Judge rules HSE ‘unlawfully interfered’ with autistic girl’s rights

A High Court judge has ruled the Health Service Executive has “disproportionately and unlawfully interfered” with the constitutional and human rights of an autistic girl who has spent 54 days in a room off the emergency department of a general hospital.

Tusla, the Child and Family Agency, is not to blame in any way for the HSE’s “mess” in this matter, Mr Justice Max Barrett said.

In a judgement delivered on Monday, the judge concluded the 17-year-old’s continuing stay in a general hospital is “not in her best interests and is detrimental to her welfare”.

As a minor, and a person with a disability, the girl has a right to have decisions made in her best interests and her rights to dignity, autonomy, personal and bodily integrity and privacy, he said.

By failing to prevent her stay in the hospital and/or by failing to facilitate her discharge to a safe and suitable residential placement, the HSE has “disproportionately and unlawfully interfered” with these same rights, the court declared.

Given the duty to promote her health and welfare, a residency needs to be “immediately identified” for her in order to vindicate her rights, he said.

The teenager, who has complex mental health needs and behavioural issues, has been in the hospital since she was removed from a relief centre in August.

A television and wifi have been installed in her room in recent days, but she is still without access to an appropriate education, peers or fresh air, which is leading to her mental health deteriorating, Ciaran Craven SC, instructed by KOD Lyons Solicitors, on behalf of her parents, had told the court.

Her parents cannot take her home due to risks to her own safety and the safety of other family members, the court heard.

The matter came to court via an application by the parents for declarations to vindicate and protect the girl’s constitutional rights.

On Monday, Mr Justice Barrett rejected the HSE’s contentions that Tusla would be best placed to provide an emergency residency for the 12 to 16 weeks it would take for a “bespoke” autism-specific placement to become available for the girl.

The provision of disability services to a child is “without a shadow of legal doubt” the HSE’s legal responsibility and Tusla is not to blame “in any way” for the HSE’s “mess”, he said.

The HSE’s acknowledgement in correspondence to then-Taoiseach Leo Varadkar in spring 2020 that the girl would require a placement or intensive home support, leaves its claims now to be doing all it can ringing hollow, he said.

The judge said that the HSE’s actions had made what had been an avoidable delay in providing adequate care to the girl unavoidable.

It appears from the evidence the girl’s parents seem to be doing “all that they can to ‘do right’” by her, he said however.

In closing his judgement, Mr Justice Barrett recalled the “promise, pointed to in the Proclamation of Independence, of a republic that would cherish all the children of the nation”.

The judge also indicated his preliminary view that liability for all parties’ costs would lie with the HSE. Orders regarding costs will be made later.