Child Care Solicitors

When it is suspected that a child may have autism or ADHD, a specialist assessment is needed to confirm a diagnosis. In the case of autism this must be a multi-disciplinary assessment. Diagnosis is important for a child as it helps those around them to understand their needs and can open the door to the support they require being provided formally, for example under an Education and Health Care Plan. This is the document that sets out the support and adjustment a child needs in school and, often underpins the choice of the correct educational environment. These specialist assessments are carried out under the NHS but waiting times are substantial. The length of time a child will spend on the waiting list will depend on the particular NHS trust but typical waits run to years. In many cases, children spend a significant proportion of their time in school essentially treading water waiting for assessment which will guide how their education is best provided. Time and opportunities are lost for these children and their future outcomes are impacted. Private diagnostic assessment will reduce waiting time such that diagnosis can be achieved in matter of months but the cost, for a lot of families, is prohibitive. So, is there another route for a parent seeking timely diagnosis for their child? 

In most cases where any referral is made under the NHS, the patient has the ‘right to choose’ the person or service who provides the assessment or care. This includes the legal right to ask for your care to be transferred to a different provider if you’re likely to wait longer for it under usual NHS channels than maximum specified waiting times.

Crucially, this means that a patient can choose to be seen by a private service, as long as that organisation provides similar services to the NHS. Many private services who carry out diagnostic assessments for neurodivergent conditions do provide these services through the NHS. The National Autistic Society website sets out the rights of those seeking an autism assessment to choose the service that carries out the assessment and confirms that the ‘right to choose’ applies in these circumstances, provided that eligibility criteria are met. The eligibility criteria would cause no issue in most cases. They exclude those in prison, those detained under the Mental Health Act, those serving in the armed forces and those admitted to hospital or needing urgent medical testing. They require that the person exercising the right is registered with a GP in England and that the nominated service, as above, provides diagnostic assessments for the NHS, which very many private services do.

For many families, this route represents a quicker and easier journey to diagnosis and a better understanding of a child’s presentation and needs. When families reach crisis point, they often can’t wait months or even years for answers. There is a potential downside though. When a diagnosis is needed to underpin an application for an EHCP, councils will not always accept a diagnosis made by a private provider as evidence of a child’s needs and may require an NHS diagnostic assessment. Anecdotally, it seems that this can be the case even if the assessment was referred through the NHS ‘right to choose’ pathway and was carried out by an approved NHS partner.

So while there is a route to swifter and less stressful diagnosis for children, it may not always offer the comprehensive solutions families are looking for. A diagnosis can, however, whether it opens the door to increased support or not, mean a great deal to a family who will at least be given some answers and a framework within which they can better understand their child. 

About the Author

Jane Wilson is a Director and Child Care Solicitor at Duncan Lewis Solicitors, based in the Newcastle office. She specialises in a broad variety of children, family and domestic abuse matters, frequently representing children who are subject of proceedings (through their Cafcass Guardians) and parents whose children are subject to proceedings or the pre-proceedings process involving the local authority.

For advice or assistance, email Jane Wilson at JaneW@duncanlewis.solicitors.com, or by telephone at 02031141194.

Our Child Care team in Newcastle approach each case with a level of understanding only achievable through specialising in child care law. The team advise and represent parents, other family members, children and children’s guardians in all Public Law proceedings. These include proceedings where the Local Authority have applied for Emergency Protection Orders, Care Orders or where parents apply for contact with children in care and discharge of Care Orders. They can also advise and assist where children are voluntarily accommodated and can attend Child Protection Conferences.

Our specialist Autism and ADHD team has a unique and in-depth understanding of the challenges that parents and children with hidden disabilities and/or special needs (whether diagnosed or undiagnosed) face when involved with social services and family court proceedings. This enables our team to provide insightful, empathetic and emotionally intelligent representation. 

The team includes members of the Law Society’s Children Law Accreditation Scheme who represent children (though their Cafcass Guardians), parents/carers and extended family members.

Duncan Lewis Solicitors

Duncan Lewis Solicitors is a multi-award-winning national law firm renowned for exceptional legal services and commitment to justice. With expertise in 25 areas of law, the firm is ranked in Chambers & Partners and Legal 500 as a top-tier law firm and has been named a Times Top 250 Law Firm. Headquartered in London, the firm is recognised for its excellence in people management, holding the Investors in People Gold Standard Accreditation, and embraces a paperless, hybrid-working model. The firm was crowned law firm of the year at the LexisNexis awards 2024 and again at the Modern Law awards the year before.