Commission appears as amicus curiae in important case
The Irish Human Rights and Equality Commission (‘the Commission’) welcomes the decision delivered by the Court of Appeal today, in an important case involving the HSE’s Standard Operation Procedures (SOPs) for an Assessment of Needs of a child with a disability. The Commission was joined to the case in its amicus curiae (friend of the court) function.
The case concerned a child who was referred for an Assessment of Needs under the Disability Act 2005 following the HSE’s new SOP, operational since January 2020. Under the HSE’s new SOP, the HSE identified the child as having a disability, but declined to diagnose the nature and extent of it, saying that the Disability Act 2005 did not require them to do so. Instead, the HSE referred the child for supports and services.
The Applicant’s parents were concerned that their child had Autism Spectrum Disorder. They contended that the HSE’s approach resulted in an incomplete assessment that would have a negative impact on the child.
In its submissions to the Court, the Commission argued that it was crucial that the 2005 Act provisions be interpreted in a manner consistent with fundamental rights and in particular the State’s obligations under the CRPD. Ms. Justice Whelan described the Commission’s contention that it was not necessary for the Court to depart from the clear and succinct language of the Act to construe it properly as “correct”.
In her judgment, Ms Justice Whelan said:
“The 2020 SOP to a very significant extent undermines the rights of persons with a disability (…) An assessment of need carried out pursuant to section 8 of the 2015 cannot be regarded as complete in the absence of a diagnostic assessment of the child’s disability unless in the reasonable opinion of the assessment officer such a diagnostic assessment is not required”.
Describing the introduction of the HSE’s SOP as having been a “sea change”, Ms Justice Whelan said that it had placed “very substantial and ultimately impermissible obstacles on the path of the individual attempting to exercise their right to obtain a valid independent assessment of need (…) This is particularly acute in circumstances where the individual in question is a child.”
Sinéad Gibney, Chief Commissioner of the Commission stated:
“ We welcome the ruling today as an important landmark decision that we hope will result in certainty and clarity for disabled children and their families.
The Court has found that a diagnosis, which is required in all but the most exceptional cases, is required by law, and that the HSE’s SOP breached the rights of the disabled child at the heart of this case.
We hope that they will now be able to get the Assessment of Needs that is so important to them, and we wish them and their family well.”
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Sarah Clarkin, IHREC Communications Manager,
01 8592641 / 087 4687760
sarah.clarkin@ihrec.ie
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Irish Human Rights and Equality Commission
The Irish Human Rights and Equality Commission is an independent public body, appointed by the President and directly accountable to the Oireachtas. The Commission has a statutory remit set out under the Irish Human Rights and Equality Commission Act (2014) to protect and promote human rights and equality in Ireland, and build a culture of respect for human rights, equality and intercultural understanding in the State.
The Irish Human Rights and Equality Commission is Ireland’s national human rights institution and is recognised as such by the United Nations. The Commission is also Ireland’s national equality body for the purpose of a range of EU anti-discrimination measures.