Перейти до вмісту
Legal Publications

 Commission Appears as Amicus Curiae in Disability Rights Case

The way the HSE applies the 2005 Disability Act undermines rather than upholds disability rights in Ireland, the Irish Human Rights and Equality Commission (‘the Commission’) has told the Court of Appeal. Appearing as amicus curiae (‘friend of the court’), the Commission stated that the manner in which the HSE carries out the Assessment of Need, which is required  by the Disability Act 2005 is incomplete, as it determines that a person has a disability, but does not provide a diagnosis of the disability. The case of ‘OB’ concerns a boy referred to the HSE for an Assessment of Needs under the Disability Act 2005. The HSE assessed him as having a disability, but stopped short of diagnosing it. OB’s parents are concerned that their son has Autism Spectrum Disorder (' ASD'), and that a lack of a formal diagnosis will see him unable to access vital services, with a potential knock-on effect on his education and social life, and delaying treatment and possible early intervention. The HSE’s approach in this case is in line with its new Standard Operating Procedure (“SOP”) in operation since January 2020 that treats the question of whether a person has a disability under the 2005 Act as separate to the question of whether their presenting behaviours meet the criteria for a particular diagnosis. This case is expected to determine whether the HSE’s SOP meets the full disability assessment requirements of the Disability Act 2005. The Commission’s legal arguments just published state that the HSE’s current interpretation of disability under the Disability Act potentially deprives people of their fundamental rights and is contrary to the UN Convention on the Rights of Persons with Disabilities (CRPD) and Article 42A of the Constitution.  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:
“We’re very concerned that the HSE’s Standard Operating Procedure sidesteps the need for a formal diagnosis in needs assessments. The SOP risks becoming the exact type of societal barrier that the UNCRPD sets out to avoid, with real impacts on people’s lives in terms of access to essential services. “How we view and engage disabled people’s rights cannot, and must not, be reduced to a standalone medical  definition. However, an initial formal diagnosis is crucial in providing necessary and life changing supports for a person's health, educational, workplace, social and other needs.”
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:

The written submissions are made by the Irish Human Rights and Equality Commission in this case are now available at the following link: IHREC-Filed-OB-Amicus-Submissions-dated-12-January-2022-redacted.pdf

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.