The Disability Act 2005 is being applied by the HSE in a way that undermines rather than upholds disability rights, the Irish Human Rights and Equality Commission (IHREC) has told the Court of Appeal.

Appearing as amicus curiae in the case of OB, IHREC said that the manner in which the HSE carries out the assessment of need under the act is incomplete, as it determines that a person has a disability but does not provide a diagnosis of the disability.

Care

The case concerns a boy declared as having a disability but without a specific diagnosis. His parents are concerned that their son has autism spectrum disorder (ASD) and will require a formal diagnosis to access necessary care. 

The HSE’s approach hinges on its 2020 standard operating procedure (SOP), which examines whether a person has a disability as a separate matter to whether presenting behaviours meet diagnosis criteria.

The case may determine whether the HSE’s SOP approach meets the full disability assessment requirements of the 2005 law.

IHREC states that the HSE’s current interpretation of disability under the 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.

Medical definition

Chief commissioner Sinéad Gibney (pictured) said: “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.”