O'Donoghue v Minister for Health

• Jurisdiction: Ireland
• Judgment Date: 01 January 1996
• Date: 01 January 1996
• Docket Number: [1992 No. 75 J.R.]
• Court: High Court

High Court

[1992 No. 75 J.R.]

O'Donoghue v. Minister for Health

Paul O'Donoghue, a minor suing by his mother and next friend Marie O'Donoghue

Applicant

and

The Minister for Health, The Minister for Education, Ireland and The Attorney General

Respondents

Cases mentioned in this report:—

Brown v. Board of Education (1954) 347 U.S. 483.

Crowley v. Ireland [1980] I.R. 102.

Goldberg v. Kelly (1969) 397 U.S. 254.

Honig v. Doe (1988) 484 U.S. 305.

Landers v. The Attorney General (1973) 109 I.L.T.R. 1.

McDaid v. Judge Sheehy [1991] 1 I.R. 1; [1991] I.L.R.M. 250.

Mills v. Board of Education of District of Columbia (1972) 348 F. Supp. 866.

Murphy v. Roche [1987] I.R. 106.

Pennsylvania Association for Retarded Children v. Commonwealth of Pennsylvania (1971) 334 F. Supp. 1257.

Ryan v. The Attorney General [1965] I.R. 294.

Constitution - Personal rights - Education - State's obligation to provide for free primary education - Applicant profoundly mentally handicapped - Whether State obliged to provide for his primary education - Whether applicant educable - Whether such education as could be given properly to be described as "primary education" - Applicant given place in special school after institution of proceedings - Whether proceedings moot - Adequacy of provision - Constitution of Ireland, 1937, Article 42, s. 4.

Judicial review.

At the time of the institution of the proceedings, the applicant was aged seven years, and resided in Cork with his mother. He was born a healthy infant on the 2nd November, 1984. At the age of eight months he contracted Reye's Syndrome and was subsequently diagnosed as suffering from residual spastic quadriplegia and profound mental handicap.

From May, 1987, the applicant was provided by the State with physiotherapy and occupational therapy once a fortnight for about one hour, and from November, 1987, he was further provided with a place once a week in a group of children receiving conductive education. While the other children in the group not suffering from mental handicap were provided with free pre-school education, the applicant was not.

On three occasions applications were made on the applicant's behalf to have him admitted as a full time pupil in the Cope Foundation, Cork, a voluntary organisation in receipt of State funds which provided residential and day-care services for children with mental and physical handicap. These applications were refused on the grounds that no vacancies were available. He was, in addition, found unsuitable for admission to a pre-school attached to the Cork Spastic Clinic.

As no facilities were available to the applicant, his mother cared for him at home. She devoted an hour and a half to the Peto methods of instruction and, in addition, arranged for him to attend local Montessori schools for an hour once a week. She further arranged, with other parents of disabled children, for a Hungarian teacher of the Peto method of conductive education to come to Ireland to work with the children. All of the costs thereof were shared by the parents. The applicant also attended, during the year 1990-1991, private music therapy classes for an hour a week. His mother stated in evidence that the applicant enjoyed and benefited from these activities, and was making progress as a result of them.

In 1990, following representations by his mother, the applicant was permitted to attend classes on a concessionary basis at the Spastic Clinic pre-school. However, while the other children attending the school, who were classified as mildly to moderately mentally handicapped, received a full-time education at the clinic, with free transport to and from school, the applicant was only admitted to classes for a total of five and subsequently six hours a week, and his mother had to provide transport for the applicant to and from the classes.

On the 24th February, 1992, on the ex parte motion of the applicant, the High Court (O'Hanlon J.) granted the applicant leave to apply by way of judicial review for, inter alia, the following reliefs:—

• 1. An order of mandamus compelling the first and second respondents to provide for free primary education for the applicant;

• 2. a declaration that in failing to provide for free primary education for the applicant and in discriminating against him as compared with other children, the respondents had deprived him of constitutional rights under Articles 40 and 42 of the Constitution of Ireland, 1937, and

• 3. damages for breach of his constitutional rights.

Following the filing of a statement of opposition dated the 26th May, 1992, the case came on for hearing, on foot of notice of motion dated the 11th March, 1992, on the 23rd, 24th and 30th June and the 1st, 2nd, 3rd and 7th July, 1992.

Article 42, s. 4 of the Constitution of Ireland, 1937, provides, inter alia, that "the State shall provide for free primary education".

The applicant was born on the 2nd November, 1984. At the age of eight months he contracted an illness which left him physically disabled and profoundly mentally handicapped. He resided in Cork with his mother.

The Cope Foundation in Cork was a voluntary organisation in receipt of State funds, which provided residential and day-care services for disabled children. It was the only institution in the Cork area which was equipped to offer full-time educational facilities to children with both physical disability and profound mental handicap. When the applicant reached school age, his mother applied on a number of occasions to have him admitted there as a pupil. These applications were refused, on the grounds that there were no vacancies, and the applicant was placed on a waiting list. The applicant's mother cared for him at home and arranged for him to be educated privately at her own expense. The applicant benefited from and enjoyed the teaching which he received.

In 1992 the applicant instituted proceedings against the respondents, seeking,inter alia, an order of mandamus compelling the first and second respondents to provide him with free primary education. In May, 1992, the applicant was informed that he was to be provided with a place at the Cope Foundation the following September, where he would be educated in a group of twelve pupils by one teacher, assisted by care-workers. He was further informed that he would be provided with day-care facilities there until that time, and that he would be provided with free transport to and from the Foundation so far as was required.

In the High Court, it was submitted on behalf of the respondents, first, that such efforts as were made to educate profoundly mentally handicapped children were of no real or lasting benefit to them, and that the applicant was effectively ineducable; secondly, that the education for which the State was obliged to provide pursuant to Article 42, s. 4 of the Constitution of Ireland, 1937, was education of a scholastic nature as exemplified in the curriculum for national schools, which could be of no benefit to the applicant; thirdly, that such training as could be provided for the applicant and as might benefit him could not be described as education or primary education, and fourthly, that the applicant, having been provided with a place at the Cope Foundation, had achieved the essential relief sought and that the instant proceedings were, accordingly, moot.

Held by O'Hanlon J., in declaring, inter alia, that the respondents, insofar as they had failed to provide for his free primary education, had deprived the applicant of constitutional rights arising under Article 42 of the Constitution and in awarding the sum of £7,645.71 by way of damages, 1, that having regard to the provisions of Article 42, s. 4 of the Constitution of Ireland, 1937, there was a constitutional obligation upon the State to provide for free, basic, elementary education of all children.

2. That such education consisted in giving each child such advice, instruction and teaching as would enable him to make the best possible use of his inherent and potential capabilities, physical, mental and moral, however limited these capacities might be.

Dictum of Ó Dálaigh ó dálaigh C.J. in Ryan v. The Attorney General[1965] I.R. 294 applied.

3. That having regard to the evidence, which was to the effect that the applicant had made good progress and could make further progress, the applicant was not ineducable.

4. That the curriculum advocated for schools for profoundly mentally handicapped children was directed towards the promotion of the child's physical, intellectual, emotional, social, moral and aesthetic development; that this curriculum differed only in degree from the curriculum used in schools for the mildly and moderately handicapped, which schools were integrated into the national school system; and that education for profoundly handicapped children could, accordingly, correctly be described as "primary education" within the meaning of that phrase in Article 42, s. 4 of the Constitution.

5. That it had been established on a world-wide basis for many years that children suffering from profound mental handicap could benefit from formal education. Accordingly, there was a constitutional obligation upon the State to provide for free primary education for profoundly handicapped children in as full and positive a manner as it had done for other members of the community.

Dictum of Ó Dálaigh ó dálaigh C.J. in Ryan v. The Attorney General[1965] I.R. 294 applied.

6. That while the respondents had granted the applicant a place at the Cope Foundation since the institution of the proceedings, this place was granted to him as a concession and could be withdrawn at any time at the discretion of the respondents.

7. That the facilities which had been provided to the applicant at the Cope Foundation were inadequate, having regard, inter alia, to the teacher/pupil ratio, the hours of instruction, and the age of commencement, continuity and duration of education...