THE HIGH COURT

JAMIE SINNOTT (A PERSON OF UNSOUND MIND NOT SO FOUND SUING BY HIS MOTHER AND NEXT FRIEND, KATHRYN SINNOTT)
PLAINTIFF
AND
MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL 
DEFENDANTS
KATHRYN SINNOTT
PLAINTIFF
AND
MINISTER FOR EDUCATION, IRELAND AND THE ATTORNEY GENERAL 
DEFENDANTS
  
Judgement delivered by Mr. Justice Barr on the 4th day of October, 2000. 

Both actions arise out of the same events and were tried together.  I propose to treat them as one.

The evidence has established the following facts and conclusions on the balance of probabilities:-

Jamie Sinnott was born on 11th October, 1977.  He is now almost 23 years of age, the third child of nine.  Mrs. Sinnott, his mother, is separated from her husband for a number of years and has been Jamie's primary carer all his life.  At birth he was a healthy baby and developed normally for about the first four months.  Mrs. Sinnott is an American of Irish extraction.  She came to live in this country at or about the time of her marriage and Jamie was born here.  Her father, Dr. John Kelly, is a surgeon who has maintained close ties with Ireland and has a house in Co. Cork at Enniskean where Mrs. Sinnott and her children resided originally.  
When Jamie was about four months old he was vaccinated in the usual way.  Soon thereafter he began to develop autistic symptoms.  Subsequently, in course of her endeavours on behalf of autistic children generally, Mrs. Sinnott founded an organisation called The Hope Project.  She stated in evidence that she has details of about 300 families on computer who came to her for help - each having a child suffering from autism or other condition within the autistic spectrum.  In almost every case such children were, like Jamie, normal for the first few months of life and then sustained an insult of one type or another and became "derailed into autism".  Experience indicates that there usually is a precipitating event after which autistic symptoms emerge.  

The first symptom which Jamie displayed was that he began to scream incessantly as thought in acute pain.  He lost the ability to attach to the breast.  He became extremely distressed at light and sound.  He did not want to be touched or handled.  Mrs. Sinnott's description of him at that time was "He seemed to cry all of the time.  The only times he seemed to be happy is if he was in bed away from all sound and lights dimmed, curtains closed and no-one touching him;  then he could remain calm for short periods of time".  Jamie's problems also extended to physical incapacity.  This was very clearly demonstrated on an occasion when he was about six months old.  Mrs. Sinnott's sister paid a visit and brought her son, Barry, who was a month younger than Jamie.  Mrs. Sinnott described the two babies lying on the floor side by side.  "Barry was looking at this mother and smiling and kicking and doing all of the appropriate six months things...  Jamie was lying next to him, unusually not crying... just lying there completely flat, he was not doing anything and he was not looking at anybody...".  This was in sharp contrast with the interaction of the two babies when together up to the time when Jamie developed autism.  Jamie was then entirely normal in behaviour and was more advanced than Barry.
	
Mrs. Sinnott's father carried out an assessment of Jamie and became concerned about him.  Dr. Quigley, the family G.P., was consulted and he referred him to the paediatric unit at St. Finbarr's Hospital in June, 1978 where he was assessed by Professor Barry.  At that stage he had lost control of his jaw which had started to clamp.  He has never regained full jaw control and since then up to the present time he drools saliva which causes him on-going distress as well as creating an element of revulsion in those who come in contact with him.  Jamie was detained in hospital for a period of observation and tests on the basis of which Professor Barry advised that the child was not reaching his milestones.  He was healthy and they had found nothing physically wrong with him.  It was reported that all of his tests were normal.  On being pressed by Dr. Kelly, Professor Barry stated that he would not discount autism.  His advice was that Jamie be taken home and that they watch the autism develop.  They were not directed to any other service where the child might receive treatment, nor were they asked to bring him back to the hospital for further assessment.

Jamie was brought home and Mrs. Sinnott embarked  upon a search for appropriate treatment for her son which in turn developed into a crusade on behalf of autistic children generally - a huge struggle over two decades seeking to prevail on State health and education authorities to recognise autism and to provide appropriate education and training for those afflicted by it - particularly children like Jamie with severe or profound physical and mental disabilities which are frequently a feature of autism.  Anyone who heard Mrs. Sinnott's evidence in court and witnessed her demeanour must have been moved by her account of intelligent, selfless dedication and heroism in contending over the years with so much official indifference and persistent procrastination which has continued up to and through this trial.  It is a sad commentary that even at this late stage the State has failed to address realistically its constitutional obligation to provide for the on-going education of Jamie Sinnott.

The history of Mrs. Sinnott's efforts for upwards of twenty years to obtain education and care for Jamie and others seriously afflicted with autism and related symptoms is a very depressing story with many disappointments and set-backs arising out of failure on the part of officialdom to address the problem of autism and how it should be treated - notwithstanding substantial international progress in that area since the 1960's and earlier which is well-known and documented.  The evidence of Mr. Matthew Ryan, a senior administrator in the Department of Education who has particular responsibility in the area under review, underlines the depth of ignorance of autism and its problems at official level.  In Jamie's case the difficulty was aggravated by actual professional misinformation on how he should be treated which contributed to setting back his education and training for years.

Mrs. Sinnott's own family home is in Chicago, Illinois, where her father carried on practice as a surgeon.  Having endeavoured without success to obtain treatment for Jamie from several institutions in Cork, Mrs. Sinnott decided to bring him to Chicago and see what might be done for him there.  He was brought to the paediatric unit at Loyola University Hospital where he came under the care of Dr. Eugene Diamond.  He was detained for five days and had a comprehensive series of tests under a team of specialists.  He was found to be generally healthy and of good growth.  It appears that his substantial disablement was diagnosed as autistic in origin with a major deficit in motor development which affected his muscles, skeleton and general movement.  He was diagnosed as suffering from a psycho-motor problem the effect of which was that the brain was not sending messages to his muscles and limbs.  Mrs. Sinnott was informed that Jamie needed intense therapy designed to teach the brain to send the messages necessary to put him back on track.  The Loyola specialists recommended intensive intervention in the nature of occupational therapy, physiotherapy, speech and language training.

Jamie was then enrolled at the Disfunctioning Child Centre at the Michael Reese Hospital, Chicago, the director of which was Dr. Naomi Abraham.  The centre provides a range of therapists to deal with dysfunctional children, including those suffering from autism and related disabilities.  Jamie attended three sessions a week from the end of September until Christmas, 1978.  There were two sessions with Ms. Elizabeth Osten, occupational psychotherapist, and one session with other therapists or undergoing tests.  Every month a written assessment was made of Jamie's progress by the therapists concerned in consultation with Mrs. Sinnott and her father.  She described that when her son arrived at the centre he was screaming continuously and when not screaming he was lying there like a spongy lump.  He did not appear to see anybody or do anything.  She described him as being "glazed over" and not wishing to be touched.  He had also started to display repetitive autistic behaviour.  An autistic person is self-centred in a literal sense who tends to shut out the world around him.  He or she is also prone to repetitive behaviours such as pulling the hands and mouthing them.  The treatment at the Michael Reese Hospital brought about substantial improvements in Jamie's behaviour, physical capacity and enjoyment of living.  He was watching people and giving some eye contact.  He stopped most of his autistic repetitive movements.  He started interacting with people around him.  He ceased to cry and he even smiled.  There was quite a traumatic change in his level of happiness.  He was able to weight bear on his legs and to push with them.  He was able to sit up and could be put in a high chair with the family at meal times.  Mrs. Sinnott described that she and the family could touch Jamie and "he could be one of us in the midst of the family".  As time went on he developed his capacity to inter-act and he started playing with toys.

An important part of the training at the centre involved Mrs. Sinnott and Jamie's elder siblings.  Family collaboration and participation in Jamie's education and care was regarded as being of particular importance.  A detailed programme was developed with the intention of having it carried on when Jamie returned to Ireland.

Mrs. Sinnott was asked what practical differences did Jamie's improvement in Chicago make in her own life.  In response she spoke of the difference of being able to get a couple of hours sleep.  Previously she had to catnap when she could in the context of a very demanding, very upset baby.  She was able to put on some weight herself and have some more energy, time and freedom to work with her son.  She went on to say "As a mother having him actually look at me and acknowledge that he knew I existed, you know, that recharges a mother.  It enabled me to bring much more of myself to him.  In practical ways within the family the fact that he was looking at brothers and sisters re-enforced their interest in him.  You know everything seemed to run better... every single thing he gained had huge practical consequences for us..."  
Mrs. Sinnott returned to Ireland with Jamie and her other children at Christmas, 1978.  She was provided with a programme, notes and records from the Disfunctioning Child Centre and also medical records from Loyola Hospital.  She also had her own notes about the treatment Jamie had received while in Chicago.  The intention was that all of these would be handed over to Professor Barry and others in the belief that continuing treatment and educational facilities would be made available to Jamie in Ireland.  Dr. Abraham also expected that that would happen.  She had a particular interest because she had a home in West Cork which she visited frequently.  She had been assured that there were facilities in Cork similar to those provided at her Centre in Chicago.

Sadly the hopes of Mrs. Sinnott and Dr. Abraham were not realised.  It seems that nothing was achieved with Professor Barry and Mrs. Sinnott continued to be fobbed off by other organisations in Cork.  All the while Jamie regressed and gradually sank back to the situation he had been in before going to Chicago.  One of those approached by Mrs. Sinnott was Dr. Patrick Murray, now deceased.  He was a Southern Health Board psychiatrist who worked with the Brothers of Charity institution at Lota which dealt with mentally disabled children.  He did not respond at first. 

Mrs. Sinnott was asked how she reacted to her inability to obtain assistance for Jamie and, in particular, continuation of the successful treatment he had received at Chicago.  Her reply was "I was very upset.  The way I reacted was no-one on the phone was straight with me.  No-one on the phone ever said to me look these services do not exist, you need not ring again.  That would have been honest.  I would have done something about it.  Maybe I would have returned to the States, I don't know.  Instead it was all evasive.  It was all vague.  It was as if there was a wonderful service there but, but something...."  She concluded that one of the problems was living in Enniskean which is 28 miles from Cork.  So she moved to basic rented accommodation in the city and incurred financial hardship for herself and family in Jamie's interest.  She explained her difficulties to Dr. Abraham who wrote to Dr. Murray and this led to an appointment with him.  Unfortunately, Dr. Murray appears to have been misinformed as to the cause of autism in children.  In the 50's and 60's in America a doctor called Bruno Betlehime propounded the theory that children were made autistic by cold unloving mothers.  What were referred to as "refrigerator mothers" rejected their children and thereby made them autistic.  This theory had been discredited and rejected in the United States and elsewhere at the time when Jamie was treated there.  However, Dr. Murray did not appear to be aware of that.  He told Mrs. Sinnott that it was his policy to take an autistic child and cut him off from his known environment and put him into hospital for six weeks for the purpose of assessment.  Mrs. Sinnott was appalled by that suggestion, particularly having regard to her experience of watching the minimal attention which Jamie had received as an in-patient in St. Finbarr's Hospital.  She contacted Dr. Abraham who also shared her view that the proposal was "crazy".  She contacted Dr. Murray but, it seems, the only compromise which he was prepared to make was that Mrs. Sinnott might visit Jamie at weekends or perhaps even take him home then "if things were going alright".  Mrs. Sinnott was not prepared to agree to that course because she realised that Jamie's primary problem was isolation and she had been led to believe that to make him even more isolated was not the answer.  She also knew very well that she was not a "refrigerator mother".  Mrs. Sinnott stated that she had Dr. Murray's lecture notes to nurses in which he propounded the discredited Betlehime theory.  She also discovered the practical application of it subsequently when dealing with nurses at the Cork Polio Nursery.  Furthermore, she was informed later by three other parents who handed their autistic children over to Lota for six weeks at the behest of Dr. Murray that they deeply regretted having taken that course because when their children were returned to them a breach had been created which they were never able to overcome subsequently.  It is appropriate to add that it seems to be accepted by all on both sides of this case that Mrs. Sinnott is a loving, caring mother of exceptional dedication.

In November, 1979 Mrs. Sinnott was successful, through the efforts of her landlady, a medical doctor, to have Jamie assessed at Cork Polio, the forerunner of the COPE Foundation, by Dr. Irene Leahy, a psychologist, and Dr. McCarthy.  They were interested in the treatment he had received in Chicago and recommended that he needed services for five days a week.  However, that did not materialise.  He was given the benefit of what transpired to be a "baby-sitting" service run by nurses who, though kind and loving, were not teachers or therapists but were carers only.  It seems that they were also disciples of Dr. Murray's discredited theories on the cause of autism.  The baby-sitting service commenced in January, 1980 for a couple of hours per day, once, twice, or three times a week.  It broke up for the summer months and then recommenced.

As nothing was being done for Jamie who was regressing substantially, Mrs. Sinnott decided that he should return to the Disfunctioning Child Centre at the Michael Reese Hospital, Chicago.  She returned with him to her family home and he attended the centre as before for five months until April, 1981.  They were particularly interested in having him back again as they felt that it was not only an opportunity to help Jamie but also gave them a chance to see what could happen in rehabilitating a very young child through intensive services who had been seriously derailed by autism.  He was the youngest child they had  treated in  that regard.  They were concerned to ascertain how much of the long term disability could be avoided.  In consequence, he was accepted as a research project and no charge was made for his treatment at the centre. 

Lost ground was recovered and further progress was made.  Under the overall direction of Dr. Abraham, Jamie again came under the care of Ms. Elizabeth Osten, occupational psycho therapist, and also Dr. Margaret Creedon, developmental psychologist, both of whom gave evidence at the trial.  Each has long experience in the treatment of autism and related disabilities.  Having presented in much the same way as he had been originally in 1978, great improvement was achieved and when he returned to Ireland in April, 1981 he was well on his way to walking, beginning to crawl, able to play with toys, responding to people and having spoken his first word.  Most of the sessions at Chicago were videod.  In the last two weeks before returning to Ireland a teaching video was made at the centre for the benefit of people who would deliver the services and treatment that Jamie needed in Ireland.  It was shown at the trial.  Mrs. Sinnott offered it to the staff at the COPE Nursery and also to Dr. Murray with whom Dr. Abraham had again corresponded and other possible providers of services for Jamie, but no-one was interested.

As a result of further pressure exerted by Dr. Abraham on Dr. Murray she received assurances that appropriate services would be provided for Jamie, including a pre-school service at a school operated by Lota in Fitton Street, Cork.  In fact no such service eventuated and all he received there was more baby-sitting twice a week for two hours each session.  No teacher was provided and a nurse was in charge.  That service continued from September, 1981 until October, 1982.  From then until 1985 Cork Polio provided one (and later two) afternoons per week "a baby-sitting facility".  From 1985 until October, 1988 Jamie attended Cork Polio, at St. John's, Strawberry Hill initially and then at Montenotte, five days per week which was also a baby-sitting service with no formal education provided.  

In October, 1988 when Jamie was 11 years old he participated in a course of education for the first time.  Ms. Naomi Smith, a physiotherapist in Cork Polio, who had studied in Hungary at the Petit Institute set up an experimental conductive education unit for a period of six months at Tracton.  It was designed chiefly for physically handicapped people.  Jamie was not considered suitable for it but it was put to Mrs. Sinnott that if she could transport a neighbouring child to the course then Jamie could attend also.  The course was structured on a 'one to one' basis and was physical in orientation.  There was a lot of physical work which Jamie needed and he got on very well.  Walking, including use of stairs, was an important aspect.  He also learned to feed himself and he got top marks for toileting.  He was happier in himself and this was apparent at home.  There were six children on the course and all made progress.  The parents were encouraged to participate and attend the classes.  Sadly, at the end of the trial period it was decided at COPE not to proceed with the project.  This was regarded by Mrs. Sinnott and the other parents as a disaster.  There was at that time a waiting list of disabled children whose parents were hoping that the project would be expanded. There was also a difficulty about returning Jamie to the COPE day centre.  Before joining Ms. Smith's education project he was unsteady on his feet and inclined to fall which constituted a danger for other children.  In consequence, he had been obliged to sit down all day and this gave rise to regression in his autism.  Mrs. Sinnott hoped that Jamie would be allowed resume at the day centre with no restriction on walking as he had progressed so well on the Tracton course.  However, to her dismay she found that there was no place available for him at COPE.  This caused her to replicate as best she could with the aid of a neighbour the Tracton conductive education programme.  She bought similar equipment to that used by Ms. Smith and had considerable success with Jamie including an improvement in his mobility so that he could walk for two miles at a time.  This continued from March, 1989 to January, 1991.  Although reasonably successful, one difficulty was that Jamie became lonely through lack of contact with other children.  Fortunately, a place became available at the Our Lady of Good Counsel School at Lota which is for profoundly mentally handicapped children.   Jamie joined in January, 1991 when he was thirteen and a half years old.  He was in a "blue report" class, i.e., twelve children and one teacher, Ms. Yvonne O'Malley.  She found that she could not manage twelve children together so the group was divided into two classes, one in the morning and one in the afternoon.  By and large this was a successful experience for Jamie.  The main problem about it was that terms followed the same pattern as in primary schools.  The long summer break caused much distress for the child who seemed to be at a loss to understand why the regime he enjoyed was discontinued for so long.  He had a very good relationship with Ms. O'Malley who, in Mrs. Sinnott's opinion, was an exceptionally gifted and dedicated teacher.  Toilet training was a problem there, primarily because toilets were cold and substantially removed from the classroom.  It had been much more successful during the conductive education period.  Jamie still required a nappy and continues to do so at 23 years of age.

Jamie remained at the Our Lady of Good Counsel School for about two and a half years until June, 1993 when he was nearly 16 years old.  At that time the Education and Development Centre at Lota was restructured with disastrous results.  For reasons of funding the school became more health orientated than educational.  The judgment of O'Hanlon J. in O'Donoghue's case which laid down a class size of six for children suffering from severe or profound mental handicap was ignored and so was the "blue book" recommendation of twelve such pupils per class which Ms. O'Malley had discovered from experience was unworkable.  The new "school" had a class of twenty-three, including all twelve from Jamie's original class.  Ms. O'Malley was the only teacher.  In addition, there was a director of the project but she did not teach.  The centre opened in October, 1993.  Not surprisingly, Ms. O'Malley was unable to handle twenty-three seriously disabled pupils.  By the following January she was obliged to take leave as her own physical health was suffering under the strain of an ill-conceived regime.  Mrs. Sinnott reminded the headmistress about the O'Donoghue judgment and the group of parents asked her to obtain three more teachers in accordance with its terms but nothing happened.  Thereafter Ms. O'Malley confined herself to the original group of twelve children.  Not only had she no help from any other teacher, but the volunteers who had assisted her previously were also informed by the Brothers of Charity that their services were no longer required.  There has been no explanation of why that happened.  The only available assistants were some health care staff who had no teaching experience.  Eventually a second teacher was appointed for the remaining eleven younger pupils.  Jamie was allocated to the latter group but later was transferred to Ms. O'Malley's class.  He was bullied and subsequently assaulted and seriously injured by one of the other pupils and required treatment in hospital.  As a result of that he was transferred back to the younger children again which in terms of age was inappropriate for him.  From June, 1995 there was no further education at the Child Educational Development Centre and it became a health facility only.  The withdrawal of teachers also entailed the withdrawal of transport to and from the school as this had been provided by the Department of Education.  Even before the withdrawal of teachers, Jamie was receiving only one 45 minute teaching session per day with the result that 1994/5 was a bad year for him.  The converted premises for the younger group was small with not much space to move around.  Toilet training was not possible because the only toilet was downstairs and was used by the staff.  Jamie and some other disabled children may get tired during the day.  He could not lie down anywhere because no beds or beanbags were provided.  The point was taken up with the staff but the response was that if Jamie was tired he should not go to school.  An offer of beds made by the parents association was turned down.  It was not appreciated that disabled children might get tired at school.  All but Mrs. Sinnott and one other parent were pressurised by the Brothers to accept a health orientated scheme in lieu of that which had existed before.  The children of those who accepted the change were all resident at Lota and the parents did not wish to antagonise the Brothers by failing to support their proposition.  Jamie and the other child were day attenders.  The end result for Jamie in consequence of the change of orientation was that he lost much of his ability to walk and it was necessary to provide him with a wheelchair which had to be used at times even within his home.  Mrs. Sinnott described her son as being quite miserable at that time and he was not making progress in any area of his life.  He also was having epileptic fits more often than had been the case in previous years.  He had begun to have very short minor fits several years earlier.  About 40% of autistic people suffer from such manifestations.  

Mrs. Sinnott was asked to contrast Jamie's condition in March, 1995, when St. Martin's was dissolved as an educational model, with the way he had been when in Ms. O'Malley's class and in the conductive educational class earlier.  She responded by saying that it was like describing night and day.  He was not happy and he was not making progress.  Sometimes he wanted to go to the school and sometimes he did not, whereas earlier he had always wanted to go to school.  As already described, his capacity for walking had become severely diminished.  Mrs. Sinnott regarded St. Martin's as a failure and she stated that that was the consensus view of others at parents meetings.  That unhappy state of affairs continued for about two years in Jamie's life.  The plaintiffs' solicitors had correspondence with the Minister for Education in 1994/95.  The information furnished by the latter about services allegedly being provided for Jamie was untrue and indicates that the Minister appears to have been misinformed about the realities of the case (See Book 13 letter 19th September 1994 and subsequent correspondence - in particular the Minister's letter of 21st December, 1994).

Eventually the father of the other child who, like Mrs. Sinnott, had supported the concept of an educational facility, contacted the press in Cork as a result of which the refusal of the State to provide educational facilities for his mentally handicapped daughter received major front page coverage.  This brought about immediate capitulation and a special class was set up for Eimer and Jamie in January, 1996 at St. Paul's School, COPE.  Educational facilities with an enlightened qualified teacher, Ms. Miriam Kingston, was provided for five full school days per week.  Ms. Kingston had specialised training in dealing with children with severe or profound mental handicap.  She had some knowledge of autism; had much enthusiasm and was anxious to develop her ability in that regard.  There followed a short golden period in the education of Jamie which restored much lost ground and a variety of new talents were developed.    It illustrates graphically what would have been achieved if he had received similar education from his early years.  Ms. Kingston brought a lot of happiness into Jamie's life which helped him greatly in overcoming the misery of the previous two years.  He was then 18 years of age and it was necessary to lobby the Minister to obtain an extension of his education for another year.  Eventually agreement was arrived at in that regard.  The school year at St. Paul's had been lengthened in response to the O'Donoghue judgment and the summer holiday was only one month.  Unfortunately, when Jamie returned in September Ms. Kingston had left and this caused some disruption in his education - particularly when later in the year her successor took maternity leave and there was a succession of unqualified substitutes for several months.

In September, 1997 Jamie's time at St. Paul's was finally up and the school was not prepared to educate him any longer, even though, manifestly, he needed a great deal more training to make up in some way for the many years when no education had been provided for him.  An impasse emerged.  Mrs. Sinnott brought Jamie to school as usual.  He was allowed to sit in the class but received no education there.  Eventually she was told that it was intended to move Jamie to the Orchard, another institution at COPE, where he would join a class of six severely or profoundly mentally handicapped young adults of about his own age and would receive some education and instruction from an unqualified teacher who had little training in dealing with the profoundly handicapped and no experience at all of autism.  Mrs. Sinnott had serious reservations about the proposed move on the ground that by their own admission the authorities at COPE and the staff employed by them had no experience in dealing with any form of autism - far less severely autistic young adults like Jamie.  None of the others in his class were ambulatory.  They were not autistic and none had a range of problems like his.  No programme was devised for Jamie's education and training until halfway through the trial when a grossly defective one was cobbled together in haste which was roundly condemned by the experts - even those called on behalf of the defence.  It demonstrated a fundamental lack of understanding of autism and its problems.  Professor James Hogg, a world renowned authority on autism, stated in evidence that if one of his staff had produced the Orchard programme he would have been genuinely dismayed.  He went on to specify a series of fundamental flaws which it contained.  Professor Peter Mittler, also a major world authority on autism, who was called on behalf of the defence, was critical of the programme and the best he was able to say of it was that it might be a beginning on which a proper programme could be built.  In course of the trial a great deal of time was wasted by the defence in a forlorn effort to establish that Jamie was not autistic but that essentially he is profoundly mentally handicapped with some autistic tendencies.  In the end there was no sustainable case to support that extraordinary proposition having regard to the wealth of evidence and expert testimony, which I accept, that Jamie is severely autistic and has been so afflicted since he was about four months old.  (He was examined and diagnosed as autistic by, among other experts,  Professor Hogg, Dr. Creedon, Ms. Osten, Mr. Willis and Mr. Reid.)  That line was pursued in the hope of persuading the Court that the regime at the Orchard is appropriate for Jamie's education and training.  Manifestly it is not.  I am satisfied that Jamie was moved to the Orchard as a temporary stop-gap measure without any realistic knowledge of what his educational requirements are.  The decision-makers were, or ought to have been, well aware that having regard to his autism, it was entirely unsuitable for him, not least because of the absence of any staff with experience of autism and the special problems which it entails and the lack of crucial services such as speech and other therapies.

Mrs. Sinnott gave evidence about the CABAS (comprehensive applied behaviour analysis system) school which was set up in Cork in the summer of 1999.  It is a 'one-to-one' teaching service with auxiliary staff, for 12 autistic three to five year old children.  They suffer from varying degrees of autism, but three of them on entry were as disabled as Jamie had been at the same age.  It is run by an American professor, Burgus Grier, and his assistant Mrs. Keohane.  Mrs. Sinnott's daughter, Brigid, is a trainee teacher there who is studying for an MA postgraduate degree.  It is a pilot project which is intended to run for 3 years.  The school is having substantial success and the parents concerned are well pleased with it.  One of them, Mr. Brendan Toomey, gave evidence to that effect.  A particular success is in toilet training. The system devised is specially suited to the autistic mind.  Brigid Sinnott has adopted the same method at home in training her brother, Jamie, and in a short time she has had such success that it has been possible to discontinue the wearing of diapers.  He now rarely has accidents in that regard. Mrs. Sinnott has endeavoured to persuade Ms. Healy, Jamie's teacher at the Orchard, to adopt a similar system for him there, but without success and Jamie has reverted to wearing nappies at school.  This is another illustration of the lack of co-operation between the Orchard and parents. The end result is that Jamie has one system of toileting at home and another at school which causes him unnecessary confusion and sets back his progress in that crucial area.

Mrs. Sinnott and her daughter, Bridget, explained the CABAS system of education.  In essence the objective is to make everything very logical.  They examine every message they give a child and every message a child is trying to give them and they endeavour to ensure that everything they do is in the logical pattern of the messages which are interacting between the child and the teacher.  They are concerned not to give the wrong message to the child or to misinterpret a message received from him/her.  No system of that sort obtains in the Orchard.  Jamie is the only person in his class who is ambulatory.  The other five are confined to special chairs and so is Jamie though it is unnecessary in his case.  Mrs. Sinnott is dubious about the amount of teaching hours (such as it is) which he receives per week as on several occasions when she has called to the Orchard at times when the class ought to have been receiving instruction, the teacher was not present and no instruction of any sort was in progress.

Mrs. Sinnott has found that the disinterest in parental involvement at the Orchard differs greatly from Ms. Naoimi Smith's conductive education course where the parents were involved and were specifically brought in to watch what was going on.  Ms. Smith and her colleagues worked with the parents as partners who then tried to carry on the instruction at home.  She found a degree of partnership also with Ms. Yvonne O'Malley in her class at St. Paul's and again with Ms. Miriam Kingston in her class there.  They were concerned to develop a co-operative relationship with the parents.  She found that it was particularly beneficial for Jamie when there was interplay between parent and teacher and they worked in partnership for the benefit of the child.  Mrs. Sinnott has found from experience that such collaboration is the only way forward.  Her experience has been that the occasions when Jamie has made most progress were in programmes based on partnership.  Unfortunately, the general attitude at COPE is not conductive to that concept and there is little interaction and co-operation with parents.

Mrs.  Sinnott made it clear in evidence that her experience had been over the years that those caring for Jamie had always been particularly kind to him.  Her criticism of them relates solely to what she perceives as lack of experience, training and expertise and also the lack of a viable structured programme for his education and training devised in collaboration with her.  Experience has established that educators have achieved more with Jamie than health personnel.  Teachers are also more likely to co-ordinate efforts between school and home.  A few teachers, such as Ms. O'Malley and Ms. Kingston, have been successful in that regard and have achieved more with Jamie than health orientated carers with the exception of Ms. Naoimi Smith.

Mrs. Sinnott was asked about the time she had devoted to her son over the years.  She responded that she had spent a great deal of time in doing a lot of things.  Trying to be his mother, therapist and educator.  "Coping with things like dressing and lifting and things that I feel wouldn't have been necessary and hopefully will not arise in the future."  She referred to the fact that Jamie suffers a lot of frustration, particularly in connection with changes in regimes or withdrawal of regimes which he enjoyed and periods of depression arising out of his frustration.  The manifestation of depression is that he doesn't wish to move and curls into himself.  This has a gloomy effect on the entire family.  His physical capacity has also seriously deteriorated in times of regression - even to the extent of requiring a wheel-chair though previously he had learned to walk as much as two miles at a time.   As to the future; she stated "I have always envisaged taking care of Jamie and I have never planned on ever putting him into an institution as long as I can take care of him....".  The effect of lack of services for Jamie over the years on his mother was congently described by Bridget Sinnott in her evidence (see First Appendix).  When asked what percentage of her mother's time and thoughts were devoted to Jamie and his cause over the years her reply was "a huge disproportionate amount".
Although at best the likelihood is that Jamie always would have suffered from serious mental and physical incapacity arising out of his autism and related disabilities, even if he had received appropriate on-going education and training at an early age similar to that which he had in Chicago and which the CABAS organisation is pioneering in Cork, the expert evidence indicates a probability that his physical and mental capacity and his enjoyment of life would have improved substantially from an early age.   It is reasonable to assume that, in particular, he would have been fully toilet trained from early childhood;  his persistent drooling would have been cured or at least greatly improved long ago;  he would have been substantially more mobile and would have developed greater dexterity with his hands.  There are positive indications that his mental capacity probably would have improved and, through professional speech therapy, he may have developed in time a rudimentary capacity with language - though the latter development appears to be no more than a possibility.   Early signs indicate a probability that he could have been successfully trained for sheltered employment similar to that of the towel-folding youngster employed in a gymnasium which was referred to by Dr. Walsh in course of her evidence.  (See First Appendix)  This would have done wonders for his self-esteem by giving him the status of a place, albeit a very simple one, in the work-force.

All of the experts agree that the earlier a severely autistic and mentally handicapped child such as Jamie has specialised education and training the greater the likelihood of improving the capacity and quality of life of the sufferer.   Jamie has had less than three years of meaningful education and training so far in 23 years of existence.  He has suffered grievously through the failure of the State to meet its constitutional obligation to provide him with such services and its negligence in that regard.   The end result is that he has lost many years which in all probability would have been of great value to him in the improvement of his physical and mental capacity and quality of life through education and training.  Whatever happens to him in the future, that loss can never be fully restored because, as the experts point out, education now is arriving too late in his life to achieve optimum results.  Progress is more difficult and potentially more stressful for him than would have been the case if he had been educated from an early age.  At best he has suffered through lack of educational training a diminution in the quality of his life which has been substantial up to now but which will also continue significantly into the future - even if  he derives major benefit from the education and training now proposed for him.  It is probable that he will have a life-long need for on-going basic education and training consistent with his requirements as they emerge in the future.  Regular assessment will be important for him.

EXPERT EVIDENCE
Apart from Mrs. Sinnott and her daughter, Brigid (a trainee), the following experts gave evidence on behalf of Jamie:-
	Ms. Elizabeth Osten, occupational psychotherapist;
	Dr. Margaret Creedon, developmental psychologist;
	Ms. Marie-Louise Hughes, education psychologist;
	Dr. Patricia Nonan Walsh, clinical psychologist;
	Ms. Gillian Boyd, principal of Foyle Special School, Derry;
	Ms. Jennifer Nowell, speech and language therapist;
	Ms. Judith Brereton, music therapist;
	Professor James Hogg; Chair of Profound Disability, Dundee University.
	Mr. Alan Willis, education and psychology consultant;
	Mr. Albert James Reid, educational and clinical psychologist;
1	Professor Barry Carpenter.
	Dr. Michael Shevlin.

Some, such as Professor Hogg and Professor Carpenter, have major international reputations  in the sphere of autism and profound mental handicap.   Two other international authorities in that area, Professor Peter Mittler and Dr. Jean Ware, were called as witnesses for the defendants.   There was no significant controversy between their testimony and that of the other experts.   Aspects of evidence given by the foregoing (including Professor Mittler and Dr. Ware) and by Mrs. Sinnott and others who gave evidence for the plaintiff to which I have attached particular significance are set out in the First Appendix hereto.

The Defendants' evidence
Apart from the testimony of Prof. Mittler and Dr. Ware to which I have already referred, evidence adduced on behalf of the defendants' was in three segments.  First, that of Dr. M. J. Ledwith, psychiatrist, and Dr. Rita Honan, senior clinical psychologist of the Eastern Region Health Authority, in support of the contention that Jamie Sinnott is not autistic but suffers primarily from a profound mental and physical handicap with some autistic features.  As already stated, the defence hoped to persuade the Court to accept that assessment, even though it was against a formidable tide of expert testimony to the contrary, and to accept also that the Orchard is a suitable place for Jamie's ongoing education and care - notwithstanding the established fact that none of the carers there have any experience of autism whether in the nature of so called "autistic features" or otherwise.  The defence evidence failed to establish that proposition.  Dr. Ledwith ultimately conceded that Jamie Sinnott is autistic and that the autistic aspects of his condition should have been taken into account in the provision of appropriate education for him.  Dr. Honan, who was instructed in the matter on behalf of the State in course of the trial, deposed that through other work commitments she did not have sufficient time to carry out a full formal assessment of the plaintiff and she had so informed the defence.  She was unable to carry out tests which would have been of assistance in formulating her diagnosis.  She also had no time to read the reports and assessments made by fellow psychologists, Mr. Willis and Mr. Reid, nor to consider the various reports received from Chicago.  She had obtained extensive professional documentation from the State but through lack of time she read only those documents referred to in her report.  She did not see the Chicago or music therapy videos.  Dr. Honan's assessment was based solely upon Jamie's contemporary situation as it appeared to her at one short interview in November, 1999 supplemented by questioning Mrs. Sinnott on that occasion which was also limited to her son's contemporary situation.  She did not investigate his earlier history.  It transpired in course of Dr. Honan's evidence that there were many significant aspects of the plaintiff's contemporary and earlier behaviour of which she was unaware and which were relevant to a diagnosis of autism.  It seems to me that the criticisms made by other psychologists of her assessment of Jamie Sinnott and her opinion based thereon are well founded.  I am satisfied that her assessment was based on an incomplete and insufficiently informed investigation.  I reject her conclusions.  I have no hesitation in accepting the wealth of expert testimony that Jamie Sinnott suffers from, and has suffered almost all of his life from severe autism and related profound mental and physical handicap.  Even if both disabilities are not directly related, they each require specialist education and treatment.  In practical terms it is unreal to attempt to differentiate between them.  As previously stated I am satisfied that the Orchard is entirely unsuitable for the education and care of Jamie Sinnott and ought not to have been selected by the State for that purpose.  It is of interest that the selection was made without seeking or obtaining any expert advice as to its suitability for Jamie's education or the formulation of any programme in that regard.  It is obvious that it was a hurried, ill conceived stop-gap solution.

The second segment of the defendant's evidence comprises the testimony of Mr. Matthew Ryan, the Department of Education administrator having responsibility for special education of those with severe or profound learning difficulties such as the plaintiff; Mr. Peadar McCann, the senior inspector of special schools in Munster and parts of Leinster and Connaught; Mr. Gerry Buttimer, the chief executive officer of the COPE Foundation and Ms. Louise Healy, Jamie's teacher at the Orchard.  The third segment comprises relevant documentation, including inter-departmental memoranda and correspondence which throws much light on the attitude of the State towards the education of Jamie Sinnott and its response to the O'Donoghue judgment.  Aspects of testimony given by the foregoing witnesses and documentation to which I attach particular significance are set out in, respectively, the Second and Third Appendices hereto.

The following conclusions emerge from the defendants' evidence:-
It is established that the primary weakness in our administrative structure which has given rise to the plaintiffs' claims is twofold. First, insufficient liaison between Departments of State where a particular problem involves two or more of them (e.g. as in Jamie's case where he requires continuing education/training and also medical type services including various therapies) - see, inter alia, the evidence of Inspector McCann and Mr. Ryan in the second Appendix. The evidence of the latter, both senior officials in the Department of Education with long experience in the area of special educational needs, indicate that there is an urgent requirement for an integrated departmental approach to the fulfilment of the constitutional obligations of the State to disabled sections of society such as those like Jamie Sinnott who are profoundly handicapped and to whom a life-long obligation may exist.  I understand from their evidence that they regard it as unreal to draw demarcation lines between the obligations of individual Departments of State to such claimants.  The reality is that the constitutional obligation to provide primary education, training and health care for the plaintiff and others like him is that of the State per se.  It seems to me, as indicated by Messrs Ryan and McCann, that this must be recognised and accepted particularly in cases where the problem is obviously inter-departmental in nature.  It is encouraging to learn that a beginning has been made recently in moving towards integration of education and health services for the profoundly mentally handicapped.
 	
Secondly, the administrators in the Department of Finance, who play a major role in advising on the dispositioning of the financial resources of the State, appear to be insufficiently informed regarding the constitutional obligations of the State to the weak and deprived in society to enable them to assess realistically the degree of priority which should be attached to each such claim and the structure of priority which the State should devise in meeting its constitutional as distinct from other non-constitutional obligations.  It is, of course, a fact of life that in times of economic difficulty the State may be obliged to rein back severely on expenditure and many projects for which exchequer funding is sought may have to be postponed or curtailed through lack of resources at the particular time.  In such circumstances the need for government, and financial administrators, to exercise a balance of constitutional justice where appropriate in prioritising such claims is of particular importance.  This necessarily implies that the ultimate financial decision-makers and officials who devise annual revenue/exchequor budgets and administer State funds must have real awareness and appreciation of the constitutional obligations of the State to all sectors of the community and in particular to the rights of the grievously deprived in society, including those such as Jamie Sinnott who suffer profound mental disablement.  Those entitled to State aid by constitutional right should not have to depend on numerical strength and/or political clout to achieve their just desserts.  Needs should be met as a matter of constitutional priority and savings, if necessary, should be made elsewhere.  A citizen's constitutional right must be responded to by the State in full.  A partial response has no justification in law, even in difficult financial circumstances which may entail the raising of new tax revenue to meet such claims - happily a situation which has not pertained for several years.  Jamie Sinnott and those like him who are grievously handicapped have a profound need for on-going primary education, training and medical care and a constitutional right to such services from the State. Yet we find (as illustrated in the inter-departmental correspondence to which I have referred and the evidence of Mr. Ryan and the Mr. McCann) that Finance has persistently dragged its feet in recognising and implementing the obligations of the State as made abundantly clear by O'Hanlon J. in the O'Donoghue judgment.  It seems that the reason for that unhappy state of affairs is a lack of understanding by finance providers of the status and implications of the constitutional obligations of the State and in consequence an inability on their part to prioritise in constitutional justice claims made on the resources of the State by those having such rights which the State has an obligation to vindicate in full and as a matter of urgency.

The circumstances of this case also indicate that another problem area of potential difficulty arises out of the long established practice of the State in meeting many of its constitutional obligations to society at large, and to the handicapped in particular, not by direct intervention but through the employment of others, notably charitable and religious institutions, to provide services on its behalf.  The State is entitled to fulfil its obligations in that way and it may elect to discharge its duties through third party organisations.  However, if it takes that course I believe that it has an obligation to the service providers and to the beneficiaries of such services to adopt in discharge of its constitutional obligations a hands-on approach, as advised by Professor Peter Mittler, (see First Appendix pp. 36/7); to take a positive role in the organisation, provision and supervision of services offered on its behalf, and also to provide funds necessary to meet its constitutional obligations where they are contracted out in that way.  Professor Mittler's observations on the practice in New Zealand, where the structure as to the provision of such services is similiar to that in Ireland, is of particular interest.

The sad history of Jamie Sinnott is an indictment of the State and cogently illustrates that it has failed to participate actively and meaningfully in the provision of appropriate services for him and those like him over the years.  The history of some others referred to in this action comprise a similar indictment of the State.  It is unfair to the COPE Foundation and other such institutions, who are trying with great dedication to do their best for those suffering profound mental disablement, not to give them all necessary support in organisation and finance - including the provision of expertise, equipment and appropriately trained personnel necessary to provide the services which such claimants require and the State has a constitutional duty to provide.

The documentation contained in the Third Appendix hereto underlines the failure of Finance to accept the judgment of O'Hanlon J. in the O'Donoghue case that children with severe or profound mental handicap should have the benefit of a pupil/teacher ratio (PTR) of 6:1 and also two child care assistants per class.  The final paragraph of a Speaking Note for the Minister for Education and Science dated the 18th September, 1997 (see p 21 of the Appendix) for a meeting with the Minister for Finance is particularly illuminating.  It reads as follows:-

	"Given the original High Court judgment [in the O'Donoghue case], Department of Finance has used the impending Appeal as a justification for not conceding the PTR of 6:1 and the two child care posts per class.  As indicated above this excuse is no longer valid" 

In fact there was never any validity in that excuse.  In the light of the overwhelming expert opinion in the O'Donoghue case in support of a PTR of 6:1and the finding of the Government's own Special Education Review Committee that reported in 1993 soon after the judgment of O'Hanlon J. and which also called for implementation of such a pupil/teacher ratio for the severe or profoundly mentally handicapped, it must have been obvious to all in Finance that there never was any hope whatever of successfully challenging in the Supreme Court the findings of O'Hanlon J. regarding PTR and the provision of child care assistants for the education of those with severe or profound learning difficulties.  Government approval was ultimately granted on 29th October, 1998 (see Third Appendix p37) - more than five years after the judgment in O'Donoghue. In the meantime many hundreds of children with severe or profound mental handicap, including Jamie Sinnott, were deprived of education notwithstanding their established constitutional right to that service from the State.
	
It seems from the memorandum of the Secretary to the Government to which I have referred that it had been decided also that autistic children are to have a PTR of 6:1, but with only one child care assistant per class.  There is no evidence to suggest that any decision has been made at departmental or government level even yet about the provision of any ancillary services for sufferers from severe autism (e.g. speech, occupational and physio therapies and 
general health care) which are fundamental to their education and training.  That omission further underlines the apparent lack of appreciation by the State of the basic problems associated with severe autism and related disabilities.
	
The documentation also confirms that there are hundreds of claims broadly similar to that brought on behalf of Jamie Sinnott which are outstanding against the State. This is an alarming situation which points to a fundamental problem which needs to be addressed urgently.  It is the essence of a democratic society that we live under the rule of law.  It is important that the State should be seen to lead the way in support of that fundamental principle - particularly in the area of constitutional obligations.  It is unjust that the grievously handicapped, such as Jamie Sinnott, and their families should have to struggle painfully for years to obtain their constitutional rights; that they should have to contend with persistent obstruction and obduracy from officialdom as the evidence in these actions illustrates and that in the end they should be obliged to seek the aid of the courts as guardians of their constitutional rights.

In making the foregoing observations, I recognise that I should not trespass into the realm of executive or administrative decision-making by the State in which under the doctrine of separation of powers the Court has no function.  However, the evidence herein establishes that the difficulties encountered by Jamie Sinnott and his mother in pursuing their rights against the State are symptomatic of a widespread malaise.  It seems to me that the Court as the guardian of the constitutional rights of the citizen has a duty to criticise the response of the State to such claims.  In the instant case the grounds for criticism are overwhelming.  In my view the Court would be failing in its responsibility as guardian of such rights if it did not allude to the perceived problem areas which appear to have collectively contributed to the failure of the State to honour its constitutional obligations to the plaintiffs which comprise rights into the future as well as in the past.  It is now a matter for the State to assess the problem areas in its administrative and decision-making structure which have brought about its failure to honour constitutional obligations to the plaintiffs and other similiar claiments, and to remedy the situation thus revealed as in its wisdom it deems most appropriate.  Suffice it to add that having regard to the hundreds of similar actions outstanding against the State and the likelihood of many more in the future if the present situation persists, it is obvious that such a  review is imperative, not only in the interest of those who otherwise would become future claimants seeking constitutional redress against the State, but also in the interest of the State exchequer to avoid or reduce a potentially massive liability for damages and costs in such cases.

THE LAW 
The primary judicial authority relied upon by the plaintiffs in their respective actions is the judgment of O'Hanlon J. in the High Court in Paul O'Donoghue ( a minor) -v- The Minister for Health, the Minister for Education, Ireland and the Attorney General [1996] 2 I.R. 20.  It is a major landmark in Irish constitutional law and jurisprudence.  Paul O'Donoghue's situation was broadly similar to that of Jamie Synnott.  He was born in 1984.  At the age of 8 months he contracted an illness which left him physically disabled and profoundly mentally handicapped.  He resided in Cork with his mother.  His disability differs from Jamie's in that he is not autistic.  At the relevant time the COPE Foundation provided residential and day-care services for disabled children.  It was the only institution in the Cork area which was equipped to offer full-time education facilities to children with both physical disability and profound mental handicap.  When the applicant reached school age, his mother applied on a number of occasions to have him admitted there as a pupil.  These applications were refused on the grounds that there were no vacancies and he was placed on a waiting list.  His mother cared for him at home and arranged private education at her own expense.  He benefited from and enjoyed the teaching which he received.
	In 1992 the applicant,  then 8 years old, instituted proceedings against the respondents, seeking by way of judicial review an order of mandamus compelling the first and second respondents to provide him with free primary education.  Shortly afterwards the applicant was informed that he would be provided with a place at the COPE Foundation in the following September where he would be educated in a group of 12 pupils by one teacher, assisted by care-workers.
	In the High Court it was submitted on behalf of the respondents, first, that such efforts as were made to educate profoundly mentally handicapped children were of no real or lasting benefit to them, and that the applicant was effectively ineducable; secondly, that the education which the State was obliged to provide pursuant to Article 42, s.4 of the Constitution was education of a scholastic nature as exemplified in the curriculum for national schools, which could be of no benefit to the applicant; thirdly, that such training as could be provided for the applicant and as might benefit him could not be described as education or primary education, and, fourthly, that the applicant, having been provided with a place at the COPE Foundation, he had achieved the central relief sought and that the instant proceedings were accordingly moot.
It was held by O'Hanlon J.
(1)	that having regard to the provisions of Article 42, s.4 of the Constitution there was a constitutional obligation upon the State to provide for free, basic, elementary education of all children;
(2)	that such education consisted in giving each child such advice, instruction and teaching as would enable him to make the best possible use of his inherent and potential capabilities, physical, mental and moral, however limited these capacities might be;
(3)	that having regard to the evidence, which was to the effect that the applicant had made good progress and could make further progress, the applicant was not ineducable;
(4)	that the curriculum advocated for schools for profoundly mentally handicapped children was directed towards the promotion of the child's physical, intellectual, emotional, social, moral and aesthetic development; that this curriculum differed only in degree from the curriculum used in schools for the mildly and moderately mentally handicapped, which schools were integrated into the national schools system; and that education for profoundly handicapped children could, accordingly, correctly be described as "primary education" within the meaning of that phrase in Article 42, s.4 of the Constitution;
(5)	that it had been established on a world-wide basis for many years that children suffering from profound mental handicap could benefit from formal education.  Accordingly, there was a constitutional obligation upon the State to provide for free primary education for profoundly handicapped children in as full and positive a manner as it had done for other members of the community;
(6)	that while the respondents had granted the applicant a place at the COPE Foundation since the institution of the proceedings, this place was granted to him as a concession and could be withdrawn at any time at the discretion of the respondents [a situation similar to that of Jamie Sinnott at the Orchard];
(7)	that the facilities which had been provided to the applicant at the COPE Foundation were inadequate, having regard, inter alia, to the pupil/teacher ratio (PTR), the hours of instruction, the age of commencement, continuity and duration of education, and that the said facilities, could not, accordingly, be regarded as meeting the State's obligation to provide the applicant with free primary education;
(8)	that the applicant was entitled to an award of damages in respect of the respondent's failure to provide him with free primary education...

As to the requirements referred to at 7 above, O'Hanlon J. concluded in the light of the evidence of numerous expert witnesses on both sides that the pupil/teacher ratio should be 6:1 and that in addition there should be two assistants per group.
	The judgment includes an extensive review and analysis of world-wide developments in the area of education for children who suffer from sever or profound mental handicap.  As the State now concedes the finding of O'Hanlon J. that such persons are educable, it is unnecessary to reiterate in detail his analysis in that regard.  Suffice to comment that the learned judge traced developments in that area from the report to the Government in 1965 of a commission of enquiry into mental handicap which recommended establishment of a network of schools for children suffering from mild and moderate handicap of that nature (which was duly done).  He also examined in depth the report of a subsequent commission chaired by Mr. Sean Mac Glenoin, then Chief Inspector of the Department of Education, (who also gave evidence).  This report was published in 1983 and is known as the "Blue Report".  The commission concluded that children who suffer from severe or profound mental handicap are educable in special classes by appropriately trained teachers and that there should be a PTR of 12:1 in that regard.
	O'Hanlon J. accepted the evidence of Professor James Hogg and others that the severe and profoundly mentally handicaped are and have been for many years widely regarded as capable of education in a real sense.  He instanced developments in that field in England, Wales, Scotland and the U.S.A., in all of which countries it had been made compulsory by law to provide education for the severely and profoundly mentally retarded.  In bringing about the changeover from health to education in that area, Professor Hogg had stated that considerable international material had been available on the subject for many years.  He instanced the U.K. Change from Health to Education Report (1971), the Warnock Report (1978) and many documents and Acts of Parliaments responding to these developments.
	Mr. Jerry Buttimer, chief executive officer of COPE, gave evidence in the O'Donoghue action that his Foundation was the only place in Cork catering for those with profound mental and physical handicap.  They had one teacher provided under the Blue Report recommendations as of July, 1992 and at that time they could cater for 12 pupils at most.  He estimated that there were a further 24 disabled children in the Cork area living at home for whom they were unable to provide the necessary service and they were on a waiting list.  COPE had applied to the Department of Education in 1991 for more teachers but had had no response.  However, in 1992 when the O'Donoghue action was listed for hearing, sanction was given for one additional teacher.  As to back-up staff; he expressed the opinion that at least four child care assistants were needed i.e. two for each group of 12 children.  When asked about the feasibility of imparting education to severe and profoundly handicapped children Mr. Buttimer stated "we would be convinced that they are capable of being educated - I have been saying this for 20 years". [It is evident from Mr. Buttimer's evidence in the O'Donoghue case that for upwards of 8 years the State had been dragging its feet in the matter of implementing the basic recommendation in the "Blue Report" which had been formally accepted by Government.  More administrative foot dragging continued for 5 years after the judgment of O'Hanlon J. and persists to this day seven years later in relation to those, such as Jamie Sinnott, who suffer from autism in addition to profound mental handicap].
	Mr. Mac Glenoin gave evidence in the O'Donoghue trial that his Commission recommended a pilot scheme that should be set up for the education of severe or profoundly mentally handicapped children.  The pilot scheme was duly initiated in 1986.  A cadre of 19 special teachers were provided.  The Department of Education concluded in 1989 that the project was working reasonably well.  However, the scheme was not developed and was held back not only by Finance but also by divisions of opinion between different interests and the need for the full co-operation and support of two separate Departments of State - Health and Education.  [That problem too remains unresolved many years later although evidence in the Sinnott case indicates that in recent times there has been some movement in that area].
	It is also of interest that O'Hanlon J. quoted the following prophetic observation in chapter 11, para. 141 in the report of the Commission of Inquiry into Mental Handicap published in 1965;-

	"Targets in the care of the mentally handicapped are constantly changing; what was regarded as adequate a decade ago is not so regarded today; what is regarded as adequate today may not be so regarded in another decade.  In these circumstances, a continuous evaluation of the effectiveness of different forms of care and treatment is essential."

The third Irish report considered by O'Hanlon J. was that published in 1990 which was formulated by a review group on mental handicap services and is called the "Lilac Report".  He quoted with approval, inter alia, one of the important conclusions which is recorded at p.35 of the report:-

	"The results of a number of intensive programmes over the past decade have shown that there is scope for considerable improvement in the quality of life of persons with a severe or profound intellectual disability.  Such programmes require a major input of personnel and resources.  Provisions for this group of people simply by way of passive institutional care is no longer acceptable...an individual programme for each person is essential.  Intensive personalised approaches to the needs of such people will also reduce problem behaviour...the education curricula of students of all relevant professions should be reviewed to ensure that they are aware of and trained to deal with intellectually disabled persons within the community."

[Clearly the foregoing pertinent observation includes autism.  It has long been known and accepted, and it has been established again in evidence in Sinnott, that those who deal with persons who suffer from severe autism require specific training as to the nature of that form of disablement and how it should be addressed.  It seems that that need is not yet appreciated by Finance administrators in Ireland].
	In course of his conclusions the learned judge adopted the definition of education by O'Dalaigh C.J. in Ryan -v- The Attorney General [1965] I.R. 294 at p.350.

	"Education essentially is the teaching and training of a child to make best possible use of his inherent and potential capacities, physical, mental and moral."

O'Hanlon J. continued: 
	"What the Chief Justice there stated is in harmony with the dramatic advances which have been made since that judgment was delivered in seeking to alleviate the lot of the mentally handicapped through education, initially focusing on the mild and moderate cases of mental handicap and in more recent times including all children, however serious their handicap in the educational system.
	 The whole momentum, as evidenced in the declarations emanating from the Vatican, from the United Nations, and in the protocol to the European Convention on Human Rights, has been towards the provision for every individual of such education as will enable him/her - in the words of the Chief Justice - 'to make the best possible use of his [or her] inherent and potential capacities, physical, mental and moral' - however limited those capacities.
	 Counsel for the respondents, in closing their case, urged me to hold that it still remained uncertain whether the efforts put in to the education of the severely and profoundly mentally handicapped were of any real and lasting benefit to these children, and whether any advances made were not lost again as soon as the stimulus of the teacher was withdrawn.
	 I am lead to believe, however, by the evidence of Professor Hogg, of the applicant's mother and of the other mothers of handicapped children who were witnesses in the case, and by other evidence in the case, that this contention by the respondents is not well founded.  I am supported in this conclusion by the further evidence that for many years past it has been compulsory to provide educational facilities for this category of handicapped children in many countries, for example in the United States, in England, Scotland, Wales and Denmark, and it seems inconceivable that this enormous commitment of resources would have been undertaken without convincing evidence that it was worthwhile to do so."

O'Hanlon J. referred to Article 42 of the Constitution and continued:-

	"I conclude, having regard to what has gone before, that there is a constitutional obligation imposed on the State by the provisions of Article 42, s.4 of the Constitution to provide for free basic elementary education of all children and that this involves giving each child such advice, instruction and teaching as will enable him/her to make the best possible use of his/her inherent and potential capacities, physical, mental and moral, however limited these capacities may be.  Or, to borrow the language of the United Nations Convention and Resolution of the General Assembly - "such education as will be conductive to the child achieving the fullest possible social integration and individual development; such education as will enable the child to develop his/her capabilities and skills to the maximum and will hasten the process of social integration and reintegration".

	This process will work differently for each a child, according to the child's own natural gifts, or lack thereof.  In the case of the child who is deaf, dumb, blind, or otherwise physically or mentally handicapped, a completely different programme of education has to be adopted and a completely different rate of progress has to be taken for granted, than would be regarded as appropriate for a child suffering from no such handicap.
	The State has hitherto responded generously to its obligations in relation to virtually all of these categories of handicapped children, as has been recognised in the reports already referred to, but has clearly lagged behind many other developed countries in what has been undertaken on behalf of the small but most seriously handicapped group of all - the category to which the applicant in the present proceedings belongs.  Admittedly, it is only in the last few decades that research into the problems of the severely and profoundly, physically and mentally handicapped has lead to positive findings that education in a formal setting involving schools and teachers, educational equipment of many kinds, and integration as far as possible in the conventional school environment, can be of real benefit to children thus handicapped.  But once that has been established - and my conclusion is that it has been established on a world-wide basis for many years past, then it appears to me that it gives rise to a constitutional obligation on the part of the State to respond to such findings by providing for free primary education for this group of children in as full and positive a manner as it has done for all other children in the community...I therefore come to the conclusion that the education to which the applicant in the present case lays claim in reliance on rights derived from the provisions of Article 42 of the Constitution can be correctly described as 'primary education' within the meaning of that phrase as used in Article 42, s.4."
	
In assessing the services provided by the COPE Foundation O'Hanlon J. commented that:-

	"I am far from convinced, notwithstanding the very noble and dedicated work which is being carried out by those engaged in the pilot scheme at the COPE Foundation and elsewhere, that it can be regarded as meeting the specific obligation imposed on the State by Article 42, s.4 of the Constitution which provides for free primary education in the case of the applicant.
	The evidence in the present case was sufficient to convince me that the provision of free primary education for children who are severely or profoundly handicapped, mentally and/or physically, requires a much greater deployment of resources than was thought appropriate even as recently as 1983 when the Blue Report was completed.  To ask a single teacher to undertake the primary education of 12 severely or profoundly handicapped children, in my opinion, far exceeds the workload deemed appropriate for a teacher in the ordinary primary school where the pupils do not suffer from mental or physical handicap.  Mr. O'Gorman, former president of the National Association for the Mentally Handicapped, gave evidence that the teacher/pupil ratio in the United Kingdom was 2:5, and in Denmark he found that 2 qualified teachers and 1 assistant had responsibility for 7 pupils."

The learned judge also expressed the following conclusions:-

	"The evidence given in the case also gives rise to a strong conviction that primary education for this category, if it is to meet their special needs, requires a new approach in respect of:-
	(1)	Age of commencement: Early intervention and assessment being of vital importance if conditions of mental and physical handicap are not to become intractable.
	(2)	Duration of primary education: As this category will, in all probability never proceed further, and are unlikely to proceed far up the ladder of primary education itself, the process should, ideally, continue as long as the ability for further development is discernible. [Emphasis added. This seems to imply continuation into adulthood].
	(3)	Continuity of education: The lengthy holiday breaks which take place in the life of the ordinary primary school appear likely to cause serious loss of ground which may never be recovered in the case of children with severe or profound handicap.  Accordingly, to deal adequately with their needs appears to require that the teaching process should, as far as practicable, be continuous throughout the entire year.

		These factors lead me to believe that the respondents are mislead in their belief that the arrangements already made to provide a place for the applicant at the COPE Foundation are sufficient of themselves to satisfy any claim that may arise in his favour and the provisions of the Constitution to have free primary education provided for his benefit.
	...I am satisfied from the evidence in the case that the respondents have failed for 		some years past to carry out a duty imposed on them by the Constitution to provide 		for free primary education for his benefit, and for this breach of his constitutional 		right they are liable in damages for any loss and damage thereby caused to the 		applicant."

	I adopt with respect the learned judge's definition of education and his foregoing findings, including that relating to the right of the severely or profoundly mentally handicapped to primary education provided for by the State under article 42, s. 4 of the Constitution;  the pupil/ teacher ratio and care assistants ratio per group of six students.
  	In August, 1991 the then Minister for Education established the Special Education Review Committee comprising a group of 22 experts which was charged with the task of reporting and making recommendations on the educational position for children with special needs, including the linkage which should exist between the Department of Education and other Departments of State and the services provided under their aegis. By coincidence, the report of that body was furnished to the Minister almost coincidentally with the pronouncement of the O'Donoghue judgment and it was published four months later in October, 1993.
	The Report contains much information of importance and value in the assessment of the educational requirements of those who suffer from severe or profound mental handicap.
It is stated at pp. 19/20:-

	"In charting the way forward into the next century, the Review Committee proposes 	the following seven principles which should serve as basic guidelines for the future 	development of the system. [There are two of these which are of particular interest in 	Sinnot]..........
	
	Principle 3.
	The parents of a child with special educational needs are entitled and should be 
enabled to play an active part in the decision-making process; their wishes should be taken into consideration when recommendations on special educational provisions are being made ..........

Principle 7.
The State should provide adequate resources to ensure that children with special educational needs can have an education appropriate to those needs."

	In a section dealing with Childhood Autism (pp. 140/142) it is observed in the Report under a heading entitled "Nature of the Disability":-

	"This condition is recognised as one of the most severe mental disorders affecting children. While approaches to diagnosing autism may differ, there is general agreement that it is present from infancy...  For children with autism, identification and intervention early during the pre-school period is a first priority. It will be necessary to take account of factors such as the pervasiveness and degree of severity of the autistic symptoms and the level of intelligence and language development when considering the question of the most suitable school enrolment in individual cases..................... "
	It is of particular interest and significance that the Review Committee recommended a pupil/teacher ratio of 6:1 for pupils with autism who have been identified in accordance with accepted criteria, with one Special Needs Assistant for a class of 6, or 2 SNA where the students are also severly or profoundly mentally handicapped. It will be observed that the foregoing assessment is similar to that made by O'Hanlon J. in the O'Donoghue judgment which, surprisingly, was appealed by the State. Not surprisingly the ground of appeal that children who suffer from severe or profound mental handicap are not educable was abandoned at the door of the Supreme Court on 6th February, 1997 as was opposition to the pupil/teacher and SNA ratios specified in the judgement.  It is impossible to avoid the conclusion that such grounds of appeal were persisted in against an overwhelming tide of national and international expert opinion without any hope of success on the appeal but with the intention of delaying the implementation of the O'Donoghue judgment for as long as possible.  In the event, there was no compliance with it until 1998 -  5 years after the judgment.  Even then nothing was done for those suffering from autism. There is no doubt whatever that the judgment of O'Hanlon J. and the Review Body Report in 1993 made it absolutely clear that the State had a constitutional duty to provide for the primary education of those who suffer severe or profound mental handicap and that performance of that duty was a matter of urgency.

Diagnosis of Jamie Sinnott's Condition
	I note that in their closing written submission counsel for the defendants have again contended that Jamie Sinnott suffers primarily from severe or profound mental handicap with an overlay of autistic tendencies or characteristics (whatever that may mean). I have already commented on this persistent attempt during the trial to downgrade the autism from which the plaintiff has patently suffered since four months old and which has been well established by an abundance of expert testimony and other evidence, including video film and reports made by experts on Jamie's condition over the years, some of which have emerged from the defendants' own discovery of documents.  I have already commented that counsel sought to make that case for the first time during the trial when at a late stage Dr. Rita Honan was recruited to advise the defendants.  Based on insufficient research and investigation she has advanced the "autistic tendencies" theory since espoused by counsel for the defendants. Her evidence has been discredited and, as previously stated, I reject the opinions expressed by her which are of no value in the light of the admittedly inadequate investigation which she made. It is of interest that two experts of high international repute, Professor Peter Mittler and Dr. Jean Ware, who gave evidence for the defendants, and who had been advising them before trial, did not challenge Jamie Sinnott's autism and were not invited to support Dr. Honan's theories.  As previously stated, in the light of the evidence I have no doubt whatever that Jamie Sinnott suffers and has suffered since infancy from profound mental disablement, physical disablement and severe autism. Which of these conditions gave rise to which, and what connection, if any, there are between them does not seem to me to be of significance in the context of the primary education and training which Jamie requires. The autistic symptoms which he has displayed over the years and continues to display are obvious, numerous and seriously disabling per se. His history makes it abundantly clear that his autistic symptoms require a specialist education and training by experts in that sphere. The primary education which he needs includes features which are irrelevant to other profoundly handicapped students who are not autistic. He is the odd man out in his class at the Orchard - none of whom are ambulatory or autistic. His autism, which is a major part of his disablement, is not being addressed there because, as Mr. Buttimer has stated, COPE has no staff trained in dealing with autism or facilities, such as speech therapy, which is required in the treatment of that condition. Sadly, experience has shown that the Orchard is not good for Jamie. I accept his mother's evidence that he is regressing there. Nothing is being done by or on behalf of the State  to put matters right and to provide him with meaningful primary education having regard to his particular needs either at the Orchard or elsewhere. 

Limtations (if any) on Jamie Sinnott's right to primary education
	Two arguments have been advanced on behalf of the defendants which comprise the kernel of their case. The first deals specifically with age limitation and the other with retrospection. 
	
Age
	It is argued that the constitutional obligation of the State under article 42, s. 4 to provide primary education for those who are severely or profoundly mentally handicapped is a benefit which by implication applies only to children and, therefore, ceases when the child reaches the age of 18 years. In that regard reliance was placed on the definition of education by O'Dalaigh C.J. in the Supreme Court in Ryan -v- Attorney General [1965] IR 294 at 350 to which I have already referred.  That definition was recited with approval by O'Hanlon J. in O'Donoghue. In course of his judgment he stated that education "constituted giving each child such advice, instruction and teaching as would enable him to make the best possible use of his inherent and potential capabilities, physical, mental and moral, however limited these capacities might be".
	The issues which O'Dalaigh C.J. in Ryan and O'Hanlon J. in O'Donoghue were addressing did not include the question which arises in Sinnott as to whether the State's obligation to provide for free primary education under Article 42, s. 4 is subject to an age-limit or may be open-ended in particular circumstances. Neither had occasion to turn his mind to that matter. Each was dealing with a problem relating to all minor children in Ryan and a minor child of eight years of age  in O'Donoghue.  I do not accept that the foregoing definitions of education import into Article 42, s. 4 an age limitation which is not stated in the provision itself. It is also submitted that if the Court interprets it as being open-ended in given circumstances, that amounts to a declaration of an unspecified personal right under Article 40.s.3 which on the facts is not justified.  I accept that where the Court considers that a particular personal right ought to be regarded as an unspecified constitutional right that such a declaration amounts to a far-reaching exercise of judicial authority which if not justified would amount to an abuse of judicial power.  The making of such a declaration opens up a difficult area of constitutional jurisprudence.  Happily in this case those potentially hazardous waters do not require to be navigated by me. If Jamie Sinnott needs continuing primary education and related services from the State probably for life, which I am satisfied he does, it seems to me that his right to such services derives from Article 42, s.4 of the Constitution and is not a newly found and declared previously unspecified constitutional right.  The sub-article enacts that "The State shall provide for free primary education........ and when the public good requires it, provide other educational facilities or institutions..."
	As already stated there is general agreement that Jamie Sinnott suffers from severe or profound mental handicap with substantial autistic symptoms and has done so since he was about four months old. I have pointed out already that the only area of apparent disagreement is the relationship between his autism and his profound mental handicap. No one contends that Jamie's autism does not require specialist education, therapy and training by experts who are capable of dealing with that condition. He will probably remain grievously afflicted for the rest of his life, but if given appropriate education and ancillary services his condition and the quality of his life can be significantly improved. The education which he requires includes specialised instruction to help him contend with his autistic symptoms. It also includes the ancillary services such as speech therapy, occupational therapy, physiotherapy, job training and general health care which are an integral part of the primary education package which a disabled person such as Jamie Sinnott requires as a minimum meaningful education and training. There is nothing in Article 42, s. 4 which supports the contention that there is an age limitation on a citizen's right to on-going primary education provided by or on behalf of the State. It is evident that the right to primary education would be fundamentally flawed if narrowly interpreted as ending at an arbitrary age - eighteen years. It has been conceded on behalf of the Minister for Education that Jamie Sinnott at twenty-three years of age requires on-going primary education and training and that he will probably continue to do so indefinitely. However, it is submitted that his entitlement in that regard is not derived from Article 42 s.4.but, it seems, is an undefined "right" which is likely to be granted to him only by way of ministerial grace and favour.  If the Oireachtas reduces the arbitrary threshold into adulthood as it has done in the past (from 21 to 18 years) does that entail also an arbitrary contraction of the citizen's constitutional right to free primary education? That cannot be so.  The Oireachtas has no power to interfere with such rights - only the People by referendum may amend the Constitution.
	Jamie Sinnott's history graphically underlines the importance of on-going education and training  from early childhood as advocated by the experts on both sides which should continue for as long as it is required.  It follows, therefore, that in his case, and others like him, there is a fundamental need for continuous education and training which is not age related. In my opinion, in the absence of a specific provision in terms, it would be wrong to imply any age limitation on the constitutional obligation of the State to provide for the primary education of those who suffer severe or profound mental handicap. In the light of the foregoing I am satisfied that the constitutional obligation of the State under Article 42, s. 4 to provide and continue to provide for primary education and related ancillary services for Jamie Sinnott is open-ended and will continue as long as such education and services are reasonably required by him.
	In the final analysis the defendants' contention that Jamie Sinnott, and others who suffer from severe or profound mental handicap, have no constitutional entitlement to primary education and ancillary services after the age of eighteen years has no reality. In my opinion the ultimate criteria in interpreting the State's constitutional obligation to provide for primary education of the grievously disabled is "need" and not "age". If a child's disability is such that he/she requires on-going specialist primary education and training for life, then the obligation of the State to provide for that service will continue into adulthood for the lifetime of the child. To cut off a crucial educational life-line because a child has reached his/her majority and to thereby condemn the sufferer to the risk of regression in hard earned gains which have enhanced his/her life would amount to an appalling loss, the effect of which might be to negative the advantages of the constitutional right to education (if  provided) enjoyed by the sufferer for many years during infancy. The argument advanced on behalf of the defendants in support of the submission that I am obliged to hold that Jamie Sinnott's constitutional right to on-going education provided for him by the State ceased when he reached arbitrary adulthood, even though unsupported by the wording of the Article 42 s.4, is fundamentally flawed for the foregoing reasons.  Such an interpretation would create an obvious constitutional injustice.
	Notwithstanding the defendants' contention that there is no constitutional obligation to provide continuing primary education for Jamie Sinnott after he reached adulthood, a form of continuing education has been provided for him at the Orchard  in consequence of this litigation. However it does not meet the State's obligation under Article 42, s. 4 and no alternative service has been made available to him. I have already referred to the inadequacies of the purported form of education which he is presently receiving at the Orchard. I note that there are plans to provide an adult educational service there for those suffering from severe or profound mental handicap, including autism, which may eventuate in or about two or three years time. No firm plans are yet in being. If and when such a service does come on stream it may meet Jamie's on-going educational and related requirements. In the meantime the constitutional obligation of the State to provide for his continuing primary education should be met by the provision of sufficient funds for an alternative system of primary education, therapy and training which is suitable to his needs and such funding should continue, at least on an interim basis, pending the outcome of the possible developments at COPE. 
	
Retrospection
	The O'Donoghue judgment was delivered on  27th May, 1993. Jamie Sinnott first obtained treatment for his disabilities at Chicago in October, 1981. He reached the age of eighteen years on 11th October, 1995 and his action commenced on 6th January, 1997. His mother's action commenced on 17th December, 1996. 
	It was submitted on behalf of the defendants that Jamie's claims are tortious in nature. It is alleged that the "tort" in question did not exist until established by the O'Donoghue judgment and therefore the question of retrospection  beyond the date of that judgment cannot arise. In support of that contention the State relied upon the judgments of the Supreme Court in Murphy -v- Attorney General [1982] IR 241; McDonnell -v- Ireland [1998] 1 IR 135, and judgments of the European Court of Justice in Defrenne -v- Sabena [1976] ECR 455 and Barber -v- Guardian Royal Exchange [1990] ECR 1 - 1889. The judgment in Murphy declared unconstitutional certain provisions of the Income Tax Act, 1967 relating to the taxation of married women in a manner that failed to respect their rights under the Constitution. The effect of the judgment was that the relevant provisions in the statute are deemed to be void from enactment. None-the-less, the Supreme Court held that other claimants who had not commenced proceedings prior to the judgment in Murphy are not entitled to mount claims retrospectively. Counsel for the defendants submitted that by analogy with Murphy the constitutional right of those suffering from severe or profound mental handicap to the provision of primary education by the State was created by the O'Donoghue judgment and no claimant was entitled to maintain a retrospective claim prior to the date of that judgment. Accordingly, it was argued that Jamie Sinnott could maintain a claim under Article 42, s. 4 only from 27th May, 1993 until his eighteenth birthday in 1995. In my opinion that argument is not well founded. A crucial distinction between the particular facts in Murphy and the circumstances of O'Donoghue is that in Murphy the Supreme Court struck down a provision of the Income Tax Act, 1967 which until then had a presumption of legality. In O'Donoghue, O'Hanlon J. did not create a new right but declared that the obligation of the State to provide for primary education under Article 42, s. 4 of the Constitution applies to all citizens and that those who suffer from severe or profound mental handicap are not excluded form the constitutional benefit of appropriate primary education. That right has existed from the enactment of the Constitution in 1937 and failure to honour it has sounded in damages at least from the early 1970's when expert opinion widely accepted that those who suffer grievous mental disablement are capable of and would derive benefit from appropriate primary education. In short, Jamie Sinnott is not availing of a new right and cause of action which did not exist prior to the O'Donoghue judgment in 1993. The right which he enjoys existed from the time when he was diagnosed and treated in Chicago in October, 1981 and it remains on-going into the future. His entitlement to damages for breach of that right does not spring from the O'Donoghue judgment, the effect of which was to underline an existing right - not to create a new one.
	McDonnell's case deals with the enforcement of constitutional rights and contains the following passage from the judgment of Keane J. (as he then was) at pp. 158/159.

	"In Meskell -v-  C.I.E. [1973] IR 121, Walsh J. said at p. 132:-
	
	"It has been said on a number of occasions in this Court, and most notably in the
 decision in Byrne -v- Ireland [1972] IR 241 that a right guaranteed by the Constitution or granted by the Constitution can be protected by action or enforced by action even though such action may not fit into any of the ordinary forms of action in either common law or equity and that the constitutional right carries within it it's own right to a remedy or for the enforcement of it."

	I think that paragraph is perfectly consistent with the constitutional right being protected by a new form of action in tort, provided, of course, the form of action thus fashioned sufficiently protects the constitutional right in question.
	Nor do I see any conflict between that view and the passage in the judgment of Henchy J. in Hanrahan -v- Merck Sharp and Dohme (Ireland) Ltd [1988] 1 I.L.R.M. 629 on which counsel for the plaintiff relied. The learned judge pointed out at p. 636:-

	"A person may of course in the absence of a common law or statutory cause of action,
sue directly for breach of a constitutional right (see Meskell -v- C.I.E.);
but when he founds his action on an existing tort he is normally confined to the limitations of that tort. It might be different if it could be shown that the tort in question is basically ineffective to protect his constitutional right."

	"Keane J continued; 
	"There is nothing in that passage to suggest that were a plaintiff is obliged to have recourse to an action for breach of a constitutional right, because the existing corpus of tort law affords him no remedy, or an inadequate remedy, that action cannot in turn be described as an action in tort, all-be-it a tort not hereto recognised by the law, within the meaning of, and for the purpose of, the Act of 1957.
	Nor does the reference by Finlay C.J. in Conway -v- Irish National Teachers Organisation [1991] 2 I.R. 305 to "damages in tort or for breach of a constitutional right" assist the plaintiff. The learned Chief Justice was solely concerned at that point in his judgment with considering the differing headings of damages recoverable in Irish law, whether in an action for tort in the conventional sense or in an action for breach of a constitutional right. Whether the second category, actions for breaches of constitutional rights, could appropriately be grouped under the heading of "actions in tort" in other contexts, such as the Act of 1957, was not under consideration in that case".

	Later at p. 160 having referred to policy considerations which underlie statutes of limitation such as the Act of 1957, the following pithy observation was made:-

	"I can see no reason why an actress sunbathing in her back garden whose privacy is intruded upon by a long-range camera should defer proceedings until her old age to provide herself with a nest egg while a young man or women rendered a paraplegic by a drunken motorist must be cut off from suing after three years. The policy considerations identified by the learned Chief Justice ................ are applicable to actions such as the present as much as to actions founded on tort in the conventional sense."

	Barrington J. in McDonnell's case on the topic of dual causes of action i.e. constitutional and at common law, referred by way of example to a citizen's constitutional right to his/her good name which also has the protection of the law of defamation. He stated that in such circumstances the victim is obliged to avail of his remedy in ordinary law which entails being bound by the appropriate limitation period.
	The following conclusions emerge from the judgment of the Supreme Court in McDonnell:-

	(i)  Claims for damages for breach of constitutional rights as in the Sinnott actions are analogous to a common law action in tort and the relevant provisions of the Statute of Limitations, 1957 apply.
	(ii)  In Jamie Sinnott's case (and that of his mother) the duty of the State which gave rise to his claim is one deriving solely from the Constitution and there is no corresponding duty in ordinary law.  Accordingly it was appropriate for him to bring a constitutional action.
	(iii) Apart from the fact that he is profoundly mentally handicapped, a condition which stops the limitation clock from running against him, he was an infant until his eighteenth birthday on  11th October, 1995 and his action commenced within three years from that date. Accordingly, he is entitled to damages from October, 1981 (being the time when the State ought to have provided for his primary education) up to the present and into the future.

MRS. SINNOTT'S CLAIM
	Her claim is also based on breach by the State of constitutional rights enjoyed by her and there is no corresponding right in ordinary law. Defence counsels' submission dated 8th February, 2000 seems to concede by inference that Mrs. Sinnott has constitutional rights relating to the duty of the State to provide for appropriate primary education for her son, Jamie. The case made against her is essentially concerned with retrospection and also a contention that her claim relates to rights created by the O'Donoghue judgment delivered on 17th May, 1993.  As her action did not commence until 17th December, 1996 it is contended that it is barred under section 11(2) of the Statute of Limitations, 1957.  In my opinion  the latter submission is unfounded.
	In essence Mrs. Sinnott's constitutional rights vis-á-vis the State may be summarised as follows:-
(i)	She is and has been at all material times a defacto single parent and head of the Sinnott family of which she is the primary carer. Her position and that of the family is specifically recognised in the Constitution. The State guarantees to protect the Family in its constitution and authority ............... (Article 41. s.2.). In OB -v- S [1985] I.L.R.M 86 the Supreme  Court held that "the provisions of Article 41 create not merely a State interest, but a State obligation to protect the Family".
(ii)	Mrs. Sinnott and her family (in particular her son, Jamie) are entitled to equality of treatment by the State and ought not to be deprived without just cause of basic advantages which the State provides for others (Article 40 s. 1. "All citizens shall as human persons, be held equal before the law.....")
(iii)	The State shall provide for free primary education - and when the public good requires it, shall provide other educational facilities and institutions (Article 42, s. 4).  This is a right for the benefit of the Family as a unit as well as for individual members thereof.  If the State fails in that duty the burden of providing primary education for a child of the Family thus deprived will in the ordinary course devolve on the parents - in the present case on the mother as de facto sole parent.
(iv)	The State has failed to honour its foregoing constitutional obligations to Mrs. Sinnott and her son, Jamie, the foreseeable consequence of which has been, inter alia, that she has had imposed on her an inordinate burden, which has dominated her life, of endeavouring to provide for the education of her profoundly disabled child. There is no doubt that Jamie would have been a substantial problem for her even if optimum educational services and training had been provided for him. However, the evidence establishes that her burden has been greatly aggravated by the failure of the State to provide adequately for Jamie's primary education and for that aggravation she is entitled to appropriate damages.
(v)	Although the defendants' argument regarding retrospection which I have already addressed in the context of Jamie Sinnott's claim is in my opinion not well founded, the period of damage for which Mrs. Sinnott is entitled to compensation differs from that of her son where infancy and mental incapacity are relevant factors in the context of limitation of action. Having regard to the judgment of the Supreme Court in McDonnell's case (supra), it follows that Mrs. Sinnott's claim is analogous to a claim for personal injury in tort and is subject to the limitation period of three years as provided in the Act of 1957 in that regard. However, unlike a claim for personal injury arising out of, for example, a traffic accident where the date of the precipitating event determines the limitation period, the wrong done to her is a continuing one which existed from 1981 and has gone on since then. Her action commenced on 17th December, 1996. Accordingly, she is entitled to damages for the harm done to her from 17th December, 1993 and into the future.

The structure of the State's liability under Article 42 s.4 of the Constitution
	There is one other aspect of the State's obligations under the foregoing provision which requires to be addressed. In stipulating that the State shall provide for free primary education, the concept envisaged included a continuance of the structure which existed in 1937 when the Constitution was enacted on foot of which education was provided by non-state bodies, notably religious institutions, which were funded in whole or in part by the State. As previously stated, the latter does not have a constitutional obligation to provide education directly but may rely on other appropriate bodies to supply that service on its behalf. However, when the State elects to take that course in so doing it does not water down it's obligation under sub-article 4. In my opinion it retains primary responsibility for the nature and quality of the educational service which is provided on it's behalf. If that were not so then the State could shelter behind third party incompetence in a given case and seek to avoid constitutional responsibility for not providing a citizen with appropriate primary education.

Duplicity of Actions
	Finally, one other point has been taken by counsel on behalf of the defendants relating to Mrs. Sinnott's action. It is contended that she had no justification for bringing separate proceedings from that of her son. Such an argument would have substance if two separate actions were tried. However, in fact both actions were listed together and for practical purposes I have treated them as one and that will be reflected in due course in the matter of costs. 

CONCLUSIONS AND SUMMARY OF ESSENTIAL FACTS
Having reviewed all of the evidence adduced at the trial, I am satisfied that the following conclusions which are summarised hereunder emerge beyond reasonable controversy in the light of the established facts:-

	(i)	In the course of his 23 years Jamie Sinnott has had no more than about two years of meaningful primary education and training provided by or on behalf of the State.
	(ii)	Jamie was a normal child in good health up to the age of four months who achieved the usual milestones until then.
	(iii)	At or about that age there was a profound change in him.   He has been diagnosed as suffering from symptoms of severe autism and mental and physical dysfunction.   It is not in dispute that he is and will remain severely or profoundly mentaly handicapped. 
	(iv)	A period of partial schooling (two hours or less per day) which had continued for about 18 months came to and end in July, 1997, the explanation given being that by reason of age, Jamie was no longer entitled to State education.
	(v)	From 23rd September, 1998 in consequence of pressure deriving from this litigation which was then heading towards trial, a place was found for the plaintiff at the Orchard, COPE which provides for severely or profoundly mentally handicapped people of about his own age.  The group he joined also suffered from severe physical disablement and, unlike him, they were not ambulatory.   None were autistic.   The teacher in charge is unqualified and has no experience or training in autism and little training in dealing with the profoundly handicapped.   There was not then and never had been a programme for Jamie's training or education.   In course of the trial an ITC programme for the plaintiff was hurriedly assembled for the first time.   It was fundamentally flawed and was severely criticised by all of the experts, including Dr. Ware and Professor Mittler, the defendants' witnesses.   Mr. O'Reilly, counsel for the defendants, has conceded that it is inadequate and must be replaced.   Mr. Gerry Buttimer, the chief executive officer at COPE, conceded in evidence that his foundation has no-one available to it with experience of autism and no facilities for the education or training of autistic persons.   The regime at the Orchard has been (in my view rightly) criticised as being wholly unsuitable for Jamie's education and training.   The admittedly poor programme of instruction; the absence of essential therapies; insufficient facilities in that regard and the lack of any personnel who are trained in autism and its management amply bears that out.  Alternative meaningful education and training for Jamie is an urgent imperative.
	(vi)	Jamie probably will need further education and training for the rest of his life. In my opinion those are not no sustainable grounds for measuring his constitutional right in that regard in terms of actual age - particularly bearing in mind that the State has failed to honour its constitutional obligation to him for most of his life and in breach of duty has failed to provide such services for many years as a result of which he has suffered significant additional permanent harm.   Jamie has thereby lost valuable time which has not only caused him unnecessary distress, but has also significantly damaged his prospects of fully recovering lost ground in his education and training.    All of the experts agree that early intensive intervention with continuing education and training thereafter is of great importance if optimum results are to be achieved for those, such as Jamie, who are severely afflicted by autism and also physical and mental disablement.
	(vii)	The State has no alternative to the Orchard presently available to Jamie.   There are tentative plans afoot at COPE and a centre for education and training of adults suffering from severe autism and mental disablement may eventuate there in two or three years time.   Whether it will be adequately staffed with trained personnel and will be suitable for Jamie's on-going education, including job training which might lead to sheltered employment, remains to be seen.
	(viii)	Jamie has suffered substantial personal harm and damage by reason of the breach of constitutional duty of the State, its servants and agents, and its failure to honour its constitutional obligation to provide him with education, training and health care appropriate to his particular situation.   This has been aggravated by persistent failure to honour the terms of the judgment of O'Hanlon J. in O'Donoghue v. The Minister for Education and Others, and also failure to provide the plaintiff, whose afflications include severe autism, with vital ancillary services such as speech, occupational and physio therapies.
	
	(ix)	The State's breach of duty includes:-
		Failure to provide or have provided adequate primary education for Jamie Sinnott.
		Failure to provide continuity of educational and other services for him.  
		Failure to provide necessary ancillary services, in particular speech therapy;  occupational therapy;  physiotherapy;  and music therapy.   
		Failure to provide sufficient psychological and medical assessment and treatment for Jamie.   
		Failure to devise and operate an appropriate curriculum for Jamie's education and care.
		Failure to devise, revise and keep in operation a viable programme for Jamie's education and training and to do so in consultation with his mother.   
		Failure to keep adequate records of his education, training and treatment.   Failure to keep his mother adequately informed of her son's progress and of intended plans for his education and training.    
		Failure to collaborate with his mother in devising plans for his education and training.
		Failure to recognise and respond adequately to his needs.   
		Failure to give him adequate training in personal care, hygiene and mobility.
	Failure to address and provide instruction and treatment for his on-going drooling problem which is and has been a major difficulty for the plaintiff since infancy and a source of continuing distress.
		Failure to provide him with any occupational training which might enable him to obtain meaningful sheltered employment.
		Failure to provide for Jamie a teacher and other ancillary experts who are trained in autism and familiar with its problems.
		Failure to establish and maintain reasonable co-ordination between the Orchard and Mrs. Sinnott.  
		Placing Jamie in an institution (the Orchard) which is unsuitable to his requirements and positively harmful to him by creating a climate for regression.
		Failure to supervise adequately the services for Jamie Sinnott which the State contracted with the COPE Foundation and others to provide on its behalf from time to time.
		Failure to take any adequate steps to ensure that such services were structured in a meaningful, appropriate way.
		Failure to provide its contractors with the resources necessary to meet the constitutional obligation of the State to educate the plaintiff and to meet his special needs having regard to his particular disabilities as a person who suffers and has suffered from severe autism since the age of four months and major physical and mental handicap.
	(x)	Harm done to Jamie includes many bouts of anguish, physical and mental damage, depression and misery;  also deprivation of the degree of happiness, well-being and human dignity which on the balance of probabilities he would have enjoyed if the State had provided him with the primary education and training which was his right.
	(xi)	Mrs. Sinnott has also suffered harm, loss and damage by reason of the failure of the State to honour its constitutional obligation to provide adequately for her son's education and training, all of which was a reasonably foreseeable consequence of the State's conduct in that regard.

THE RELIEF
Both plaintiffs are entitled to the declarations which they claim in their respective Statements of Claim and to damages arising out of breach of their constitutional rights, negligence and breach of duty by the State in that regard.  In Jamie Sinnott's case further damages may be awarded on review of his situation in April, 2003.  The mandatory injunction claimed in each action shall be considered by the Court as part of the foregoing review, but, if necessary, the plaintiffs shall have liberty to make earlier application in that regard.

DAMAGES

(a) Jamie Sinnott
Special damages have been agreed as part of his mother's claim.   

As to the cost of future education and training;  I have already stated that I accept the unanimous opinion of the experts on both sides that Jamie is educable and is entitled to continuing education and training for so long as may be reasonably necessary in his particular circumstances.   The expert assessment is that he will probably require such services for life and I note that that point has been conceded by Mr. Ryan.  The plaintiff's rights in that regard are not limited by age.   Expert opinion also indicates that it is probably too late now for Jamie Sinnott to achieve optimum results from education and training.   The consensus view is that, none-the-less, substantial progress is likely if he receives the benefit of appropriate teaching and services.   In the interest of justice it is proper that he now should have the best available primary education and training so that he may have the maximum prospect of making up lost ground and thus limiting the degree of permanent damage which he has suffered through the defendants' breach of duty.   I have been much impressed by the evidence of Mr. Alan Willis about the ABA (Applied Behaviour Analysis) home-based programme for sufferers from autism which is presently being successfully pioneered in England.   I note that it has a methodology broadly similar to that of CABAS and the Disfunctioning Child Centre at the Michael Reese Hospital, Chicago.   It comprises an intensive 'one-to-one' education programme at home supported by a multi-disciplinary team comprising speech, physio, occupational and music therapists together with general medical care.   Mr. Willis advises that the course should continue for two to three years followed by a review of progress.   If necessary the experts required for providing the programme may be recruited in England or elsewhere.   The estimated annual cost is about £21,000 stg.   Allowing for the present currency differential the equivalent annual cost in Irish currency is approximately IR £28,000 p.a.    Bearing in mind that there appears to be some tentative plans for providing a centre at COPE, for continuing education of autistic adults which might prove suitable for Jamie, it seems to me that an equitable way of dealing with his future education and training is to have provided by the State a fund for a two and a half year ABA programme as envisaged by Mr. Willis.   Towards the end of that period Jamie should be assessed and, inter alia, due regard should be had to the possibility that a place may be available to him at a centre for autistic adults in COPE if one exists at that time and it offers a suitable on-going programme of education and therapy run by a sufficient number of appropriately trained and qualified experts.   In short, it may transpire then that the State is in a position to offer Jamie acceptable on-going education and training at the proposed new centre in COPE or, in the absence of such a facility, it may be necessary for him to embark on a further ABA programme or some similar alternative regime.   In the latter event, of course, it also would be necessary for this Court to award further damages to cover the cost of any additional programme which may be required.  It occurs to me that during the ABA 'one to one' programme Jamie may make sufficient progress to enable him to attend from time to time a FAS training workshop leading to meaningful sheltered employment.  I envisage that such work instruction would be in tandem with the ABA programme.

There is another element of potential further loss which Jamie may suffer i.e. earnings from sheltered employment if it transpires that through protracted delay in his education he is unable to learn sufficient skills now to open up that possibility.   On reflection, it seems to me that such a potential loss is too speculative to establish its likelihood on the balance of probabilities.  

Taking all the foregoing factors into account I assess damages in Jamie's case as follows:-

Estimated cost of the ABA programme of education for 
two and a half years at IR £28,000 p.a. (subject to review 	 = 	 £ 70,000
	                                                       on completion)	

Ancillary services for a like period (speech, physio, occupational and
music therapists and medical care).  Estimated annual cost £15,000-	=	£37,500

General damages for additional suffering, distress and loss of enjoyment of life from 
October, 1981 to date 	=  	£ 90,000

On-going distress in the future through gross delay in providing 
education and training, and permanent additional damage 
suffered by the Plaintiff on that account	= 	£ 25,000
			_______
	Total	=	£222,500

As Jamie Sinnott is of unsound mind, application should be made at an early date to the President of the High Court to bring the plaintiff into wardship and to administer the damages awarded to him.

(b)Mrs. Sinnott
The breach of duty of the State in failing to honour its constitutional obligations to Jamie and to her has given rise to a corresponding loss suffered by his mother and primary carer which also will have some on-going effect into the future.  She has had the anguish of seeing substantial progress made by Jamie frittered away through the failure of the State over and over again to respond meaningfully to his needs. She has seen time, a vital commodity for Jamie, squandered by bureaucracy.  It appears that she has worn herself quite literally to the bone struggling on behalf of her son.  Her heroic efforts to have education and care provided for him have dominated her life to a degree far greater than in all probability would have been the case if the State had honoured its obligations to Jamie and to her.   She has been subjected many times over the years to the lack of understanding of an apparently disinterested bureaucracy.   She has had to contend with the distress and indignity of having to deal with various problems of a child, now a man, which, if the State had provided appropriate services when required, probably would have been resolved many years ago - not least of these are his present lack of mobility, persistent frequent drooling and the continuing need for diapers at the age of 23 years. I have no doubt that all of these elements of avoidable anguish in Mrs. Sinnott's life are consequences of the State's breach of duty in failing to honour its constitutional obligations to Jamie and to her. She has responded to that failure with indefatigable love, courage and devotion but at great personal cost.  In that regard she is following in the footsteps of Mrs. Marie O'Donoghue and Mrs. Annie Ryan who gave evidence at this trial and many other heroic parents of grievously disabled children who have had to contend with similar difficulties.   The State's breach of duty and failure to honour its constitutional obligations has also created distress which for the reason explained in Jamie's case will continue indefinitely, albeit to a lesser degree, even if his future education is reasonably successful.
As to damages;  I note that specials (which include Jamie's case also) have been agreed at £15,000.

It is difficult to assess compensation for a devoted mother's overlay of distress and anguish in a case like this and for the burden of unnecessary work inflicted on her over the years both as a carer and in her struggle trying to achieve Jamie's rights from a reluctant beaucracy.  If, like him, Mrs. Sinnott was entitled to compensation from October, 1981, I would have awarded her general damages of £80,000 from then until now.  However, as she is entitled to compensation only for the wrong done to her from 17th December, 1993, there must be a substantial reduction in that amount.  She is entitled to a modest sum for probable continuing distress in the future arising out of the loss of time which militates against Jamie making the degree of progress which he probably would have made if he had received from the State early primary education and training.  That situation casts at least a minor cloud over Mrs. Sinnott's future (including on-going avoidable work) which ought not to be there and for which in my opinion she is also entitled to compensation.

I assess damages for her as follows:-

Agreed specials 	= 	£15,000

General damages from 17th December, 1993 to date	=	£30,000

General damages in the future	=             £10,000
			_______
		TOTAL		£55,000

POSTSCRIPT
The conscious, deliberate failure of Finance administrators to pay due regard to and take effective steps to honour the obligations of the State to Jamie Sinnott on foot of the O'Donoghue judgment opens up an issue as to whether punitive damages should be awarded against the defendants.  As that point was not argued, I do not propose to pursue it in this judgment.  However, it is proper to lay down a marker that the issue of punitive damages will arise if it transpires in future litigation that this warning is not heeded and decision-makers persist in failing to meet the constitutional obligations of the State to the grievously afflicted and deprived in our society with the urgency which is their right.

[SEE HARD COPY FOR APPENDICES TO JUDGMENT]