This was an investigation by the Ombudsman of a complaint about the refusal of the Health Service Executive (HSE) to award a Long Term Illness Card (LTI card) to a woman for her son who was diagnosed as having attention deficit hyperactivity disorder (ADHD) and autistic spectrum disorder (ASD). The HSE refused the application on the grounds that the applicant did not meet the medical criteria for eligibility. Following the investigation, the Ombudsman found that the decision to refuse the application was, among other things, improperly discriminatory.
The Ombudsman also found that the failure of the HSE to ensure a uniform approach to the administration of the scheme throughout the country was contrary to fair or sound administration.
The Case
The Investigation
Findings
Recommendations
The Case
In March 2010 Ms Kelly (not her real name) complained to the Ombudsman about the refusal of her application for a LTI card for her son. The HSE’s refusal was on the basis that her son did not meet the relevant medical criteria. The applicant believed that her son’s condition was such that he did meet the criteria and she also contended that, had they lived elsewhere in Ireland (they live in Wexford) her son would have been awarded a LTI card.
The LTI card scheme is a statutory one. The HSE has responsibility for its administration. Under the Health Acts the HSE has the power to make arrangements for the supply without charge of drugs, medicines or medical/surgical appliances to persons suffering from “a prescribed disease or disability of a permanent or long-term nature.” Regulations list the diseases or disabilities which qualify an applicant for the card. The illness with which this case is concerned is simply listed as “mental illness. “ The relevant section says:
“Arrangements for the supply of drugs and medicines to persons suffering from mental illness ... shall be made only in respect of persons under the age of 16 years.”
This means that mental illness in a child under the age of 16 is an illness which qualifies for the LTI scheme so that the medications prescribed for that child may be obtained free of charge.
The Investigation
The investigation looked in detail at the HSE's handling of Ms Kelly’s application. The HSE acknowledged disparities in the way both ADHD and ASD are classified by individual medical officers in processing LTI card applications. In some geographical areas, children under 16 with these disorders are classified as having a mental illness and as such entitled to a LTI card, in others they are not. The HSE accepted that this system was inequitable and, in January 2013, informed the Ombudsman that the Department of Health was carrying out a review of the scheme. This wide-ranging policy review commenced prior to the Ombudsman’s investigation and was not prompted by it.
In March 2012, as a result of the Ombudsman's intervention, the HSE issued a LTI card to Ms Kelly for her son which she has used since to obtain the prescribed medication for his conditions. At the time, the HSE refused to reimburse her for the cost of 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.
In a response to a draft report of this investigation, the HSE decided to alter the approach of its medical officers who heretofore had accepted ASD and ADHD as conditions which conferred eligibility under the scheme. It said that it would no longer accept people onto the LTI scheme where ADHD is the disorder involved. The HSE also said that it would await the outcome of the Department of Health’s review of the scheme.
The Ombudsman recognised that there is a continuing debate on the best approach to dealing with ADHD. The Ombudsman suggested that the HSE should have regard to the definition of “mental illness” set out in the Mental Health Act 2001, a definition that focuses on behaviour rather than the underlying causes of the behaviour. This definition is,
“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 the Ombudsman was of the opinion that a reasonable view would be that both the diagnosis of the illness and the treatment prescribed for it are decisions for the individual’s own doctor.
The HSE decision not to accept people onto the LTI scheme where ADHD is the disorder involved and to await the outcome of the Department of Health’s review of the scheme were judged by the Ombudsman not to be positions well supported by the law.
The fact 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.
Findings
The investigation resulted in a number of findings about the handling of the individual case and in relation to the administration of the LTI scheme. The Ombudsman found that Ms Kelly was adversely affected by the refusal of her applications for a LTI card in July 2009 and in September 2010 and that the decisions to refuse her applications were based on erroneous or incomplete information, on irrelevant grounds and were improperly discriminatory.
The Ombudsman also found that the decision to refuse to recompense Ms Kelly for her son’s medication for the period of her application prior to March 2012 was taken on irrelevant grounds, erroneous or incomplete information and improperly discriminatory.
In relation to the administration of the scheme, the Ombudsman found that the different treatment of cases depending on their geographical location, was improperly discriminatory, an undesirable administrative practice and contrary to fair or sound administration. The failure of the HSE to ensure a uniform approach to the administration of the scheme and in addition, the failure to provide the HSE administrators of the scheme with adequate and clear guidance in relation to it were contrary to fair or sound administration.
The Ombudsman also found that, in the light of the fact that the scheme is under review by the Department of Health and the outcome of that review is not yet known, the HSE proposal to alter the approach of its medical officers who heretofore had accepted ASD and ADHD as conditions which conferred eligibility under the scheme, was contrary to fair or sound administration.
Recommendations
Based on these findings, the Ombudsman made the following recommendations:
- that the HSE refund Ms Kelly the cost of medications for her son in the period from when she first made an application for him under the LTI scheme to the time when her application was granted. (approximately €3,000)
- that, as the outcome from the Department of Health Review Group is awaited by the HSE and in the absence of any substantive amendments to the governing legislation, the HSE continues to administer the LTI scheme as it has done for many years in the greater part of the country, thereby including ADHD as constituting a mental illness which, in the case of persons under 16 years, gives entitlement to a LTI card.
- that steps be taken to ensure that the LTI Scheme, as a national scheme, is administered in a uniform fashion throughout the country.
- that all of these recommendations are implemented before the end of October 2013.
The HSE accepted the findings and recommendations made to it.
Ms Kelly was reimbursed the cost of medications for her son for the period involved.
The HSE also developed new operational guidelines which, it says, take account of the available national and international clinical evidence. The new guidelines, issued to HSE staff on 18 October 2013, direct that ADHD be regarded as a mental illness for the purposes of the LTI scheme. The guidelines outline the factors which must be present in such cases. They are to be implemented on a national basis to ensure consistency and clarity in the administration of the scheme.