J.F. v Health Service Executive

JurisdictionIreland
CourtHigh Court
JudgeMs. Justice Faherty
Judgment Date15 May 2018
Neutral Citation[2018] IEHC 294
Date15 May 2018
Docket Number[RECORD NO. 2017 534 JR]
BETWEEN
J. F., A. F.
(A MINOR SUING BY HIS MOTHER AND NEXT FRIEND, J. F.)
APPLICANTS
AND
HEALTH SERVICE EXECUTIVE
RESPONDENT
K. K., F. C.
AND
HEALTH SERVICE EXECUTIVE
RESPONDENT

[2018] IEHC 294

Faherty J.

[RECORD NO. 2017 534 JR]

[RECORD NO 2017 803 JR]

THE HIGH COURT

Judicial review – Assessments of need – Declaratory relief – Applicants seeking assessment of need – Whether respondent failed to comply with its statutory obligations

Facts: The applicants, in the proceedings bearing record number 2017/534 JR (the first proceedings), on 3rd July 2017, by order of Noonan J, were granted leave to apply to the High Court by way of an application for judicial review for the following reliefs: (i) an order of mandamus compelling the respondent, the Health Service Executive, to commence and/or complete an assessment of need in respect of the second applicant, requested, pursuant to the Disability Act 2005, in May 2016, within thirty days or other such period considered reasonable by the Court; (ii) a declaration that the respondent has failed to comply with its statutory obligations to the first applicant, in the premises that having received a request from the applicants for an assessment of need pursuant to s. 9 of the 2005 Act, the respondent was required, pursuant to the 2005 Act and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007, to commence the assessment of need within three months and complete it within three months after commencement, and if not to be completed within three months of commencement, to specify in writing before the three-month deadline has expired the reasons why and specify a timeframe for completion; (iii) if necessary, a declaration that the statutory complaints process, contained within the 2005 Act is not an adequate or appropriate remedy, in the premises that it runs counter to proper administrative practice and nullifies the timelines set out in s. 9 of the 2005 Act, insofar as it creates further delay and, due to the number of complaints being made, there is a delay in the statutory complaints process itself. An order in similar terms was made by Noonan J on 23rd October, 2017, in respect of the proceedings bearing record no. 2017/803 JR (the second proceedings).

Held by Faherty J that while she was satisfied, given the factual situation of delays in the complaints process of nine months or more, to make an order directing the assessments of need in respect of the minor applicants be completed within a number of weeks, she was not persuaded that a case had been made out for the declaratory relief sought by the applicants. Faherty J found nothing inherently wrong with the remedy provided in the 2005 Act to address a failure on the part of the respondent either to commence or complete an assessment of need.

Faherty J directed that the respondent complete the assessments of need in respect of the minor applicants within a period of six weeks.

Application granted in part.

JUDGMENT of Ms. Justice Faherty delivered on the 15th day of May, 2018
1

The within proceedings are grounded on the admitted failure of the respondent to complete assessments of need in respect of the minor applicants within the statutory timeframe enacted by the Disability Act 2005 ('the 2005 Act') and S.I. No. 263- Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 ('the 2007 Regulations').

2

An assessment of need is an assessment to determine the health and education needs (if any) of a person with a disability and the health services or education services (if any) required to meet those needs. (Section 7 of the 2005 Act).

3

The relevant section of the 2005 Act has been commenced in respect of children under the age of five. The assessment process is open to any child under that age, and to all who were on the date of commencement of the 2005 Act, aged under five. This is as a result of the decision in HSE v. Dykes [2009] IEHC 540: -

'The right to an assessment of needs under s 9 applies to all children under 5 as of 1 June 2007 and, thereafter, to all children under 5.'

4

It is therefore a scheme which is open to the (infant) public at large, where certain persons, inter alios a parent/guardian, are of the opinion that a child will have a disability: s.9 of the 2005 Act. The process of assessment then determines whether a child has a disability. As regards the present cases, it is suspected by their respective parent, that the infant applicants have autism.

5

The importance of early intervention, where autism is diagnosed, was comprehensively addressed in O'C v. Minister for Education [2007] IEHC 170 where Peart J., in the context of a claim for damages, in a case where the facts pre-dated the statutory time frames set out in the 2005 Act, held as follows:

'That duty extended at that stage to completing a diagnosis within a time-frame which was reasonable given his age and the recognised importance of early intervention should a positive diagnosis be made in due course. The fact that diagnosis was not completed until the end of November 2002 and reported on the 9th December 2002 means a delay from referral to diagnosis of about seven months. That is a long time in the plaintiff's life at that stage. It follows in my view that a delay of seven months in formal diagnosis is an unreasonable delay, and does not adequately address the duty of care owed.

...The diagnosis is the only key which has the potential to unlock the package of ameliorating measures to which the plaintiff would be entitled after diagnosis. In my view it was foreseeable by them that delay in diagnosis would as a matter of probability impact adversely on the rate at which any deficits would be reduced, and that his progress would be delayed as a result.

...

It was known by all concerned from that point onwards that early intervention was essential. It was known that lack of early intervention at that sort of age has adverse implications for deficit reduction. While accepting the reality facing the HSE personnel that they did not have sufficient resources to address adequately the demand on services, this alone is insufficient in my view to reduce the scope of the duty of care given the extreme vulnerability of the children with whom they are dealing. The duty of care in relation to such vulnerable and dependent children who are in need of urgent attention places a particular onus upon those with responsibility, to provide relevant assistance within reasonable time-frames. It is just and reasonable that this be so given the nature of autism.'

6

The timeframe for carrying out assessments of need is enacted in the 2005 Act and in the 2007 Regulations.

7

Section 9(5) of the 2005 Act provides: -

'Where an application under subsection (1) or a request under subsection (4) is made, the Executive shall cause an assessment of the applicant to be commenced within 3 months of the date of the receipt of the application or request and to be completed without undue delay.'

8

Article 9 of the 2007 Regulations states that:

'The Executive shall commence the assessment process as soon as possible after the completed application form has been received but not later than three months after that date'

9

'Undue delay', as referred to in s.9(5) of the 2005 Act is not defined in the Act but Article 10 of the 2007 Regulations provides: -

'The Executive shall complete the assessment and forward the assessment report to the Liaison Officer within a further three months from the date on which the assessment commenced, save for in exceptional circumstances, when the assessment will be completed without undue delay. In circumstances where the assessment will not be completed within three months of the commencement of the assessment, the Executive shall specify in writing, before the three month deadline has expired, to the individual concerned the reasons why it will not be completed within the three month period and shall specify a timeframe within which it is expected the assessment will be completed.'

10

Article 5 of the 2007 Regulations provides:

'The Executive shall process applications for assessment in order of the date on which they are received by the Executive. Where two or more applications are received on the same date then they shall be processed in alphabetical order of the surname of the applicant.'

11

A statutory complaints procedure is also enacted in the 2005 Act. As regards the present applications, among the possible complaints envisaged to be dealt with by the complaints procedure is where there has been delay in the commencement or completion of an assessment of need. Section 14 of the Act provides: -

'(1) An applicant may, either by himself or herself or through a person referred to in section 9 (2), make a complaint to the Executive in relation to one or more of the following:

(a) a determination by the assessment officer concerned that he or she does not have a disability;

(b) the fact, if it be the case, that the assessment under section 9 was not commenced within the time specified in section 9 (5) or was not completed without undue delay;

(c) the fact, if it be the case, that the assessment under section 9 was not conducted in a manner that conforms to the standards determined by a body referred to in section 10;

(d) the contents of the service statement provided to the applicant;

(e) the fact, if it be the case, that the Executive or the education service provider, as the case may be, failed to provide or to fully provide a service specified in the service statement.

(2) A complaint under subsection (1) shall be made by the applicant concerned or a person referred to in section 9 (2) as soon as reasonably may be after the cause of the complaint has arisen and in any case within such time (if any) as may be prescribed under section 21.'

12

The complaints procedure is set out in...

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