Around a dozen families whose children received apologies for deficiencies in their care by Child and Adolescent Mental Health Services (CAMHS) in Kerry are being excluded from a State compensation scheme, leading them to take High Court actions instead.
In the case of at least one family, a child whose care was accepted as deficient has been deemed to be ineligible for the compensation scheme, while a number of his siblings have been accepted into the same scheme and have received compensation.
Following separate reviews into care offered by CAMHS in Kerry, the State established a compensation scheme for those affected, first in South Kerry and later in North Kerry, once the reviews were completed there.
Parents and children whose care was found to have been deficient were called to meetings by the HSE, where they received formal apologies.
Millions of euro have been paid out to them in compensation for the deficiencies in care identified by the two reviews.
Dozens of children were found to have suffered significant harm through misdiagnoses and the inappropriate prescription of anti-psychotic medicines.
Most of the families involved have been included in the compensation scheme, but around a dozen have not. None of the families who have been told they are ineligible for the scheme have been offered an explanation for their exclusion.
However, RTÉ News understands that inclusion in the scheme is confined to children whose files were specifically reviewed by the Maskey inquiry into South Kerry CAMHS, and the Halpin inquiry into North Kerry CAMHS.
Other families, who raised concerns about their children's care individually or through a solicitor and who have received apologies from the HSE for deficiencies in their care, have been told they are ineligible for the compensation scheme.
A solicitor acting for the families of several of these children said he has been forced to initiate High Court proceedings on their behalf instead.
Keith Rolls, who represents dozens of families who are covered by the compensation scheme, has described the situation in relation to children who are being excluded as "unfathomable".
"As of now, they have been prevented from joining the compensation scheme, even though they have received an apology," Mr Rolls told RTÉ News.
"They should have the same protection that the State is offering through the non-adversarial compensation scheme.
"People need the protections that the scheme is designed to give. It's unfathomable that some are being offered the benefits of the compensation scheme while others, who suffered the same harm, are being denied it."
In a statement, Minister fo State with responsability for Mental Health Mary Butler said her Department is working to ensure all impacted young people are eligible for inclusion in the compensation scheme.
She said: "There were a small number of cases, who attended North Kerry CAMHS, that were previously independently reviewed and received Open Disclosure letters acknowledging potential for harm. These reviews took place on an ad hoc basis, outside of a formal review process.
"I have made sure that these files have now been included and prioritised in the extension of the North Kerry Lookback Review, allowing them to apply to the compensation scheme as they receive letters from the Review."
Ms Butler said she is "concious" some of the young people and their families "have been waiting for a long time".
"HSE South West have assured me the process to enable this cohort of patients to apply to the scheme is well advanced, and I am closely monitoring progress to make sure this happens as soon as possible," she added.
The Department of Health said "significant work" has been undertaken on "the development of the extended compensation scheme and the further file review since the publication of the Lookback Report".
It said affected young people will receive a letter inviting them to apply to the Compensation Scheme, with an accompanying 'frequently asked questions' booklet, and helpline details.
"Letters from HSE South West are expected to issue to the first group of patients in the extension of the North Kerry Lookback Review in the coming weeks," it said.
No young person excluded from scheme - Taoiseach
Taoiseach Micheál Martin has told the Dáil that "no young person has been excluded from the (CAMHS) scheme".
He was responding to Sinn Féin TD Pa Daly, who said that families which are being excluded from a State compensation scheme, having received apologies for deficiencies in the care of their child by CAMHS in Kerry are taking legal action.
Mr Daly said that, "where there is an apology, everybody should be included into the scheme" and "the time limits should be abolished" on inclusion.
Mr Martin warned that legal action would only "drive up costs".
"A small number of cases are not excluded," he said.
"They are being progressed through the further file review, and these would have been patients who had previously received open disclosure letters through previous ad-hoc independent reviews.
"It has always been the intention that they would be included in the compensation scheme, and they have been prioritised in the current review process, so they can be among the first invited to apply when formal notifications issued."
