It is important to recall the purpose of the LTI scheme; it is to assist people with prescribed long-term diseases and disabilities with their medication expenses. The HSE response conflates the treatment of long-term illnesses with the financial assistance available under the scheme. The primary decision regarding the diagnosis of an illness or the identification of a disability rests with the individual’s own doctor; this is a clinical decision. The decision to grant or refuse an application, whether made by a medical professional or not, is an administrative decision. The medical professional in this circumstance is not acting in a doctor-patient role in relation to the patient. He/she is offering an opinion to a deciding/appeals officer on whether the diagnosis already made is within or without the terms of the scheme; this is an administrative function. If not offering an opinion, then he/she is deciding the issue him/herself, which, again, is an administrative decision. This is a factual situation long endorsed by the Courts in relation to cases involving medical professionals employed by the Department of Social Protection in the administration of schemes where an assessment of disability or illness is involved.
The actions of medical professionals employed by the HSE are within the Ombudsman’s jurisdiction unless they come within the excluded category provided for in legislation. This exclusion refers to persons acting on behalf of the HSE who, in the opinion of the Ombudsman, act “solely in the exercise of clinical judgement in connection with the diagnosis of illness or care and treatment of a patient...” The medical professionals examining applications for the LTI scheme are not the applicant’s doctor and do not have a doctor/patient relationship with that person. It is the Ombudsman’s firm opinion that the actions in question are not excluded from her remit.
The HSE refers to the scheme covering both the “approval of products” and diagnosis. However, the legal basis of the LTI scheme, outlined in this report, does not set out limitations on the medications for which assistance under the scheme may be given. The Ombudsman recognises that there is a continuing debate on the best approach to dealing with ADHD. As regards the classification systems it appears that it is not necessarily the case that they are at odds with one another. While the WHO approach focuses on the behavioural dimension of ADHD, this does not mean that it cannot be seen as a “mental illness”, particularly when one has regard to the definition of “mental illness” set out in the Mental Health Act 2001. In fact it is clear that the Oireachtas, in enacting the 2001 legislation, provided a definition that focuses on behaviour rather than aetiology. This is the legal framework to which the HSE administrators of the LTI scheme should have regard. To quote the Act again, “mental illness” means
“a state of mind of a person which affects the person’s thinking, perceiving, emotion or judgement and which seriously impairs the mental function of the person to the extent that he or she requires care or medical treatment in his or her own interest or in the interest of other persons.”
In the context of the varying approaches to the treatment of ADHD it seems reasonable to take the view that both the diagnosis of the illness and the treatment prescribed for it are decisions for the individual’s own doctor.
The HSE says it will no longer accept people onto the LTI scheme where ADHD is the disorder involved. The HSE also says that it must await the outcome of the Department of Health’s review of the scheme. However, neither of these positions are well-supported by the law. As noted earlier in this report, the LTI scheme has a statutory basis and the HSE is charged with its administration. While it may be appropriate to seek guidance on certain issues, the scheme remains the responsibility of the HSE to administer in an equitable manner.
The central fact of this investigation is that ADHD is recognised as a mental illness by many HSE medical officers for the purposes of the LTI scheme. The HSE has acknowledged that children with ADHD have been accepted as eligible for the LTI card by Medical Officers in the greater part of the country; it is likely that this has been the approach for many years in these areas. The HSE is now proposing to tell all of these medical officers that they may not follow this approach in future. In effect, the HSE is deciding that ADHD does not constitute a mental illness in circumstances where it has no strong basis for adopting the approach. There is no recognition of the practice of many of their own Medical Officers in recognising ADHD and ASD as meeting the LTI eligibility criteria nor is there any consideration of the existing statutory definition of mental illness. In proposing a change of this nature the HSE is also pre-empting the outcome of the Department of Health’s review of the scheme.
This is the second investigation in recent times to uncover practises in one part of the country which are at variance with the rest (See Ombudsman's Investigation Report on the Motorised Transport Grant). Given that one of the aims in establishing the HSE, more than seven years ago, was to promote consistency of approach and of standards, it is of great concern that such variation of approach could happen and could continue unchecked until this Office is alerted to the matter by a complainant and only then does it become an issue for the HSE.