C.T.M. (A Minor) Suing by His Mother and Next Friend v The Assessment Officer the Health Service Executive

• Jurisdiction: Ireland
• Judge: Ms. Justice Siobhán Phelan
• Judgment Date: 11 March 2022
• Neutral Citation: [2022] IEHC 131
• Court: High Court
• Docket Number: [Record No. 2021/405 JR]

Between:

C.T.M. (A Minor) Suing by His Mother and Next Friend

Applicant

and

The Assessment Officer the Health Service Executive

Respondents

J.A. (A Minor) Suing by His Mother and Next Friend

Applicant

and

The Health Service Executive

Respondents

[2022] IEHC 131

[Record No. 2021/405 JR]

[Record No. 2021/710 JR]

THE HIGH COURT

JUDICIAL REVIEW

Assessment of need – Standard operating procedure – Disability Act 2005 Part 2 – Applicants seeking order of certiorari quashing assessment report – Whether a preliminary or triage type assessment of the type envisaged under the respondent’s newly adopted standard operating procedure met the statutory requirements for a Disability Act 2005 Part 2 assessment

Facts: The respondent, the Health Service Executive, in order to ensure consistency in Assessment of Need (AON) and adherence to statutory time-frames, developed a Standard Operating Procedure (SOP) which was implemented from January, 2020. The SOP provided for a preliminary or triage type assessment instead of the full assessments which had previously been carried out. Under the SOP, the assessment was referred to as a “Preliminary Team Assessment”. This truncated form of assessment was considered by the respondent to meet the requirements for an AON under Part 2 of the Disability Act 2005. The newly adopted SOP expressly provided that diagnosis was not required under the Part 2 assessment process and provided as a guideline that the preliminary team assessment should take 60 to 90 minutes. The new SOP applied to the two assessments in these cases before the High Court. At the heart of the issues Phelan J was required to determine in these proceedings was whether a preliminary or triage type assessment of the type envisaged under the respondent’s newly adopted SOP met the statutory requirements for a Part 2 assessment or was based on an erroneous interpretation of the requirements of Part 2.

Held by Phelan J that the respondent had impermissibly sought through the introduction of the SOP to alter what is required under a Part 2 assessment by directing the conduct of assessments on the basis that all that is required under Part 2 is a preliminary team assessment of up to 90 minutes from which a “broad” statement of the nature and extent of needs may be discerned without requirement for diagnostic assessments. Consequent upon the terms of the SOP and by performing an assessment in compliance with the terms of the SOP, Phelan J held that the assessment officers in both cases erred in law; whilst preparing a report in full compliance with the SOP, they failed to determine that the significant restrictions presenting on initial assessment were caused by an enduring physical, sensory, mental health or intellectual impairment (being the categories of disability identified in s. 2 of the 2005 Act) but proceeded on the basis that diagnostic assessment of the nature and extent of the disability was not required. Phelan J held that the resulting reports were ultra vires by reason of the patent failure to properly construe the breadth of the assessment obligation arising under Part 2, thereby resulting in an assessment which was not in accordance with the requirements of Part 2 and which frustrates the statutory intention that services need would be identified and a level of unmet need reported. Phelan J held that the issue of statutory interpretation and complaints of error of law leading to ultra vires actions of the respondent advanced in these proceedings could not be pursued under s. 14 and no adequate or alternative remedy was available to the applicants under the 2005 Act. Consequent upon an error of law relied upon in completing the assessment reports, Phelan J granted an order of certiorari quashing the assessment report completed on the 1st February, 2021 in the first case (Record No. 2021 405 JR) and 20th April 2021 in the second case (Record No. 2021 710 JR).

Phelan J held that the applicants in both cases appeared to be prima facie entitled to an order for their costs to be adjudicated in default of agreement having regard to the principles set down under Part 11 of the Legal Services Regulatory Authority Act 2015.

Applications granted.

JUDGMENT of Ms. Justice Siobhán Phelan delivered on 11 ^th March, 2022

INTRODUCTION

1 . These cases follow in a line of cases in which the courts have been required to interpret the provisions of the Disability Act 2005 [hereinafter “the 2005 Act”] insofar as they concern the assessment of the health and educational needs of children with disabilities under Part 2 of that Act.

2 . It is uncontroverted in these proceedings that children who qualify for an Assessment of Need [hereinafter “AON”] under Part 2 of the 2005 Act have a right, within a prescribed statutory time-frame, to:

• a. an assessment of their health and educational needs arising from their disability (under s. 8);

• b. an Assessment Report (under s. 8(7));

• c. a statement of the services they will receive (under s. 11);

• d. make a complaint in relation to prescribed matters (under s. 14).

3 . It is also uncontroverted that there has been widescale non-compliance with statutory time-limits across many regions of the country.

4 . What is directly in issue in these proceedings is how extensive the AON under Part 2 of the 2005 Act must be and more specifically, whether it entails a diagnostic requirement. The response to this question impacts on the ability of the respondent to comply with statutorily prescribed time-limits for the AON. An initial or preliminary assessment is obviously less resource intensive and therefore easier to deliver quickly but is also less complete. A fuller assessment, such as might be required in the diagnosis of a disability like autism, may require the involvement of specialist and different disciplines and be more resource intensive.

5 . To understand the genesis of the issue confronted in these proceedings, some background is required. While the evidence suggests that the practice under the 2005 Act in relation to the conduct of AON has not been uniform in all areas of the country, it supports a conclusion that until a change in approach directed by the respondent in 2020, it was normal practice to complete a full assessment involving a wide range of disciplines for the purpose of an AON report. Where full and comprehensive assessments were completed, however, they could be resource intensive depending on the circumstances of each individual case. In a significant number of cases the statutory time period fixed for completing the AON was not respected and this in turn led to delays in completing AON and associated litigation.

6 . In order to ensure consistency in AON and adherence to statutory time-frames and presumably thereby also reduce the risk of exposure to litigation, the respondent developed a Standard Operating Procedure (SOP) which was implemented from January, 2020. The SOP provides for a preliminary or triage type assessment instead of the full assessments which had previously been carried out. Under the SOP, the assessment is referred to as a “ Preliminary Team Assessment”. This truncated form of assessment is considered by the respondent to meet the requirements for an AON under Part 2 of the 2005 Act.

7 . Crucially, the newly adopted SOP expressly provides that diagnosis is not required under the Part 2 assessment process and provides as a guideline that the preliminary team assessment should take 60 to 90 minutes. The new SOP applied to the two assessments in the cases before me, both of which were concluded in the indicated time-frame of 90 minutes and both of which concluded without diagnosis of the child's condition.

8 . Not surprisingly, the terms of the new SOP, which has been applied to all assessments of need since the 15 ^th January 2020, are controversial because the new approach signalled in them to AON nationally results in the delivery of a preliminary or triage type assessment without diagnosis instead of the full comprehensive assessment which frequently included diagnosis hitherto.

9 . At the heart of the issues I am required to determine in these proceedings is whether a preliminary or triage type assessment of the type envisaged under the respondent's newly adopted SOP meets the statutory requirements for a Part 2 assessment or is based on an erroneous interpretation of the requirements of Part 2.

THE APPLICATIONS FOR ASSESSMENT OF NEED

10 . The applicants in these proceedings are both young boys of pre-school age.

11 . It is appropriate at the outset to summarise the AON that took place in each of their two cases.

Child “CTM”

12 . At the date of hearing, CTM was 2 years and 11 months old. He has significant physical and cognitive difficulties.

13 . In an affidavit sworn by his mother to ground the proceedings, she says she was advised by a GP and several privately retained therapists that her son was displaying the warning signs for autism. These were identified on affidavit as difficulties in social interaction, communication and a lack of flexible thinking. The applicant's mother was advised by the applicant's GP to apply for a comprehensive AON under the 2005 Act. There is a positive autism history in the applicant's extended family but it has also been suggested that he may have cerebral palsy and he has displayed many of the warning signs.

14 . On the 16 ^th November 2020, the applicant's mother applied for an AON under the 2005 Act. The assessment conducted was identified as “ preliminary”. The assessment was conducted in accordance with the newly adopted SOP.

15 . It was comprised of a clinical assessment of CTM completed by a speech and language therapist and a physiotherapist. The assessment was in the form of a 30 minute phone interview with his mother and 60 minutes of observed play. No standardised autism diagnostic testing was carried out.

16 . In their...