There are 13 children currently in acute hospitals "beyond medical need" due to a lack of an alternative appropriate facility for them, the Health Service Executive (HSE) has confirmed.
In response to queries from RTÉ's Saturday with Colm Ó Mongáin, the HSE said that five of the children were currently being assessed for admission to facilities run by the Child and Adolescent Mental Health Service (CAMHS).
No information was provided on the other eight children, all of whom are aged under 17.
It is not clear how long any of the children have spent in hospital.
Where a child may be suitable for discharge to home, the HSE said: "All funding applications for paediatric home care packages for children with complex medical needs are submitted to Primary Care Operations and are reviewed and approved with two or three days to allow the care package to be put in place and to facilitate discharges."
For those children in hospital who are in need of a residential placement, the HSE said delayed discharge to such a facility can be due to "delays in a selected provider being able to provide the necessary accommodation, staffing, or both" or there may be "ongoing engagement with the family and others to determine what the most suitable support arrangement might be to meet the child’s needs".
Where a child with complex needs is awaiting a placement in an appropriate facility, the HSE stated that "all elements of the service system agree that it is entirely inappropriate for a child to be in a hospital setting when a suitable and appropriate service is not available".
Earlier this week, the publication of the most recent Child Law Report revealed a teenage girl with challenging behaviours had been kept in a room off an emergency department for 60 days in 2021.
The High Court "heavily criticised" the HSE for failing to meet the needs of the girl.
The teenager did not go outside for two months, had no education or physical activity, and did not have a TV or Wi-Fi for a period.
The girl's mother brought judicial review proceedings that this was a denial of her child's rights and requiring the HSE to provide the teenager with an appropriate residential placement.
The HSE argued that the child was not being damaged by the circumstances in which she was living, and that the Child and Family Agency (CFA) should have sought to take her into care.
The mother won her case, with the High Court judge stating: "What is required - is the need for the provision of disability services to a child - and such provision, without a shadow of legal doubt, is the legal responsibility of the HSE.
"The CFA can support the HSE in the provision of that service. However, it is not within the CFA's responsibility or power or function to provide disability services: that is entirely for the HSE."
CEO of the Child Law Project Dr Maria Corbett highlighted the case as an example of the consequences of State agencies failing to work together for the best outcome for a child.
Referring to the Joint Protocol for Interagency Collaboration between the HSE and Tusla, which was put in place in 2020, Dr Corbett said the protocol "is not consistently adhered to or is only applied at the 11th hour".
Minister of State Jack Chambers said that the case of the girl with a disability who was left in a dark hospital room for 60 days was "totally unacceptable".
Speaking on the same programme, he said that it was a shocking dereliction of care and that the HSE and Tusla "need to get their act together".
He said State agencies need to be focused on the interests of the child and not on managing internal budgetary processes.
"That is secondary to making sure the most vulnerable are supported in their care," he added.
Mr Chambers was responding to the HSE's confirmation that there are currently 13 children in hospital beyond medical need.
Tensions between Tusla and HSE
Correspondence released to Saturday with Colm Ó Mongáin under Freedom of Information reveals tensions between Tusla and the HSE on which agency should take responsibility, and which agency should pay for services, for children with complex needs.
In a February 2021 email from an official in Tusla to his counterpart in the HSE, the Tusla official states that he is concerned that "the level of shared responsibility and planning is not being embraced in line with both the Revised Joint Protocol and the MoU (Memorandum of Understanding)".
Internal communications between HSE staff relating to cases referred to them by Tusla concentrate almost exclusively on the cost of taking on responsibility for the care of children who may come under the remit of Community Health Organisations. the local divisions of the HSE – due to the nature of their disability or because they are soon to turn 18.
In correspondence between Disability Services staff in September and October 2021, there is discussion of pressure from Tusla and a Guardian ad Litem (GAL) for the HSE to part-fund a placement for a child.
A Guardian ad Litem is an independent person appointed by the courts to represent a child’s best interests.
The HSE official writes: "I am under pressure from the GAL and Tusla to agree to the 50/50 process...I have been advised if I delay the process by not agreeing the funding, the GAL will bring the case back to court.
"While I am in agreement that the placement is suitable for XX, however I understand that we (Disability Services) do not have funding for the placements."
In another exchange, there is discussion between HSE staff about how to negotiate on the funding being requested.
"Tusla is looking for us to fund a €640,000 placement that I would argue is overpriced. Given that this is the first time that this case has come to light, ask Tusla to absorb the costs for 2022 and we can submit for costs in the 2023 estimates process?
"This is one of many cases where we can quote from our Memorandum of Understanding that all funding is 'subject to available resources.’"
Children 'fall between the cracks' - Professor Conor O'Mahony
A memo dated 14 February 2020, advises HSE officials that "Community Healthcare Organisations have no sanction to incur additional expenditure over and above your approved budget and financial framework".
In the Joint Protocol on Collaboration between the HSE and Tusla, both agencies commit to working together "to provide a person-centred pathway to meet the needs of children with complex disabilities".
In one email exchange, relating to a child who it is stated will require two staff to care for them alone, a HSE official questions how this child had deteriorated from a point earlier in their life when they were identified as having great potential.
It read: "I am concerned that a person who at one stage was identified as potentially benefitting from the Centre of Talented Youth Ireland in the future, is now in need of a service costing €1.2m per annum."
Speaking to Saturday with Colm Ó Mongáin, Professor Conor O’Mahony, who was Special Rapporteur for Child Protection from 2019 to 2022, said the issue of interagency cooperation and the working of the Joint Protocol had been an ongoing problem in the management of children with complex needs.
"The evidence to date is that it still has not addressed the most complex cases and you have children who really need a multi-agency response...fall between the cracks where different agencies try to suggest that something is not their responsibility but really the responsibility of another agency and the ultimate experience of a child at the end of that is that they don’t receive the service they need," Prof O’Mahony said.
Mr Chambers said State agencies need to focus on the interests of the child and not on managing internal budgetary processes.
"That is secondary to making sure the most vulnerable are supported in their care," he said.
He added that the HSE and Tusla "need to get their act together".
"It needs to be totally child-centred and we can’t have siloing within agencies when it comes to vindicating the interests and rights of a child," he said.
