Order of Mandamus brought on behalf of applicant suffering from profound and severe mental and physical disabilities against the Minister for Health, the Minister for Education, and the Attorney General to compel the provision of free primary education.
Applicant Paul O’Donoghue was born in November 1984 and contracted Reyes Syndrome, a serious viral infection, at eight months old, suffering brain damage as a result. He acquired severe mental and physical disabilities, and received intense physiotherapy in a hospital for two years after which he was discharged. From 1986 to 1991, Paul received sporadic training to improve his motor skills, responses, and recognition abilities, with most of the costs being born by his mother. On several occasions, he was denied full-time admission to state funded pre-school facilities due to their inability to accommodate the severity of his mental disability. By 1991, the only state aid provided for Paul’s education was a total of six hours of teaching, which his mother deemed totally inadequate, as children with mild or moderate disabilities received then full-time education with free transportation. In early 1992, O’Donoghue’s mother filed suit, requiring the respondents to provide free primary education for her son. , In its decision, the High Court followed an earlier Supreme Court definition of education as being “the teaching and training of a child to make the best possible use of his inherent and potential physical, moral, and mental capacities, a definition in harmony with other definitions established by the United Nations and the European Convention on Human Rights”. Furthermore, the High Court pointed to evidence that providing education for children with severe mental disabilities could improve their lives. The Court also understood that there had been a violation of Article 42 of the Constitution, which guaranteed free primary education to all, interpreting primary education as principal advice, instruction, and teaching necessary to help each child achieve their “fullest possible social integration and individual development”. The violation was made clearer by the fact that primary education was being provided for children with mild and moderate disabilities. The Court awarded money damages to the family.
Keywords: O’Donoghue v. Minister for Health & Ors, [1993] I.E.H.C.2 (Ir.), Children, Disability, Education, Rights, Equality, Nondiscrimination
The State was very slow to respond in any meaningful way to the High Court order, for which it was heavily criticised in later judgments. Ultimately, however, the applicant was provided with the requisite facilities, albeit still in a grudging fashion. In the broader scheme of things, this judgment, and its progeny, played a part in bringing about the enactment of the Education for Persons with Special Educational Needs Act 2004 and the Disability Act 2005, both of which purport to address the educational needs of children with disabilities. Both Acts have, however, been consistently criticized by disability rights activists.
For the first time the constitutional right to education was explicitly interpreted as covering educational needs of children with severe disabilities. This case, then, became the basis for a series of challenges in the late 1990s and early 2000s dealing with the State’s failure to make adequate provision for children with special educational needs. The scope and potential of the O’Donoghue judgment has, however, been somewhat tempered by more recent Supreme Court judgments (such as Sinnott v. Minister for Education, [2001]IESC 63(12 July, 2001, available at: http://www.bailii.org/ie/cases/IESC/2001/63.html).
