The complainants' names used in this report have been changed to protect their identities.
Complaint from Ms Sarah Nolan
Ms Nolan made her complaint to my Office on 30 June 2006
Ms Nolan applied for DCA on 5 August 2005 in respect of her daughter, Patricia (born in 2004), who has a diagnosis of Sickle Cell Disease (SCD). Ms Nolan has another daughter, Karen (born in 2001), who also has a diagnosis of SCD, but in respect of whom DCA had been awarded following an appeal. The application in respect of Patricia was refused in December 2005 and Ms Nolan appealed this decision on 16 February, 2006. On 12 June, 2006 she was informed by the HSE that her appeal had been unsuccessful.
My Office's preliminary examination of this complaint involved the inspection of the HSE's files relating to both Patricia and Karen. The files show that Ms Nolan applied for DCA for both of her daughters on 5 August 2005. Both children were examined by an Area Medical Officer (AMO) on the same date and decisions (to refuse both applications) were made on the same date. Ms Nolan appealed both decisions in a letter dated 16 February, 2006, both children were examined by a second AMO on the same date, and the appeals were considered by the Appeals Committee on the same date. On that occasion, the Committee decided that Karen was eligible for DCA while Patricia was not.
The information on the files showed that all the information provided to the HSE (i.e. DCA applications and appeals, and the medical evidence provided by a Consultant Paediatric Haematologist, with Our Lady's Hospital for Sick Children, Crumlin (OLHSC)) was identical for both children. It was also noted that, for both girls, the AMO assessment reports and the notes prepared for the Medical Review Committee, are almost identical. From my Office's examination of the HSE files relating to both applications, it was difficult to see, based on the evidence, how one of the girls (Karen) was deemed to be medically eligible for DCA while the other (Patricia) was not. In this regard, letters from OLHSC confirmed the diagnosis of SCD for both girls, describing it as a life-threatening disorder, and also confirmed the requirement for care and attention above what is normal for children of their age.
My Office wrote to the HSE requesting that Patricia's case be reviewed. In the letter, the similarities in the evidence upon which both cases were decided, were highlighted. The HSE was also asked to furnish a report setting out clearly the reasons why, in the case of Karen, she was deemed to be medically eligible for DCA whereas, in Patricia's case, she was deemed to be not medically eligible.
In a report responding to my Office's letter the Senior Area Medical Officer (SAMO) who reviewed the case explained that Sickle Cell crises can be life-threatening and, depending on the severity, can lead to hospitalisation. He also explained that repeated crises can lead to chronic deterioration of general health with lung, joint and kidney problems, so the severity of the disease depends on the severity of the crises and their frequency. The SAMO stated that both Patricia and Karen have the same disease but they are affected by different degrees of severity. He stated that, in Patricia's case she has only had one crisis, leading to hospitalisation, while her older sister has had several.
Having carried out a preliminary examination of this case, it seemed to me that there was prima facie evidence of maladministration in the actions of the Executive. In this regard, it appeared to me that the award of DCA in respect of Karen while, on the basis of apparently similar medical and other evidence, refusing the application in respect of Patricia may have been improperly discriminatory and contrary to fair or sound administration. Accordingly, I decided to carry out an investigation of the complaint under the provisions of Section 4 of the Ombudsman Act, 1980.
Complaint from Ms Emer Kelly
Ms Kelly made her complaint to my Office on 2 November 2006
Ms Kelly applied for DCA on 7 April 2004 in respect of her son, Paul (born in 1997), who has a dual diagnosis of Attention Deficit Hyperactivity Disorder (ADHD) and Oppositional Defiant Disorder (ODD). The application was refused in June 2004 and Ms Kelly appealed this decision on 16 December 2005. On 17 August, 2006 she was informed by the HSE that her appeal had been unsuccessful.
My Office's preliminary examination of this complaint involved the inspection of the HSE's files relating to Paul. The file contains medical evidence which confirmed the diagnoses of the two conditions (ADHD and ODD) and also setting out how Paul is affected by these. The file also contained reports and letters from Paul's school (where he requires a Special Needs Assistant and resource teaching) outlining the difficulties they experience with Paul as a result of his diagnosed conditions and Ms Kelly had also provided details on the difficulties she experienced with Paul and the additional care and attention that he requires in the home, as a consequence.
The file shows that Ms Kelly's application was refused and that the decision was subsequently upheld in August 2005 after the case was considered by the Medical Review Committee. In December 2006, Ms Kelly submitted a further appeal against the refusal of her application. The case was reviewed in July 2006 by the SAMO who was involved in the original decision to refuse the application. In his report to the Area Administrator, the SAMO stated that
"He [Paul] has a behavioural disorder and could not be deemed to be disabled"
and
"He is not disabled let alone severely disabled. Although he requires a good deal of extra attention from his parents to manage his difficult behaviour he does not require extra care and attention in the context of disability".
It appeared to my Office that it was the opinion of the SAMO that Paul's diagnosed condition, ADHD, was not a disability and, therefore, he was not medically eligible for DCA. However, it is the experience of my Office that a very large number of parents of children with ADHD (in all parts of the country) apply for DCA and, in many cases, these are successful, thus indicating that other SAMOs do consider ADHD to be a disability.
Having carried out a preliminary examination of this case, it seemed to me that there was prima facie evidence of maladministration in the actions of the Executive. In this regard, it appeared to me that the refusal of DCA on the grounds that the SAMO involved in this case considered ADHD not to be a disability, whereas, by virtue of the fact that DCA is paid in respect of very many other children with ADHD, SAMOs in other areas of the HSE do consider the condition to be a disability for the purposes of the DCA scheme, may have been improperly discriminatory and contrary to fair or sound administration. Accordingly, I decided to carry out an investigation of the complaint under the provisions of Section 4 of the Ombudsman Act, 1980
Complaint from Ms Geraldine Smith
In November, 2002, a Mental Health Social Worker attached to the former South Western Area Health Board wrote to my Office on Ms Smith's behalf requesting that I examine her case.
Ms Smith first applied for DCA on 15 March 1995 in respect of her son, Matthew (born in 1991), who has Cerebral Palsy. That application was refused in September 1995. Ms Smith made another application for DCA in November 2001. This application was also refused and she made an appeal in April 2002. On 4 November, 2002 she was informed by the HSE that her appeal had been unsuccessful.
My Office's preliminary examination of this complaint involved the inspection of the HSE's files relating to Matthew. Also, on a number of occasions during the course of the examination of this complaint, my Office obtained medical and other evidence which had not previously been seen or considered by the HSE and this was forwarded to the HSE with requests for Matthew's case to be reviewed. On each occasion, I was informed that there was no new information in relation to Matthew's condition that was not already documented on his file.
The HSE file contains medical evidence which confirms that Matthew suffers from Cerebral Palsy with left hemiplegia (meaning that the left side of his brain was affected), and also that he suffers from epilepsy, migraine, and has ongoing back, leg and arm problems. Matthew has attended a range of health service providers for his condition over the years (including occupational therapy and physiotherapy) at the Central Remedial Clinic (CRC), Our Lady's Hospital for Sick Children, Crumlin (OLHSC), Tallaght Hospital and Cappagh Hospital. In the original complaint to my Office the Social Worker who made the complaint on Ms Smith's behalf stated that Matthew's mother had to massage his back and legs twice each day to relieve the pain and swelling, and to bath him regularly to relieve his symptoms. She said that Matthew's mother was often called to the school to collect him as he was in so much discomfort and also that he suffered frequent falls due to his balance being poor, and required substantial assistance during the school day to help him cope. The examination of the HSE file shows that evidence exists to confirm all of this.
Medical evidence to support Ms Smith's application was submitted by a Consultant Paediatrician with the CRC and a Consultant Neurologist with OLHSC. In one report from the Consultant Paediatrician, which was provided to the HSE by my Office, it was reported that
"to the inexperienced eye [Matthew's condition] may not appear to be as significant and as disabling as it actually is for him. He requires significantly more care and attention than peers of his age without his condition.".
Other supporting evidence was provided by a Social Worker with CRC, the Resource Teacher to Matthew, and his Special Needs Assistant at school. In the course of correspondence between my Office and the HSE requesting that Matthew's case be reviewed, my Office asked the HSE medical officers to contact the child's consultants and his school with a view to establishing how his condition impacted on him, and to determine the actual level of care and attention he required. It appears that this was never done.
Having carried out a preliminary examination of this case, it seemed to me that there was prima facie evidence of maladministration in the actions of the Executive. In this regard, I noted the strong medical and other evidence from Matthew's consultants, from his teachers at school and from Social Workers which demonstrated that Matthew required a substantially greater level of care and attention than another child of the same age. It appeared to me that the decision taken by the HSE to refuse Ms Smith's application for DCA in respect of her son, may have been improperly discriminatory, and contrary to fair or sound administration. Accordingly, I decided to carry out an investigation of the complaint under the provisions of Section 4 of the Ombudsman Act, 1980.