M and Another v Health Service Executive, B v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Conleth Bradley
• Judgment Date: 24 October 2024
• Neutral Citation: [2024] IEHC 621
• Court: High Court
• Docket Number: Record No. 2022/775JR

Between/

HM and AM (A Minor Suing by His Mother and Next Friend HM)

Applicants

and

Health Service Executive

Respondent

Between/

AB and CM (A Minor Suing by Her Mother and Next Friend AB)

Applicants

and

Health Service Executive

Respondent

[2024] IEHC 621

Record No. 2022/775JR

Record No. 2022/717JR

AN ARD-CHÚIRT

THE HIGH COURT

Assessment of need – Judicial review – Statutory interpretation – Applicants seeking orders of mandamus and declaratory relief – Whether the Disability Act 2005 and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 are interpreted in order to give effect to a remedial purpose

Facts: In AB & CM (a minor) v HSE (2022/717 JR), the applicants sought an order of mandamus compelling the respondent, Health Service Executive (HSE), to commence and complete a review of the second applicant’s assessment of need, pursuant to the Disability Act 2005 and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007, to include any necessary assessments/re-assessments within six weeks or other such period considered by the High Court to be reasonable. In those proceedings and in HM & AM (a minor) v HSE (2022/775 JR) the applicants sought: a declaration that the HSE had failed to comply with its statutory obligations to the applicants pursuant to the 2005 Act and the 2007 Regulations (in particular Article 11), in the premises that having completed assessments of need in respect of the second applicants on 17th December 2020 and 15th September 2020 respectively, and having stated, in compliance with Article 11 in the assessment reports that the said assessments were to be reviewed on 17th December 2021 and 15th September 2021, the HSE was obligated to commence and complete the reviews within a reasonable period of time after those dates, whether by virtue of a general statutory obligation, in particular under s. 8(7)(iv) of the 2005 Act, or specifically in the circumstances prevailing in the proceedings. The applicants preferred a review of the assessment (as contemplated by s. 8(7)(iv) of the 2005 Act), whereas, the HSE suggested that a further assessment may be carried out (as per ss. 9(7) and 9(8) of the 2005 Act).

Held by the High Court (Bradley J) that this difference of opinion was unfortunate, having had regard to the observations of the Court of Appeal in AB v HSE & Ors [2023] IECA 275 (per Collins J at para. 10), to the effect that the provisions in Part 2 of the 2005 Act providing for (a) the review of assessments or (b) the carrying out of further assessments, only serve to emphasise, particularly where children are concerned, first, the paramountcy of the (initial) assessment carried out by assessment officer in clearly and comprehensively identifying (i) the nature and extent of the relevant disability and (ii) the needs and services required and, second, the fluidity of these matters and the fact that disability and diagnosis may develop with consequences for the provision of services (including new services) to meet those changing needs. Bradley J did not consider that the applicants had an enforceable right pursuant to Part 2 of the 2005 Act, including s. 8(7)(iv), and the 2007 Regulations, to obtain an order, by way of an application for judicial review, obliging the HSE to conclude or complete a review within a reasonable period of time after 15th September 2021 and 17th December 2021 (being the review dates referred to in the assessment reports).

Bradley J refused the orders of mandamus and declaratory relief sought by the applicants in AB & CM (a minor) v HSE (2022/717 JR) and refused the declaration sought by the applicants in HM & AM (a minor) v HSE (2022/775 JR) and AB & CM (a minor) v HSE (2022/717 JR).

Applications refused.

JUDGMENT ofMr. Justice Conleth Bradley, delivered on the 24 ^th day of October 2024

INTRODUCTION

Preliminary

1 These applications for judicial review concern a discrete question of statutory interpretation in relation to Part 2 of the Disability Act 2005 (“DA 2005”) which deals with the assessment of need, services statements and redress and, in particular, the consequences of an independent assessment of need carried out under section 8 of the DA 2005.

2 The applicable regulatory regime is the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (S.I. No. 263 of 2007) (“the 2007 Regulations”).

3 Whereas Part 2 of the DA 2005 establishes a legally enforceable framework for the assessment of the needs of, and the delivery of services to, persons with a disability, the applicants' arguments in these judicial review applications go further. They seek an interpretation of section 8(7)(iv) of the DA 2005 to the effect (i) that there is an enforceable statutory right of ‘ review’ of the assessment contained in respective Assessment Reports carried out on the second named applicant children in both cases, and that this determination will have the consequence of (ii) requiring the Health Service Executive (“HSE”) to commence (in one case) and conclude (in both cases) that statutory ‘ review’.

4 In addition to its procedural objection that the applicants' case is limited to that for which ‘leave’ for judicial review was granted, the HSE's response, in brief, is that the proper interpretation of the DA 2005, (i) does not establish any such enforceable right of ‘ review’; and (ii) offers, rather, the applicant children, in each case, a more suitable remedy through the provision of a new assessment (as per section 9 of the DA 2005), rather than a review (as per section 8 of the DA 2005).

5 Whilst broadly similar arguments arise in each case, there are some important factual differences (and developments) which impact on the precise nature of the arguments made and reliefs sought in each case.

6 In HM & AM (a minor) v HSE (Record Number 2022/775 JR), for example, in circumstances where a review has commenced, it is argued on behalf of the applicants that section 8(7)(iv) of the DA 2005 (which provides that an ‘Assessment Report’ shall set out the findings of the Assessment Officer concerned together with determinations in relation to a statement of the period within which a review of the assessment should be carried out) encompasses an enforceable right to have the review completed, i.e., the corollary of that right being an obligation on the HSE to conclude or complete a review within a reasonable period of time after 15 ^th September 2021 (being the review date referred to in the Assessment Report).

7 In AB & CM (a minor) v HSE (2022/775 JR), it is argued on behalf of the applicants that section 8(7)(iv) of the DA 2005 (again, which provides that an ‘Assessment Report’ shall set out the findings of the Assessment Officer concerned together with determinations in relation to a statement of the period within which a review of the assessment should be carried out) encompasses an enforceable right of review, i.e., the corollary of that right being an obligation on the HSE to conduct ( i.e., commence and complete) a review by in or around 17 ^th December 2021 ( i.e., within a 12 month period from 17 ^th December 2020 which was the date that the Assessment Report issued) or within a reasonable period of time after 17 ^th December 2021.

8 Derek Shortall SC and Leanora Frawley BL appeared for the applicants; David Leahy SC and Cormac J Hynes BL appeared for the HSE.

Background facts: HM & AM (a minor) v HSE (Record No. 2022/775 JR)

9 The relevant facts, insofar as the issues which I have to consider are concerned, are as follows: AM is 9 years old. An Assessment Report dated 15 ^th September 2020 indicated a review date of 15 ^th September 2021.

10 The (first) service statement dated 23 ^rd October 2020 specified referral to the local school-age disability team for multi-disciplinary supports and indicated a review date, for that purpose, in October 2021. This was subsequently reviewed and amended on 6 ^th October 2021, with a new review date of 15 ^th October 2022 being specified.

11 By letter dated 1 ^st March 2022, the applicants' solicitor sought a review of the Assessment Report, with specific requests for assessment for ADHD, Genetic Testing, Tourette's and Dyslexia being made.

12 The Assessment Officer liaised with HM and with other clinical services and the National Council for Special Education and engaged a private provider to assist in assessing AM's health needs. The Service Statement was further reviewed on 9 ^th June 2023 and, following completion of an Individual Family Support Plan on 23 ^rd August 2023, a further review of the service statement was carried out on 20 ^th October 2023 which specified a follow-up with the Child and Adolescent Mental Health Services (CAMHS) on the question of ADHD.

13 The parties accept that, in this case, a review was commenced and was, at the time of the hearing of this application in June 2024, close to completion. The change of circumstances relates to an outstanding psychiatric report being fed into the reporting process.

Background facts: AB & CM (a minor) v HSE (2022/775 JR)

14 In this case, CM is 12 years old and was determined to have a disability in an Assessment Report dated 17 ^th December 2020, which was prepared during the COVID-19 pandemic and indicated a review date of 17 ^th December 2021.

15 The (first) service statement dated 13 ^th April 2021 specified referral to Primary Care Occupational Therapy, Speech and Language Therapy and Dietician Services in Kildare and West Wicklow and indicated a review date of 12 months from its date of issue.

16 By letter dated 16 ^th February 2022, the applicant's solicitors sought a review of the Assessment Report and stated that there was limited engagement by Child and Adolescent Mental Health Services (“CAMHS”), dietetics and OT services.

17 By letter dated 22 ^nd February 2022, the Assessment Officer...