High Court Confirms That The Statutory Obligation To Provide Disability Services And Mental Health Services Rests With The HSE

• Published date: 16 November 2021
• Subject Matter: Government, Public Sector, Food, Drugs, Healthcare, Life Sciences, Human Rights
• Law Firm: Arthur Cox
• Author: Joanelle O'Cleirigh and Kate O'Donohoe

The High Court has confirmed that the statutory obligation to provide disability services and mental health services rests with the HSE. The decision was made in recent judicial review proceedings in which declaratory relief was sought in respect of failings to provide and deliver appropriate care to an adolescent child with a disability.

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...