HSE must specify when services will be provided to children with disabilities, Supreme Court says
Compliance by the HSE with its obligations under the Disability Act 2005 involves setting out and implementing 'measurable' actions, the court said.
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Although there is 'nothing objectionable' about the HSE's Individual Family Support Plan (IFSP) model for delivering services to children with disabilities, the court said the HSE must ensure it complies with its obligations and with the legislature's intention to give 'enforceable rights' to individuals.
The five-judge court on Wednesday rejected the HSE's appeal against the High Court's finding that it failed to comply with its legal obligations in relation to an eight-year-old girl assessed as having autism spectrum disorder and global developmental delay.
Giving the judgment, Ms Justice Iseult O'Malley said the statutory process obliges the HSE to specify what services will be provided to children with disabilities and when they will be provided.
Delays in assessments of need are a 'recurring' theme in cases before the courts, she noted. There was a delay of more than 18 months in assessing the girl and further delays in providing her with therapy services identified as being her health needs.
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The High Court, in finding the statutory requirements were not complied with, said the only service for the girl where the HSE specified a time frame for delivery was the development of an IFSP, but that was not a 'clinical service'.
The core issues in the HSE's appeal were whether the 2005 Act required that each health service identified in an assessment report should be specified in a service statement; and whether the statutory requirements regarding the content of service statements were breached by identifying the development of the IFSP as a 'specified' health service.
Ms Justice O'Malley found, while not every service recommended in an assessment report must be included in the service statement, there must be 'a rational connection' between the content of both.
On the second issue, she ruled an IFSP is a 'health service' within the meaning of section seven of the 2005 Act.
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She said the commencement of an IFSP is the starting point for delivery of services and the plan continues as the evolving basis for development of further goals.
The legislature had intended a process through which particular services and dates would be 'clearly identified' in the service statements, with a legal right to seek implementation through the courts if necessary.
If each service statement only specifies a start date for the IFSP process, the right may appear reduced as the only complaint apparently possible would be the failure to commence that process, she said.
The HSE can, within the IFSP model, comply with its obligations to set out and implement measurable actions, she said.
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The first service statement should 'spell out' what will be involved in the IFSP process.
Reviews of the service statement also required greater detail, including an overall assessment of the goals set out, whether those have been achieved, identification of overall goals for the near future and the work to achieve those, the judge said. That might mean 'relatively frequent' reviews.
If the only service specified in the first service statement is an IFSP, the HSE should record that the needs specified in the assessment of need have not been included. This was necessary under the HSE's obligation to assist in measuring aggregate needs.
In the case of the girl, represented by Derek Shortall SC and Colin Smith SC, instructed by solicitor Wendy Lyon, she said the original service statement and the first review statement did not meet these criteria.
The original statement had been superseded and it seemed likely there would have been further reviews, she noted.
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