HSE’s Disability Assessment for Boy Challenged in Court of Appeal

Commission to Appear as Amicus Curiae in Disability Rights Case

The Irish Human Rights and Equality Commission (‘the Commission’) has been granted leave from the Court of Appeal to exercise its amicus curiae (‘friend of the court’) function in a case of a young boy with a disability.

The case concerns a boy, anonymised in the case as ‘OB’ who was referred to the HSE for an Assessment of Needs under the Disability Act 2005. The boy’s parents contend that the Assessment of Needs the HSE conducted was incomplete because, while it determined that OB has a disability and referred him to supports and services appropriate to his presenting behaviours, it did not make a specific medical diagnosis nor did it name the disability.

This situation arose because the HSE’s new Standard Operating Procedure (“SOP”) in operation since January 2020, treats the question of whether a child’s presenting behaviours meet the criteria for a particular diagnosis as a separate matter to the question as to whether the child has a disability as defined in the Act.

The case, OB v. HSE, is expected to determine whether the HSE’s SOP meets the full disability assessment requirements of the Disability Act 2005.

In seeking to appear as Amicus Curiae, the Commission informed the Court of Appeal that the case raises questions about the SOP’s compliance with Ireland’s obligations under the UN’s Convention on the Rights of Persons with Disabilities (CRPD).

The Commission brings significant experience to this case, acting as it does as the Independent Monitor for Ireland’s obligations under the CRPD.

Sinéad Gibney, Chief Commissioner of the Irish Human Rights and Equality Commission stated:

“Having your disability recognised is an integral part of the assessment of needs process, which can open the door to access vital services and supports.

“The kind of medical assessment and medical definition of disability under the 2005 Act unfortunately doesn’t consider the wider societal structures that disabled people deal with. The reform of that mind-set and approach must be part of our wider discussion beyond the courtroom, to progress how we as a society view and engage with disability.

“We hope that the Court will clarify whether the HSE’s relatively new SOP complies with its obligations under the Disability Act 2005, under the CRPD and with its obligations to disabled children in the Assessment of Needs process.

 “The Commission will bring to bear our own expertise on the legal rights of persons with disabilities and Ireland’s national and international obligations to disabled people to assist the court in this important case.”

ENDS/

For further information, please contact:

Brian Dawson, IHREC Communications Manager,

01 8589601 / 087 0697095

bdawson@ihrec.ie

Follow us on twitter @_IHREC

Editor’s Note

As the Irish Human Rights and Equality Commission is now formally involved in the proceedings, we are precluded from making any further comment as the matter is before the Court.

Where written submissions are made by the Irish Human Rights and Equality Commission to the superior Courts in amicus curiae cases they will be made available on www.ihrec.ie after the case has been heard.

The amicus curiae function of the Irish Human Rights and Equality Commission.

The Commission’s functions under the Irish Human Rights and Equality Commission Act 2014 include that of applying for liberty to appear as an amicus curiae (friend of the court) before the superior courts in proceedings that involve, or are concerned with, the human rights or equality rights of any person.

Section 10 of the Irish Human Rights and Equality Commission Act sets out the functions of the Commission and Section 10(2)(e) provides that the IHREC shall have a function:

“to apply to the High Court or the Supreme Court for liberty to appear before the High Court or the Supreme Court, as the case may be, as amicus curiae in proceedings before that Court that involve or are concerned with the human rights or equality rights of any person and to appear as such an amicus curiae on foot of such liberty being granted (which liberty each of the said courts is hereby empowered to grant in its absolute discretion).”

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.

 

 

 

 

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