In its report ‘Nowehere To Turn: Children with disabilities left with no support’, the Ombudsman for Children expressed its deep concern with the inadequacy of support for children with disabilities in Ireland. Its concern rang true no more than in the High Court case of Ms Y and Miss X v The Health and Safety Executive (HSE) [2021] IEHC 803.
The case concerned an adolescent child (Miss X) suffering from disabilities and behavioural problems. The HSE had known since February 2019 that Miss X’s case was ‘bubbling up’ through the system and it had known since spring/summer 2020 that she would require residential treatment for her ailments. However despite this knowledge, the HSE allowed a situation to arise in which on 21 August 2021, with no residential place arranged for her, Miss X was placed in a room of a hospital emergency department ward in a regional hospital for almost 60 days. She had not been outside in the fresh air for the entirety of her time in the hospital. With full knowledge of Miss X’s requirements, the HSE simply dismissed her needs and recommended that she be put in a care facility. Miss X and her mother sought certain declarations from the High Court as to the unlawfulness presenting in her situation.
Judge Max Barrett considered all the relevant circumstances with diligence and compassion. He made the following declarations:
- Miss X’s current and/or continued placement in the hospital is not in her best interests and is detrimental to her welfare.
- Miss X’s current and/or continued placement in a hospital setting has resulted and is resulting in a disproportionate and unlawful interference with the constitutional and human rights enjoyed by Miss X as a minor and a person with or more disabilities.
- In placing Miss X in a hospital setting and/or by failing to prevent her placement in the said hospital and/or by failing to facilitate her discharge to a safe and suitable residential placement, the HSE has disproportionately and unlawfully interfered with Miss X’s constitutional and human rights.
- It is in the best interests of Miss X and necessary in order to promote her health and welfare that a residential placement be immediately identified for her in order to vindicate her rights pursuant to the Constitution.
Judge Barrett reiterated that it is the responsibility of the HSE and no other organisation to provide disability services to children in need of such services.
The poor treatment of Miss X while in the care of the HSE is but one example of the wide ranging inadequacy of support for disabled children in Ireland. The Ombudsman for Children has highlighted the on-going failure of the State to provide adequate services to support children with disabilities to grow up at home with their families. While this High Court decision did result in a positive outcome for the applicants and their family, judicial intervention should not be required to ensure that the Health Service Executive and other State bodies fulfil their statutory obligations toward children with disabilities. An application to the courts can be a time consuming and costly process, a burden that ought not to be placed on families such as Miss X’s.
The closing remark in Judge Barrett’s judgement conveys the impact that this issue is having on children in Ireland:
‘’The court recalls the promise, pointed to in the Proclamation of Independence, of a republic that would cherish all the children of the nation…the court cannot but observe that Miss X [could] be forgiven if she does not feel greatly cherished by the republic at his time.’’
Click here for the full judgement in Miss X v The Health and Safety Executive [2021] IEHC 803