Alison Millar was recently approached by a mother who had tried unsuccessfully for a year to obtain occupational therapy treatment for her autistic son. Following the threat of judicial review the Primary Care Trust (PCT) responsible soon offered the family an initial occupational therapy (OT) assessment, and have confirmed that they will pay for any resulting treatments that are recommended.
Discrimination by diagnosis
The case raises some interesting points about discrimination by diagnosis.
The child in question is autistic, he goes to a mainstream school (with the help of a teaching assistant) and has a statement of special educational needs, setting out the difficulties he has learning and the support he needs to help address them. One of the objectives identified in his statement is the development of his motor skills and he was recommended for OT by his consultant at his local autism support and development team. Occupational therapy is a treatment that has been shown to address the sensory processing, motory skills and play deficits that are found in children with autism.
However, his mother was dismayed to be told that her son would not be eligible for OT because children with autism in the area were not included in the referral criteria which the PCT used for paediatric OT and physiotherapy services. She obtained a copy of the criteria, which clearly showed that children with autism were excluded from accessing these services whereas children with other conditions such as the developmental co-ordination disorder (dyspraxia) were included.
It seemed to us highly unfair and discriminatory that a situation could occur where there might be two children, one with autism and one with a different disability, but both with a similar problem that could benefit from OT - yet the autistic child would not be able to access the service. We challenged this on the basis that the blanket exclusion from access to therapies for all children on the autisic spectrum, regardless of need, amounted to blatant discrimination.
SHA/PCT mergers
The situation seems to have been exacerbated by the recent national re-organisation and merging of Strategic Health Authorities (SHA) and PCTs. This has left a situation where policies on treatment are often at conflict with each other even within your local area as merging bodies do not always use the same criteria for assessing eligibility for treatment or therapies.
In this case, there were, in effect, conflicting policies on the funding of OT within the same PCT, due to the differing policies operated by the PCTs from which the PCT had been formed. The PCT had not adopted a common policy to harmonise the various conflicting policies. We challenged the PTC on the basis that this was unacceptable and unlawful.
Lawyers at Leigh Day & Co are experienced in representing families who have been denied services by their local health and social services. Alison Millar, partner in the human rights department, was instructed in this case. Within a very short time the PCT agreed to provide occupational therapy and assessment, a decision that has delighted the client's family.
However, there must be many families around the country who are being denied treatment for children with special needs.
Alison Millar said:
"Postcode prescribing is meant to be a thing of the past but we find that there are significant geographical variations in the provision of services, as this case illustrates. The NHS seems to want to find ways of denying patients access to treatments, rather than offering the treatments that are needed. I am saddened that my client's family had to face a battle with the PCT to obtain a therapy that all professionals agreed would be of benefit to him".
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Alison Millar on 020 7650 1200.
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