A.B v HSE and Others

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins,Ms. Justice Máire Whelan
• Judgment Date: 10 November 2023
• Neutral Citation: [2023] IECA 275
• Court: Court of Appeal (Ireland)
• Docket Number: Appeal Number: 2021/277

In the Matter of Section 16 of the Courts of Justice Act, 1947 (As Amended) — A Case Stated from the Circuit Court to the Court of Appeal

Between

AB

Applicant

and

Health Service Executive

Respondent

and

Irish Human Rights and Equality Commission

Intervening Party

[2023] IECA 275

Collins J.

Whelan J.

Pilkington J.

Appeal Number: 2021/277

THE COURT OF APPEAL

Consultative case stated – Assessment of need – Disability Act 2005 s. 8 – Circuit Judge formulating a consultative case stated referring a question of law for determination – Whether an assessment of need carried out pursuant to s. 8 of the Disability Act 2005 can be regarded as complete in the absence of a diagnostic assessment of the child’s disability

Facts: There was a consultative case stated by Judge O’Connor, judge of the Circuit Court, pursuant to s. 16 of the Courts of Justice Act 1947, referring a question of law pursuant to s. 74(1) of the Court of Appeal Act 2014 for the determination of the Court of Appeal. The proceedings pertained to the minor child of the applicant, a key issue being whether the respondent, the Health Service Executive, validly discharged its functions and duties towards the said minor pursuant to the provisions of s. 8 of the Disability Act 2005, as amended, and, in particular, whether a diagnosis of any underlying disability in the capacity of the minor concerned, confirming not alone the existence of a “disability” within s. 2(1) as construed in the light of s. 7(2) but also the nature and extent of same, were prerequisites to the proper completion of a statutorily-compliant independent assessment of need pursuant to Part 2, s. 8(7) of the 2005 Act. The consultative case stated as formulated by the Circuit Judge was as follows: Where it has been determined by an assessment officer that an applicant has a disability, can the assessment of need be regarded as complete for the purpose of the 2005 Act if it does not incorporate any diagnostic assessment of the child’s disability, whether in determining the existence of a disability, or in setting out the nature and extent of the disability in question?

Held by Whelan J that, in general, where an Assessment Officer determines that an applicant has a disability, the assessment of need should not be regarded as complete for the purposes of the 2005 Act, unless, where in the opinion of the assessment officer a diagnostic assessment is warranted, appropriate or necessary in light of the evidence presenting, to ensure that the report properly identifies both the nature and extent of underlying disability or disabilities and the assessment report incorporates such diagnostic assessment of the individual or child’s disability and clarifies both its nature and extent. Whelan J held that the question posed by the Circuit Judge was framed in general terms and was not confined by or referable to the specific facts and circumstances obtaining in this case which was the subject of the substantive application to the Circuit Court; in those circumstances, it called for a qualified answer.

Whelan J’s answer to the question posed was as follows: an assessment of need carried out pursuant to s. 8 of the 2005 Act 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 for the purposes of identifying the nature and extent of the disability and/or for the purpose of identifying the health and education needs (if any) occasioned to the person by the disability and the services considered appropriate to meet those needs and/or the period of time ideally required for the provision of those services and the order of such provision.

Qualified answer.

(RE HSE STANDARD OPERATING PROCEDURE 2020)

JUDGMENT of Mr Justice Maurice Collins delivered on 10 November 2023

1 I agree with the judgment of Whelan J and with the answer she proposes to the question referred to this Court by His Honour Judge O' Connor.

2 I wish, however, to add some brief observations of my own. For that purpose, I gratefully adopt the comprehensive account set out by my colleague of the background to these proceedings, the terms of the case stated and the arguments made by the parties.

3 The question posed by the learned Circuit Court Judge is in the following terms:

“ Where it has been determined by an assessment officer that an applicant has a disability, can the assessment of need be regarded as complete for the purpose of the Disability Act 2005 if it does not incorporate any diagnostic assessment of the child's disability, whether in determining the existence of a disability, or in setting out the nature and extent of the disability in question.”

4 The reference to the “ assessment of need” is a reference to the assessment that is central to the operation of Part 2 of the Disability Act 2005 (“ the 2005 Act”). Part 2 is titled “ Assessment of Need, Service Statements and Redress”. “ Assessment” is defined in section 7 as “ an assessment undertaken or arranged by the Executive to determine, in respect of a person with a disability, the health and education needs (if any) occasioned by the disability and the health services or education services (if any) required to meet those needs.” Further guidance on the scope and purpose of such an assessment is provided by section 8 of the 2005 Act. It provides that the assessment officer is to be independent in the performance of his or her functions (section 8(4)) and that the assessment is to be carried out without regard to the cost of, or the capacity to provide, any service identified as being appropriate to meet the needs of the person concerned (section 8(5)). The effect of section 8(5) has been described in the case-law as requiring appropriate services to be identified on a “ resource blind” basis. The assessment officer is required to prepare a report in writing “ of the results of the assessment” (section 8(6)) which “ assessment report” is required (by section 8(7)) to “ set out the findings of the assessment officer concerned together with determinations in relation to the following:

(a) whether the applicant has a disability,

(b) in case the determination is that the applicant has a disability—

(i) a statement of the nature and extent of the disability,

(ii) a statement of the health and education needs (if any) occasioned to the person by the disability,

(iii) a statement of the services considered appropriate by the person or persons referred to in subsection (2) to meet the needs of the applicant and the period of time ideally required by the person or persons for the provision of those services and the order of such provision,

(iv) a statement of the period within which a review of the assessment should be carried out.”

5 That assessment report is then furnished ( inter alia) to the HSE and where the report includes a determination that the provision of health services or education services (or both) is appropriate, a “ liaison officer” authorised by the HSE must prepare a “ service statement” the purpose of which is to specify “ the health services or education services or both which will be provided to the applicant by or on behalf of the [HSE] or an education service provider, as appropriate, and the period of time within which such services will be provided” (section 11(2)). Where the subject is a child, the service statement is not to contain any provisions relating to education services (section 11(6)). 1 The assessment report is an input – presumably a significant one – into the service statement but the practicability of providing the services identified in the assessment report, and the resources available to the bodies charged with providing such services, are also relevant considerations (section 11(7)). In contrast to the section 8 assessment, the identification of services to be provided is not “ resource blind”. The service statement is nonetheless an important document because Part 2 of the 2015 Act provides a mechanism for enforcing the provision of the services identified in it (the mechanism invoked by the Applicant here).

6 The proper approach to the exercise of statutory interpretation has been considered in a number of recent decisions of the Supreme Court, including Dunnes Stores v Revenue Commissioners [2019] IESC 50, [2020] 3 IR 480; Bookfinders Ltd v Revenue Commissioners [2020] IESC 60; People (DPP) v AC [2021] IESC 74, [2021] 2 ILRM 305; Heather Hill Management Company CLG v An Bord Pleanála [2022] IESC 43, [2022] 2 ILRM 313 and, most recently, A, B & C v Minister for Foreign Affairs [2023] IESC 10, [2023] 1 ILRM 335. A, B & C v Minister for Foreign Affairs conveniently synthesises the earlier caselaw. In his judgment (with which Dunne, Charleton and Woulfe JJ agreed), 2 Murray J explained that the caselaw puts beyond doubt that language, context and purpose are potentially at play in every exercise in statutory interpretation, with no element ever operating to the complete exclusion of the other (§73). He continued:

“ The starting point in the construction of a statute is the language used in the provision under consideration, but the words used in that section must still be construed having regard to the relationship of the provision in question to the statute as a whole, the location of the statute in the legal context in which it was enacted, and the connection between those words, the whole Act, that context, and the discernible objective of the statute. The court must thus ascertain the meaning of the section by reference to its language, place, function and context, the plain and ordinary meaning of the language being the predominant factor in identifying the effect of the provision but the others always being potentially relevant to elucidating, expanding, contracting or contextualising...