Initial decision to refuse application
It is generally accepted that good decision making entails the notification of a decision in clear language explaining the legal and other grounds for the decision. The notification of the decision should enable the applicant to make an informed appeal, where an appeals process is the next step. In this case, the A/SAMO decision letter of July 2009 (quoted in the section 'Confusion about the scheme') did not meet these criteria. The confusing nature of the terminology used and the errors in relation to law and facts (that is, the references to medications not being available under the scheme and to “receipt” of a LTI book) seriously undermined the validity of the decision. In the event, the appellant herself had regard to the terms of the scheme in making her appeal.
Appeal decision
The information supplied to the Appeals Officer by the A/SAMO in her letter to him of 4 December 2009 was incorrect on a number of counts:
- She said, “... a diagnosis of attention deficit disorder is not regarded as a mental illness and as such does not qualify... This has always been the case. ” The A/SAMO has told the Ombudsman’s Office that this statement was accurate insofar as it reflected the position of medical officers and management in the Southeast. She is correct in this. However, it has since become clear that it is not an accurate reflection of how ADHD is seen by the HSE in many other parts of the country where it is regarded as a qualifying condition for the LTI scheme.
- The suggestion that “If he is diagnosed with autism spectrum disorder then he may well be eligible for LTI and I suggest the parents would reapply...” was misleading as when the diagnosis was, in time, made by a HSE Consultant, the decision made by the A/SAMO was “ that Autism Spectrum Disorder and ADHD are not currently considered eligible...”
It is a matter of concern that factually incorrect information was supplied to the Appeals Officer, albeit given in good faith by the A/SAMO, which was relied upon by him in making his decision on the appeal. As he did rely on that advice, his decision on the appeal cannot be said to be soundly based.
There does not appear to have been any awareness of the national nature of the LTI scheme among the local administrators involved with this case. The information supplied by the HSE to this Office, which shows that in many parts of the country the condition of ADHD is regarded as a mental illness in a child less than 16 years of age, should have been available to the administrators dealing with this case. There should have been an awareness of the practices in other areas and the fact that a uniform approach to the classification of diseases/disabilities which qualify under the LTI scheme is the only equitable approach.
Decision on second application
The HSE suggested that the family should reapply for the card if Sam was diagnosed with autism spectrum disorder. The A/SAMO told the Ombudsman’s Office that she wished to check the position with her peers in the Southeast and she did not intend to give the impression that Sam would be eligible for the LTI scheme if he were diagnosed with this disorder. The refusal of the second application was undoubtedly confusing to Ms Kelly in the light of the HSE’s suggestion. If, as this later decision said, neither ASD nor ADHD were qualifying diseases/disabilities for the scheme then it was unfair and misleading to invite a further application on the basis of a diagnosis of autism spectrum disorder. Ms Kelly could have argued, with some justification, that the HSE had implied that her son would qualify for the card in these circumstances (as she was told “should this diagnosis be made he would be considered for the [LTI] scheme”) and that she consequently had a reasonable expectation that she would receive it following that second application in 2010. Again, it was inaccurate to say that the particular conditions “are not currently considered eligible...” (as, in fact, children with these conditions in other parts of the country are regarded as eligible for the LTI card). This decision is also one which cannot be said to be soundly based.
Decision to award LTI card
In March 2012 the HSE issued a LTI card to Ms Kelly for Sam which she has used since April 2012 to obtain the prescribed medication for his conditions. The HSE refused to reimburse Ms Kelly for the cost of the medication for the period July 2009 to February 2012. If the card had been awarded to her following her application at the end of June 2009, she would have received these medications free of charge. She supplied documentary evidence from her pharmacy to this Office – which was forwarded to the HSE – which shows her costs have been in excess of €3,000.
The HSE wrote to this Office in February 2012 to say that the LTI card would be issued to Ms Kelly. In the letter the HSE said that the issue of the variations in the application of diagnostic classification systems was raised with the Department of Health for the purpose of getting clear national guidance on the appropriate classification system to be used. The HSE decided to issue a LTI card to Ms Kelly in recognition that for her:
- “There has been a long delay in bringing the wider issue to a conclusion and that this has resulted in delays in addressing her complaint.
- A reasonable expectation may have been given that a card would have been awarded following Sam dual diagnosis of ADHD and ASD.”
In considering whether any recompense should be made for medication costs incurred by Ms Kelly since she first applied, the HSE said:
“This card will be issued strictly on the particular and individual circumstances of the case and will not serve as a precedent for other applicants until the wider issues in relation to clinical classification ... are resolved.”
It is now 17 months later and no decision has been made on the adoption of a nationally applicable diagnostic system for the purposes of the LTI scheme.
There are some comments which must be made about the decision to award the card, but no payment of past medication costs, to Ms Kelly:
- The card could not be issued in accordance with the terms of this statutory scheme unless the HSE was satisfied that the applicant met the eligibility criteria for it. If Ms Kelly was eligible for the card in March 2012 on the basis of her son’s conditions, it follows that she was eligible for it at an earlier time. She had supplied both application forms and documentation from the HSE Consultant psychiatrist who was treating her son, certifying his diagnosis of Sam’ condition. While it is acknowledged that the card was said by the HSE to have issued on a “good will” basis, following contact from the Office of the Ombudsman, there is no provision in the scheme for issuing a LTI card on such a basis. A determining factor in the original decision in her case was her residence in one of the few parts of the country which refused LTI cards to children with ASD and ADHD; this cannot be ignored.
- The HSE says that the card has issued to Ms Kelly on an “individual” basis and that the decision in her case should not serve as a precedent. The adverse financial implications of treating the case otherwise are mentioned in internal HSE memoranda on the case. Clearly, there are financial implications for extending the scheme to a class of persons who had been excluded from it in the past. However, there are two points to be made here: first, this is not a sound administrative basis for treating similar cases differently and second, the adverse financial implications would be limited to the extension of the system already in place in many local Health Offices whereby the conditions in question are recognised as qualifying for the issue of an LTI card.
Interpretation of “mental illness”
The HSE has sought direction from the Department of Health on the interpretation of the phrase “mental illness” as it applies to the scheme. The LTI scheme is a statutory scheme administered by the HSE and for which it has responsibility. Under Section 7(8) of the Health Act 2004 “the Executive has all the powers necessary or expedient for it to perform its functions”. This means that the HSE has the authority in law and the competence to decide on the interpretation of the phrase “mental illness”. It is not reliant on the Department (as is the case with administrative, non-statutory schemes) to give guidance on the implementation of the scheme. While it may be appropriate to seek guidance on particular issues, the scheme remains the statutory responsibility of the HSE to administer in a fair manner.
The HSE has not developed a consistent approach on the question of whether the disorders of ASD and ADHD are regarded as mental illnesses for the purpose of the LTI scheme. It attributes the variations in approach to the fact that two different diagnostic classification systems are in use. Again, it is not at all clear that it is necessary for the HSE to choose between the two systems for the purpose of the scheme. It is only necessary to decide if the disorders in question come within the terms of the scheme.
As noted earlier, this is a scheme with a legislative basis. Section 59 (3) of the Health Act 1970 provides that:
“A health board may make arrangements for the supply without charge of drugs, medicines or medical and surgical appliances to persons suffering from a prescribed disease or disability of a permanent or long-term nature”.
Regulations made by the Minister for Health under the Act, (The Health Services (Amendment) Regulations, 1971, S.I. 277/1971) provide:
“8. The following diseases and disabilities are hereby prescribed for the purposes of section 59(3) of the Act: mental handicap, mental illness, phenylketonuria, cystic fibrosis, spina bifida, hydrocephalus, haemophilia, cerebral palsy, diabetes mellitus, diabetes insipidus and epilepsy.
9. Arrangements for the supply of drugs and medicines to persons suffering from mental illness in pursuance of section 59(3) of the Act shall be made only in respect of persons under the age of 16 years.”
There are two points to make about this legislation which are of note; it refers to both diseases and disabilities and it does not provide a definition of “mental illness”. As mental illness is included in the list then it must be considered in the context of this legislation as either a disease or disability. There is, in fact, a definition of mental illness provided in the Mental Health Act 2001 to which the HSE has not referred in its communications with the Ombudsman’s Office on this matter. Section 3(2) provides that “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”.
The Mental Health Act 2001 covers a range of issues unconnected with the LTI scheme. At the same time, it does seem likely that a person with ADHD or ASD may have a "state of mind" of a kind reflected in the Mental Health Act definition. It seems possible, therefore, that the question for the HSE is not which diagnostic classification system to use, but rather whether ADHD and ASD are conditions of a type whose consequences are in line with those set out in the statutory definition of mental illness. While it is a broad definition it is, nonetheless, an extant statutory definition of a term contained in the provisions for the LTI scheme. In the absence of amendment to the legislative provisions for the scheme this definition is of relevance to any discussion of the LTI scheme in its present form.