Process to assess needs of children with disabilities does not comply with law

A High Court judgment stated that the HSE is falling foul of the law in how it conducts its assessment of need process regarding children who may have a disability.

A High Court judgment stating the HSE is falling foul of the law in how it conducts its assessment of need process regarding children who may have a disability has sparked fresh calls for an overhaul of the system.

The judicial review delivered by Ms Justice Siobhán Phelan quashed the assessments of two young children and said there was a "patent failure to properly construe the breadth of the assessment obligation", even if the HSE was in an "invidious position" whereby it had "a legal obligation to assess needs without necessarily having the means to address them”.

It comes two years after the HSE introduced a standard operating procedure aimed at cutting the backlog in assessments of need, switching the average time spent initially screening a case from 29 hours down to just 90 minutes.

It meant the HSE was technically discharging its statutory requirements under the Disability Act, but critics said it was simply pushing children onto different waiting lists, where they could spend years awaiting a diagnosis and then the required supports and services.

Two test cases

The two test cases, brought by counsel Feichin McDonagh and Brendan Hennessy, with solicitors Eamonn Keane and John Rogers, challenged the legality of that process and whether it complied with the law as set out by the Disability Act 2005.

Ms Justice Phelan found that it did not.

"The consequence of the failure to properly define the statutory parameters of the extensive, gold standard, assessment required under the 2005 act is not alone that it undermines the ability of the respondent to itself plan for service provision," she said. "It also undermines parents and guardians in advocating for appropriate and timely service provision to better secure the vindication of statutory and constitutionally safeguarded personal rights."

Sinn Féin spokesperson on disability Pauline Tully and spokesperson on health David Cullinane said the judgment showed the HSE’s process was operating outside of the law and denying children with disabilities their right to a proper assessment of need.

"This decision raises serious questions about how the Government have been treating children with disabilities," said the TDs.

“The ruling is clear that the standard operating procedure, as it currently stands, falls afoul of the act."

In a PQ response to Mr Cullinane this week, the HSE said the average duration of the assessment process per report completed in the last quarter of 2021 was almost 15 months, with just 4% completed in the timeline in Cork/Kerry. 

Delays

As for service statement, which follows total completion of the assessment, just 41% nationally were dispatched within the one-month timeline, plummeting as low as 8% in the HSE area covering South Tipperary, Wexford, Waterford, and Carlow/Kilkenny, and 10% in Cork/Kerry.

It also showed other delays: 602 applications due to commence Stage 2 of the assessment of need process, which comprises a preliminary team assessment to identify initial interventions and any further assessments that may be required, had not done so by the end of 2021.

The TDs said the HSE should not appeal the ruling and said: "The Government must properly resource assessment teams to carry out a full assessment of need in compliance with the act."

In a statement, the HSE said it had received the judgment of Ms Justice Phelan in the case of CTM and JA v HSE and added: "We are examining the judgment and the implications of same are being carefully considered."