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Disability services funding

15 Dec 2021 / wellbeing Print

Ain’t no mountain high enough

A recent judgment offers a stark insight into the consequences of the underfunding of disability and mental-health services in Ireland. Joanelle O Cleirigh and Kate O’Donohoe overcome the obstacles.

In a recent decision, the High Court ruled that the HSE bears a statutory obligation to provide disability services and mental-health services in Ireland. The decision arose in the context of judicial review proceedings related to failings in the care of a child with a disability.

The case (Y and X v The HSE [HC, 18 October 2021]) concerned a serious ongoing failure to provide care for an adolescent child with a disability over a period of several years. Having engaged with the child since August 2017, it was acknowledged by the HSE from spring 2020 that the child needed a residential placement or more intensive home support.

Notwithstanding this acknowledgement, the appropriate treatment and care were not forthcoming from the HSE. As a consequence, the child’s health deteriorated and, by March 2021, it was accepted by the HSE that residential placement was the only viable option.

Despite communicating that a residential placement would be provided by mid-August 2021, no placement materialised. The child’s condition deteriorated further and reached a crisis point in the summer of 2021.

Following a hospital admission in late July 2021, the child was transferred to respite accommodation in early August 2021. In late August 2021, the child was transferred from respite care to a regional hospital, where she remained at the time of the delivery of the judgment in October 2021.

Staff were stationed outside the hospital room to make sure the child did not escape. The court found that the child had been left to “languish in long-term semi-isolation” in a hospital room off a busy emergency department ward. During this hospitalisation, the child had not been outside for fresh air.

Judicial review

The child’s representatives instituted judicial review proceedings seeking declarations from the court regarding the lawfulness of the HSE’s treatment of the child, including declaratory relief that her current and/or 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. It highlighted its ongoing provision of services to the child’s family and argued that, while the HSE is fully committed to the provision of a residential placement to the child, it was not in a position to do so within the immediate timeframe required in this case.

It envisaged having a placement in early 2022. The HSE argued that it was the responsibility of the Child and Family Agency, a notice party to the proceedings, to meet the short-term needs of the child.

The court undertook a detailed analysis of the statutory obligations owed by the HSE to the child. The court analysed section 7 of the Health Act 2004 and held that it relates to the promotion and protection of the health and welfare of ‘the public’, and not an individual member of the public. It, therefore, did not impose any specific obligation on the HSE with respect to her care.

The court held that the HSE has a duty to perform its functions and exercise its powers lawfully and in a rational and reasonable manner. The court concluded that the HSE “has repeatedly acted in a manner that is unreasonable and, at points, crossed the line into irrationality”.

In this regard, the court referenced the occasion when, despite professional opinion that the child could not safely return home, and an agreement having been reached on that date between the HSE and the family solicitor that the HSE would continue to accommodate the child for an agreed period, the HSE contacted the child’s parents to seek to insist that the child must return home that same day.

By way of further illustration of the unreasonableness, if not irrationality, of the HSE’s actions, the court noted the lack of medical justification for the continuing containment of the child in a busy hospital in the midst of a pandemic. The evidence indicated that the placement was having a significant and detrimental impact on the child.

The court also had regard to the fact that the child had not been placed in a centre that had been adapted to meet the needs of juveniles as illustrative of unreasonableness, if not irrationality, in the actions of the HSE. The child did not have educational or recreational facilities available to her, save for access to a TV and the internet. 

Statutory duty

The court held that the HSE has a statutory duty to vindicate the child’s personal rights under the Constitution insofar as is practicable. In this regard, the court noted the judgment in O’Donnell v South Dublin City Council, 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 council’s knowledge of the child’s exceptional circumstances was sufficient to impose a special duty under article 40 of the Constitution towards that child to vindicate their rights, insofar as is practicable. In the present case, the court found that the HSE’s knowledge of the child’s exceptional case imposed a similar special duty.

The court held that ineffective efforts by the HSE to address the child’s situation could not prevent a finding that there was an objective breach of her personal rights. The HSE sought to place reliance on the fact that the disability services required to meet the needs of the child are not provided by the HSE directly, but are sourced from outside service providers.

The court held that, insofar as the HSE elects to rely on external providers, it ought to be aware that there will be lead-in periods and difficulties associated with that structure. Any associated delays and difficulties do not absolve the HSE from its responsibility and obligations to provide these services.

It was the court’s strongly held view that, given what it described as the extraordinarily long lead-in to the hospital admission in this case, there was ample opportunity for the HSE to provide appropriate residential treatment, which it failed to do.

Right to privacy

The court also recognised the child’s right to privacy under article 8 of the European Convention on Human Rights and concluded that the HSE had not offered any good legal basis for its interference in her right to privacy.

In addition, the interference with the child’s personal rights through the failure by the HSE to secure suitable accommodation for the child pending her transition to long-term care was not proportionate.

Having regard to the extended period of HSE engagement that preceded the child’s health crisis, the court concluded that, following the decision in Meadows v MJE, the HSE had failed to impair the child’s rights as little as possible.

The court did not countenance any attempt by the HSE to deflect responsibility for failings in the provision of care to the child to other agencies. The court rejected outright, as wrong in law, the submission by the HSE that it was the responsibility of the Child and Family Agency to address the short-term needs of the child.

While 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 the legal responsibility of the HSE.

The court granted the declaratory relief sought, including a declaration that the child’s current and/or continued placement in hospital is not in her best interests and is detrimental to her welfare, and a declaration that the failure by the HSE to facilitate the child’s discharge to a safe and suitable residential placement 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, and necessary to promote her health and welfare, that a residential placement be immediately identified for her in order to vindicate her rights under the Constitution.

The court was unequivocal in its judgment that statutory responsibility for the provision of disability services and mental-health services rests with the HSE. The court has found that 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 insofar as is practicable.

Outsourced care

The HSE’s ongoing reliance on third-party providers to deliver disability and mental-health services in Ireland cannot be relied upon as a defence to breaches of their statutory obligations. This is particularly significant, given the HSE decision to outsource care to third-party service providers and the real issues concerning underfunding of many of those entities.

Underfunding of disability services was acknowledged by the HSE in 2020 in materials released by the HSE under freedom of information legislation. In these materials, the HSE identified that 2,179 new full-time residential placements were required in order to provide adequate healthcare to citizens over the projected five-year planning horizon to 2025.

The HSE also noted that an additional 90 intellectual-disability residential placements are required per year over the period 2019-2025. Importantly, the information disclosed reveals that, at the time, the HSE recognised that planned residential care is the most appropriate and cost-effective means of meeting the needs of people with disabilities.

However, in 2020, of the 2,061 active cases profiled by the HSE, there were still 552 people deemed to be in need of immediate emergency residential care.

The system failings at the centre of the judgment are unfortunately not exceptional, and the case is a salutary reminder of the ongoing impact of underfunding on disability and mental-health services in Ireland in the level of care available to the most vulnerable in our society who have a disability and/or are experiencing mental-health difficulties.

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Joanelle O Cleirigh and Kate O’Donohoe
Joanelle O Cleirigh (partner) and Kate O’Donohoe (senior associate) work in the litigation, dispute resolution and investigations group in Arthur Cox LLP