R.C. v Health Service Executive

• Jurisdiction: Ireland
• Judge: Mr. Justice Charles Meenan
• Judgment Date: 28 November 2022
• Neutral Citation: [2022] IEHC 652
• Court: High Court
• Docket Number: [2021 879 JR]

Between

R.C., D.R. (A Minor Suing by His Mother and Next Friend R.C.)

Applicants

and

Health Service Executive

Respondent

[2022] IEHC 652

[2021 879 JR]

THE HIGH COURT

JUDICIAL REVIEW

Judicial review – Assessment of needs – Diagnosis – Applicants seeking judicial review – Whether the applicants were entitled to a diagnosis in an assessment of needs

Facts: The second applicant was privately diagnosed with Autism Spectrum Disorder and 2p 16.3 Deletion Syndrome. In order to access services, including appropriate schooling and educational services, the first applicant, the mother of the second applicant, required a diagnosis of the second applicant’s condition to be set out in an assessment of needs (AON) under the provisions of the Disability Act 2005. On 1 November 2021 the High Court granted the first applicant leave to apply for certain reliefs by way of judicial review including: an order of mandamus compelling the respondent, the Health Service Executive, to commence and complete a review of the second applicant’s AON, pursuant to the 2005 Act and the Disability (Assessment of Needs, Service Statements and Redress) Regulations 2007 (S.I. No. 263/2007), to include any necessary assessments/re-assessments, within six weeks or other such period considered reasonably by the Court. On 3 December 2021 a review AON was furnished to the first applicant. This AON did not contain a diagnosis by the respondent but rather referred to the diagnosis which the first applicant obtained privately. The applicants submitted that they were entitled to a diagnosis in the AON; this entitlement arose, firstly, under the provisions of the 2005 Act and, secondly, under the mandatory order that had been agreed between the parties. In answer to the submission by the respondent that the review had been carried out under the “Assessment of Need Standard Operating Procedure (Disability Act 2005)”, the applicants relied on the judgment of Phelan J in CTM (A Minor) v The Assessment Officer and HSE [2022] IEHC 131. The respondent submitted that the furnishing of the review of 3 December 2021 rendered the proceedings moot. The respondent also submitted that the case being made by the applicants was outside the grounds upon which leave had been granted and so could not be entertained by the Court. The central submission of the respondent was that this was a “review” not a new or re-assessment of the AON. Reliance was placed on certain provisions of Part 2 of the 2005 Act.

Held by Meenan J that the AON of 3 December 2021 did not contain a diagnosis by the respondent. He held that the whole point of these and two earlier proceedings was that there had been no diagnosis by the respondent of the second applicant notwithstanding a legal obligation to provide one; therefore, it could not be said that these proceedings were moot. Meenan J held that a review of the statement of grounds clearly showed that this application was firmly within the stated grounds. He did not accept the narrow view of the respondent that it was only obliged to carry out a “review” which did not involve an “assessment/re-assessment”. Firstly, he held that this approach flew in the face of the mandatory order of Court which it consented to, which clearly required necessary assessments/re-assessments. Secondly, he held that such completely ignored the content of the correspondence from the applicants which clearly stated that what was required was a diagnosis and the reasons for it. Applying the terms of the judgment of Phelan J to the case, Meenan J held that it was clear that the AON fell short of what was required by the 2005 Act. Meenan J noted that the respondent was at all times aware that a private diagnosis of the second applicant would not be sufficient for services appropriate to his needs to be made available; what was required was a diagnosis from the respondent.

Meenan J held that the applicants were entitled to succeed in their application for judicial review.

Application granted.

JUDGMENT of Mr. Justice Charles Meenan delivered on the 28 ^th day of November 2022

Introduction

1 . The Applicant is the mother of the second named Applicant, D.R. D.R. has been diagnosed with Autism Spectrum Disorder (“ASD”) and 2p 16.3 Deletion Syndrome. It should be noted that this diagnosis was obtained privately by the Applicant. The Applicant wishes to access services, including appropriate schooling and educational services for her son.

2 . In order to access the required services, the Applicant requires a diagnosis of D.R.'s condition to be set out in an Assessment of Needs (AON) under the provisions of the Disability Act 2005 (the Act of 2005). One might have assumed that obtaining such a diagnosis would not be an insuperable difficulty for the Applicant to obtain from the Respondent, but this is not the case. These are the third set of proceedings that the Applicant has been required to bring to obtain a diagnosis from the Respondent, a diagnosis that has already been given by a suitably qualified professional not working for the Respondent. One can readily understand the following statement in one of the Applicant's affidavits:

“The report is fundamental to (D.R.'s) progress and prognosis. It is the only key to the assistance and services that (D.R.) needs. I have been fighting for (D.R.) since 2018 when he was four years old. I am consumed and exhausted by it. It should not be this way. I am not asking for anything extraordinary. All I ask is that (D.R.) is properly assessed and that he be provided with the services indicated by that assessment within a reasonable timeframe.”

Legal Background

3 . The Applicant firstly applied for an AON in December 2016. The Report was issued in January 2018. A finding of disability was made in the AON. The Report stated:

“(D.R.) remains “at risk” for the development of ADHD and requires intervention & monitoring over time.”

This AON Report stated that it was to be reviewed on 19 January 2019. This did not occur and the Applicant issued proceedings compelling the Respondent to do so. These were the first Judicial Review proceedings.

4 . The first Judicial Review proceedings were compromised, resulting in a Court order made on consent on 18 December 2019 stating:

“The Court doth grant an Order of Mandamus compelling the Respondent to commence and complete a Review of the second named Applicant's Assessment of Need, pursuant to the Disability Act 2005… to include any necessary assessments/re-assessments, within 9 weeks…” (emphasis added).

I have added emphasis to this part of the agreed Court order and it should be looked at in the context of the stance taken by the respondent in these proceedings.

5 . A review of the AON was given on 19 February 2020. However, no adequate diagnosis was given. The Applicant took the view that this was in breach of the agreed Court order “to include any necessary assessments/re-assessments”. The second set of Judicial Review proceedings were issued in June 2020. These proceedings were struck out on consent in February 2021. The Applicant believed that a fresh review of D.R.'s AON was imminent. It should be noted that a letter was received from the Respondent outlining that the Applicant's privately obtained diagnosis of D.R. would be accepted.

6 . Unfortunately, matters did not proceed as the Applicant had anticipated. By letter dated 13 August 2021 the Applicant's solicitors wrote to the solicitors instructed by the Respondent as follows:

“You will recall, that this case was struck out of the High Court judicial review list in February of this year on the basis, inter alia, that a fresh review was imminent. No review has yet taken place, in breach of the statutory timeframe and the understanding reached between the parties six months ago. This is unacceptable.

Please confirm within fourteen days of today's date the timeframe envisaged for the provision of the review and any appropriate assessments and/or reassessments, failing which further proceedings will issue and this letter used to fix costs against the HSE.”

This letter was responded to by the Respondent as follows on 16 August 2021:

“It appears to us that your client may be under some misapprehension in respect of the striking out of the above Judicial Review in February 2021. No agreement was made to the effect that (D.R.) was entitled to nor would receive any further Assessment of Need Review.

Following discussions between Counsel it was agreed that our client would provide a letter confirming that the HSE accepted the diagnosis of ASD as a valid record of his diagnosis and that the NDT would assist with recognition of this child's diagnosis by the SENO or any other party as required”.

7 . The Applicant then initiated the instant Judicial Review proceedings, the third of such proceedings. On 1 November 2021 this Court granted the Applicant leave to apply for certain reliefs by way of Judicial Review including:

“An order of Mandamus compelling the Respondent to commence and complete a Review of the second named Applicant's Assessment of Need, pursuant to the Disability Act 2005 and the Disability (Assessment of Needs, Service...