The High Court has ruled that a Health Service Executive assessment of a child with disabilities fell short of the requirements of the Disability Act 2005, allowing the child and his mother to succeed in their judicial review.
Mr Justice Charles Meenan said the Assessment of Need issued in December 2021 did not contain a diagnosis by the HSE. The judge rejected the HSE’s argument that the proceedings were moot because it had furnished a review, and its position that the review did not require further assessments or reassessments.
The child, identified in the judgment as D.R., had been diagnosed privately with Autism Spectrum Disorder and 2p 16.3 Deletion Syndrome. His mother, identified as R.C., sought an HSE diagnosis through the assessment process to help secure services, including appropriate schooling and educational supports.
This was the family’s third set of judicial review proceedings. In the first, the HSE consented in December 2019 to an order requiring it to review the child’s assessment, including any necessary assessments or reassessments. A review was issued in February 2020, but the family considered it inadequate. A second set of proceedings was struck out by consent in February 2021. The HSE later disputed that any agreement had been made for a further review.
The High Court granted leave for the present proceedings in November 2021. The HSE furnished another review the following month, referring to the privately obtained diagnosis rather than making its own diagnosis. The HSE argued that a review had been completed and that any request for a new assessment should have been made under section 9(8) of the Act.
The judge found that the December 2021 assessment did not resolve the central issue in the case. He said the HSE’s narrow interpretation of “review” conflicted with the 2019 consent order and the family’s clear requests for a diagnosis and reasons for it. He also applied a 2022 High Court judgment concerning the HSE’s assessment procedure, which held that appropriate diagnostic assessments may be needed to establish the cause, nature and extent of a disability. That judgment had not been appealed, the court noted.
The court concluded that the HSE assessment fell short of the Act’s requirements and that the family was entitled to succeed. It did not make final orders at this hearing. The judge directed that written submissions on costs, limited to 1,500 words, be filed by 7 December 2022, and listed the case for final orders on 14 December 2022.