit Court. It did not rely on a resources defence and said, irrespective whether assessments were completed in many cases, access to services is being granted to children.
It also said a huge increase in assessment applications, from 1,137 in 2007 to some 6,000 in 2017, imposed a significant demand on scarce clinical resources.
The court heard of considerable variation nationwide in carrying out assessments. In the second quarter of 2017, 91% of assessment applications in north Dublin were commenced while in west Cork it was 14%.
In April 2017, about 29 officers were dealing with assessments.
When the cases were initiated, one complaints officer was dealing with about 80 complaints monthly over delays but another four or five complaints staff are being appointed.
In her judgment, Ms Justice Faherty said the Oireachtas, having enacted a system of assessment of need with associated timeframes, also enacted an integral statutory system of redress for complaints about breaches of those timelines, plus an inbuilt mechanism for judicial enforcement.
By "no stretch of logic" could it be considered reasonable that a person who avails of the inbuilt statutory process to complain of failure to provide a service within a mandatory time frame should then find themselves subject to a complaints process forcing them to be subject to further delay in accessing an assessment for their child, she said.
There was no doubt the applicants pursued their statutory remedy and were entitled to withdraw their complaints after considerable months elapsed without their complaints being addressed.