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HSE’s disability approach ‘undermines rights’

The Irish Human Rights and Equality Commission (IHREC) has welcomed what it has described as a “landmark” decision by the Court of Appeal last week.

The case involved the HSE’s Standard Operating Procedures (SOPs) for assessing the needs of a child with a disability.

The commission acted in the case in its role as amicus curiae (friend of the court).

New procedures

The case concerned a child who was referred for an assessment under the Disability Act 2005 following the HSE’s new SOP, which has been in operation since January 2020.

Under the new SOP, the HSE identified the child as having a disability, but declined to diagnose the nature and extent of it, saying that the 2005 act did not require it to do so. Instead, the HSE referred the child for supports and services.

IHREC said that the applicant’s parents were concerned that their child had Autism Spectrum Disorder, and believed that the HSE’s approach resulted in an incomplete assessment that would have a negative impact on the child.

In its submissions to the court, the commission argued that it was crucial that the provisions of the 2005 act be interpreted in a manner consistent with fundamental rights and, in particular, the State’s obligations under the CRPD [UN Convention on the Rights of Persons with Disabilities].

Act ‘clear and succinct’

In her ruling, Ms Justice Máire Whelan described the commission’s contention that it was not necessary for the court to depart from the clear and succinct language of the act to construe it properly as “correct”.

She also stated: “The 2020 SOP, to a very significant extent, undermines the rights of persons with a disability.”

The judge stated that an assessment of need carried out under legislation “cannot be regarded as complete in the absence of a diagnostic assessment of the child’s disability unless, in the reasonable opinion of the assessment officer, such a diagnostic assessment is not required”.

Obstacles

Describing the introduction of the HSE’s SOP as having been a “sea change”, the judge said that it had placed “very substantial and ultimately impermissible obstacles on the path of the individual attempting to exercise their right to obtain a valid independent assessment of need”.

Sinéad Gibney (Chief Commissioner of IHREC) said that the human-rights group hoped that the decision would result in “certainty and clarity” for disabled children and their families.

“The court has found that a diagnosis, which is required in all but the most exceptional cases, is required by law, and that the HSE’s SOP breached the rights of the disabled child at the heart of this case,” she concluded.