11/11/2021 Briefing

This is a serious case concerning ongoing failure to provide care to an adolescent child with a disability. Despite knowledge of the child’s deteriorating health since 2019 and the emergence in spring/summer 2020 of an increasingly apparent need for residential treatment, no residential treatment was provided by the HSE. The child’s situation deteriorated culminating in what the Court described as her ‘containment’ in a hospital room off a busy emergency department ward of a regional hospital in August 2021 where the Court found she had been left to ‘languish’ and where she remained at the time of the delivery of the judgment in October 2021.  During this stay the child had not been outside for fresh air and had only recently been given TV and internet access.

The failure to provide appropriate care prompted the child’s representatives to take an action against the HSE seeking certain declarations from the court relating to her treatment by the HSE including declaratory relief that her continued placement in the hospital was not in her best interests and/or detrimental to her welfare and breached her constitutional and human rights. A declaration was also sought that the HSE had failed to discharge its statutory obligations.

The HSE opposed the application for judicial review. Referring to a range of services which had been and continue to be made available to the child’s family, the HSE expressed its full commitment to providing services but argued that it was not within the gift of disability services to provide the child residential service within the immediate timeframe required. It was submitted that meeting the short term needs of the child was a matter for the Child and Family Agency, a notice party to the proceedings.

 

High Court found that the HSE had acted “unreasonably” and at times “irrationally”

The Court was heavily critical of the failings by the HSE in the discharge of its statutory obligations which culminated in her containment in a completely unsuitable environment which did not address her needs.

The Court undertook a detailed analysis of the HSE’s statutory duties and concluded that section 7 of the Health Act 2004 relates to the promotion and protection of the health and welfare of “the public” and not an individual member of the public.

The Court recognised that the HSE has a duty to perform its functions and exercise its powers lawfully and in a rational and reasonable manner. In this regard, the Court cited multiple incidences in which it concluded the HSE had acted in a manner that was unreasonable and at points crossed the line into irrationality. One such instance was the occasion when the HSE contacted the child’s parents to ask that they collect her from her hospital stay the very day they had reached an agreement that the HSE would continue providing accommodation for the child for an agreed period and where the HSE’s own professional opinion was that it was considered unsafe for the child to return home. The Court also cited the absence of medical justification for placing the child in the hospital and the fact that the child had not been placed in a centre that had been adapted to meet her needs. The child was instead deprived of educational/recreational facilities. The Court found these to be further factors that were illustrative of unreasonableness, if not irrationality, in the actions of the HSE.

The Court firmly rejected the submission by the HSE that it was the responsibility of the Child and Family Agency to address the needs in the short term as wrong in law. Whilst acknowledging the ongoing efforts on the part of the Child and Family Agency to provide support and to work collaboratively with the HSE to try to resolve the situation, the Court ruled that the provision of disability services and mental health services are matters for the HSE.

 

High Court held HSE has a statutory duty to vindicate the personal rights of the child

The Court found that the HSE has a statutory duty to vindicate the child’s personal rights which are enshrined in the Constitution insofar as is practicable. The court drew on the judgment of Mr Justice MacMenamin in O’Donnell v. South Dublin City Council [2015] IESC 28, which involved the provision of adequate housing by the County Council to a minor who was a person with a disability and a member of the Traveller community. The Court in that case found that the County Council’s knowledge of the child’s exceptional circumstances were sufficient to impose a special duty under Article 40 of the Constitution towards that child. In this case, the court found that the HSE’s knowledge of the child’s exceptional case imposed a similar ‘special duty’.

The Court also had regard to the child’s right to privacy under Article 8 of the European Convention of Human Rights (ECHR) and noted that the HSE had provided no good legal basis for interference in her right to privacy.

The Court held that ineffective efforts to address the situation could not prevent a finding that there was an objective breach of her rights. The Court held that reliance by the HSE on external providers to provide services did not detract from the fact that the responsibility and obligations to provide these services ultimately rested with the HSE. It was the Court’s strongly held view that given what it described as the extraordinarily long lead-in to the hospital admission, there was ample opportunity for the HSE to provide appropriate residential treatment which it failed to do.

The Court granted the declaratory relief sought declaring that the child’s current and/or continued placement is not in her best interests and is detrimental to her welfare and the failure to provide appropriate residential care has resulted in a disproportionate and unlawful interference by the HSE with the child’s constitutional and human rights, namely,  (a) her right to have decisions made in her best interests, and/or (b) her right to dignity, and/or (c) her right to autonomy, and/or (d) her right to personal and bodily integrity, and/or (e) her right to privacy. The Court declared that it was in the best interests of the child that a residential placement be identified immediately in order to vindicate her rights under the Constitution.

 

Comment

The judgment unequivocally confirms that statutory responsibility for the provision of disability services and mental health services rests with the HSE. Reliance by the HSE on external providers and any associated delay in the delivery of services does not absolve them of their legal obligations. This is particularly significant given the HSE decision to outsource care to third party service providers and the real issues concerning underfunding of those entities.

A special duty arises where a public authority, such as the HSE, undertakes to exercise its statutory powers in relation to a person and is aware of the exceptional circumstances relating to that person. The public body is under a statutory duty to vindicate the personal rights of that person under the Constitution and ECHR.

 

The judgment in context

Materials released by the HSE under Freedom of Information legislation confirm that the issues around the provision of disability services were considered in some detail by the board of the HSE in March 2020. It was identified that 2,179 new full-time residential placements were required in order to provide adequate health care to citizens over the projected 5 year planning horizon to 2025. It also noted that an additional 90 intellectual disability residential are required per year over the period 2019 – 2025. The information disclosed also shows that the HSE recognised at that time that planned residential care is the most appropriate and cost effective means of meeting the needs of people with disabilities. The HSE recognised the underfunding which had occurred up to that date. In 2020, of the 2061 active cases profiled by the HSE, there were still 552 people deemed to be in need to immediate emergency residential need.

In the wider context and the potential debate over which agency was to provide residential care, it is notable that the HSE Service Plan for 2020 committed to providing high quality residential and respite care to persons with disabilities and their families which was to include ring – fenced services to children with a disability, including those in foster care arrangements.

 

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