Western Health Trust 'in breach of duty to carer'

Mr Justice Treacy, sitting on Friday in the High Court in Belfast, gave details of the factual background to the case. The applicant is the mother of a child who was diagnosed as autistic and suffering from ADHD. He also has psychotic tendencies and a particularly intense dislike of females, especially his younger sister. Both he and his sister had been placed on the child protection register because of the danger he posed to her due to his psychotic dislike of females and because of the danger he posed to himself due to his combination of learning difficulties and possible other conditions.

The boy’s mother has been his main carer for most of his life. This has taken a heavy toll on her health and well being. A social worker employed by the Western Health and Social Care Trust carried out a carer’s assessment on the mother in 2008. It recorded that the caring role had led to the mother having a complete breakdown. Despite this, the mother heard nothing more about this for four months until she was told by the Trust that there was no budget available to meet her assessed needs.

In late 2008 her son made a series of threats to his sister. On Christmas Day 2008 he tried to hang himself in the family home. As a result he was sent to Minnowburn House in Belfast for assessment. The terms of his care plan were that he would return home at weekends. This remained in place until the Summer of 2009.

The mother meanwhile continued to have great difficulty in coping with her son’s needs on his weekend breaks. She contacted the Children’s Law Centre in Belfast and in January 2009 the CLC wrote to the Trust asking that a fresh carer’s assessment be carried out. No response was received to this letter despite a number of reminders. In April 2009 the CLC lodged a formal complaint in relation to the failure of the Trust to answer the correspondence.

Mr Justice Treacy stated that in the period from 29 January to 15 May 2009, when the CLC was informed that the Trust hoped to be in a position to reply, it was clear that no service was provided to the family to assist them in dealing with the problems that the son’s autism generated for him and his family during his weekends at home.

Mr Justice Treacy referred to the relevant provisions of the Children (NI) Order 1995. He stated that applying these provisions to this case, it is clear that the son is a child in need and as a consequence the Trust has a general duty to safeguard and promote his welfare by providing a range and level of social care appropriate to his needs. The judge said the legislation also envisages making social provision targeted at the family of a child in need because that family is recognised to be the best vehicle for securing the child’s welfare. He made a declaration that the duty on the Trust includes a duty to provide a range and level of personal social services to the children in need within its area and to the families and carers of those children in order to safeguard and promote the welfare of the children and the upbringing of those children by their families.

The judge then turned to the assessment by the Trust of the needs of the child. He said that the duty to carry out assessments is a mandatory statutory obligation, subject only to the condition that the Trust is first satisfied that the child’s family are persons for whom it may provide services under the Order. Mr Justice Treacy concluded therefore that the Trust had an unconditional statutory obligation to conduct the assessments requested by the mother in the letter of January 2009.

The court was told that the Head of Service for Children’s Mental Health in the Trust acknowledged receipt of the carer’s assessment which was completed in 2008 but stated that there was “no dedicated budget … for Children’s Mental Health and Disability Service to provide a service relating to children with Autism”. The court heard from the Assistant Director of the Western Health Trust who contested the accuracy of this statement. He asserted that there was some confusion or misunderstanding on the part of the applicant.

He said the Trust has a specific budget for autistic children services but any carer’s needs which are identified in carer’s assessments do not come from within this dedicated children’s autism budget but are funded, where possible, from the general budget available.

Mr Justice Treacy said that the budget that a service comes from is entirely irrelevant to children with autism and their carers. The important thing from their perspective is that a service which has been assessed as both necessary and urgent should be delivered in a timely way when it is needed. The Trust in this case failed to deliver any service from any budget to meet the assessed needs of the boy’s mother. The judge added that the mother requested a fresh assessment following her son’s attempt to hang himself.

Despite the Trust’s unconditional statutory obligation to conduct the assessment it did not reply to her request or a series of further letters. Mr Justice Treacy said that: “Given the crisis situation this family faced the failure to respond … was simply shameful”.

He made a declaration that the Trust was in breach of its duty by failing to carry out an assessment on the applicant’s mother as the carer of a disabled child within a reasonable time following her request to do so on 29 January 2009.

Mr Justice Treacy was provided with evidence that the Trust’s failure to respond to the request for a carer’s assessment for this family was only one example of the systematic failure to conduct such assessments in its area. He commended the CLC for their diligence in bringing together such a comprehensive and compelling picture of the scope and intensity of the difficulties in this field. He said it would appear that 41 families had received letters indicating a lack of current capacity to carry out carers’ assessments. The Trust did not dispute accuracy of this description.

Mr Justice Treacy consequently made a declaration that the Trust acted in breach of its duty by failing to carry out assessments within a reasonable time of carers of disabled children who had requested such an assessment during the period 2007-2010.