Judge rejects application by local authority for declaration in dispute between council and health board over responsibility for care of 15 year old

A High Court judge has rejected a local authority’s application for a declaration from the court that because a vulnerable young person was detainable under the provisions of the Mental Health Act 1983, the court did not have jurisdiction to grant a Deprivation of Liberty (DoL) order pursuant to the inherent jurisdiction.

In SB, Re [2024] EWHC 2964 (Fam) (19 November 2024), Mr Justice Keehan said: “In practical terms, the thrust of the local authority's case was that it was the responsibility of the health board, pursuant to the provisions of the 1983 Act, to make provision for the care and treatment of SB, and not the responsibility of the local authority even with the benefit of a DoL, if authorised by the court.”

The health board strongly opposed the position of the local authority, the judge said.

“It asserted that this court had no jurisdiction to determine whether SB detainable in a hospital pursuant to the 1983 Act; it had no jurisdiction to exercise a reviewing or supervisory role of the decisions made by clinicians and professionals under the 1983 Act; and that for the court to make a declaration or findings as to whether SB was detainable under the 1983 Act put pressure on the health board to change its position, or otherwise, was an abuse of process.”

The case concerned SB, aged 15 years old, who had been diagnosed with autism and learning difficulties.

In July the local authority made an application for the deprivation of SB's liberty to be authorised pursuant to the inherent jurisdiction of the High Court. The first deprivation of liberty order was made that month and subsequently extended.

The judge noted: “Since April 2024, SB has been exhibiting increasingly challenging and extreme behaviour which has placed herself and others at very real risk of very serious harm and, potentially, leading to her death or the death of others. She has been the subject of repeated referrals to the local authority, local psychiatric services, and the police.”

At the time of the hearing, SB was placed in a General Adolescent Unit subject to a DoL. The health board was responsible for caring for SB during her admission to the unit.

At the time of the hearing, SB had been the subject of assessments as to whether she met the statutory criteria for detention for treatment pursuant to s.3 of the 1983 Act on six occasions over four months by eight consultant psychiatrists.

All of them concluded that she was not detainable and nor would it be in her interests to be detained in a hospital.

The judge said: “It is of note that five of the eight consultant psychiatrists who undertook assessments of SB were not and are not employed by the health board.”

In August 2024, the court gave permission for the local authority to instruct on a joint basis, within the care proceedings, an independent consultant psychiatrist to assess SB and to prepare a report. The health board were not a party to this instruction.

That psychiatrist's conclusions were:

"SB shows behaviours that lend themselves to a diagnosis of Delusional Disorder in addition to her diagnosis of Autism Spectrum Disorder. In combination with her cognitive ability, her lethality to her potential victims increases.

“Having considered all possible options (criminal justice system, child welfare system, Mental Health Act) and their longer term implications, it is my view that an outcome under the Mental Health Act will afford a marginally improved prognosis which is otherwise bleak.

“The bleak prognosis arises from the risks of harm associated with a lifespan condition (ASD) alongside a mental disorder (delusional disorder)."

Contrary to the opinions of the consultant psychiatrists, the instructed psychiatrist was of the view that SB did satisfy the criteria of s.3 of the 1983 Act for detention for treatment in a hospital.

Outlining the submissions of the parties, Mr Justice Keehan said the local authority sought determination of one issue: whether the inherent jurisdiction was available and could be appropriately deployed to authorise the ongoing detention of SB in a mental health hospital when another statutory scheme, namely the 1983 Act, applied to SB.

It was the local authority's principal submission that SB 'falls within the scope of' s.3 of the 1983 Act and, therefore, the inherent jurisdiction cannot be deployed as an alternative to that detention as it would 'cut across' the statutory scheme.

The health board submitted that the position adopted by the council was wrong in law and invited the court to refuse the local authority's application for a declaration that SB was within the scope of s.3 of the 1983 Act and that she could not be made the subject of a DoL under the inherent jurisdiction.

Counsel for the health board set out the statutory framework under the 1983 Act and accompanying guidance to illustrate the “complex process” by which a child or young person could be detained in hospital for treatment pursuant to s.3 of the 1983 Act.

Mr Justice Keehan said: “Ms Sutton KC [for the health board] made the general point that the opinion of a medical practitioner that a child or young person satisfied the criteria of s.3(2) of the 1983 Act was a starting point, and not the conclusion, of a process which could lead to their compulsory detention in a hospital under the provisions of the Act. She made the specific submission that the opinion of [the independent psychiatrist that was instructed], that SB was detainable under s.3 of the Act, was at variance with the opinions of eight other consultant psychiatrists including SB's treating psychiatrist.”

The two key submissions of the health board were as follows:

i) The court did not have the jurisdiction to exercise a supervisory or review function of the decisions made by clinicians under the provisions of the 1983 Act; and

ii) For the court to seek to use its powers and procedures to influence the decisions of the clinicians and those involved in the assessment and commissioning processes under the 1983 Act was an abuse of process.

Analysing the case, Mr Justice Keehan said: “The leading authorities are abundantly clear that this court has no role to supervise or review decisions which have been entrusted by Parliament to another public authority.”

He observed that the 1983 Act is an “obvious example” where Parliament has provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital.

The judge continued: “There is no authority for the proposition that a court contemplating the exercise of the inherent jurisdiction to deprive a person of their liberty had jurisdiction to encroach upon the issue of whether a person was detainable or could, or would, be detained in a hospital under s.3 of the 1983 Act.

“In the absence of clear authority, I am satisfied that for this court to make findings and/or declarations about whether SB was detainable under s.3 of the 1983 Act would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act. This court has no jurisdiction to make such findings or orders.”

Finally, he added: “If the court did make such a finding, and then went on to make the declaration initially sought by the local authority that the court could not then exercise the inherent jurisdiction to authorise the deprivation of liberty, SB could find herself in a position where she was not afforded protection by being detained for treatment in a hospital nor afforded the protection of being deprived of her liberty in a safe place. This would be an intolerable and unconscionable state of affairs.”

Mr Justice Keehan said an issue was raised at the conclusion of the hearing by the local authority as to whether the court should give judgment on the contested issues in light of the local authority's concession not to pursue its application.

“I recognise the force of this submission, but I am satisfied that in light of the important matters raised in this case it is clearly in the public interest for the court to set out its analysis of and conclusions about the application made by the local authority,” he said.

The judge continued: “As I have set out above, the behaviours exhibited by SB.....were extremely challenging and they placed herself and others at a real risk of very serious harm. As noted in recent weeks, her behaviour has been very markedly less challenging and she has been compliant with her prescribed medication, but these are early days.”

He said: “SB will require a safe, secure and supportive placement outside of a secure hospital. She will need to remain compliant, for the foreseeable, with taking her prescribed medication. […] The local authority is seeking to identify a suitable, secure residential placement for her. It is clear that SB will require a very good deal of support and therapy to enable her to return safely to live in the community and to lead a happy and stable life.

“The local authority did not pursue its applications for findings and/or a declaration. However, for the reasons I have given, the applications are refused. For the avoidance of any doubt, I do not intend any criticism of the local authority in making their applications.”

The judge added: “By reason of the above, the court will continue to authorise SB's deprivation of liberty at [the unit] pursuant to its inherent jurisdiction. Such an order is both necessary and proportionate having regard to the aim that is sought to be achieved, namely, to prevent SB, in the interim, causing harm to herself or others, pending her imminent discharge into a community placement.”

Lottie Winson