| SPOTLIGHT |
Alex Ruck Keene KC (Hon) analyses a recent High Court ruling on whether a 15-year-old should continue to be deprived of her liberty in a hospital.
Lancashire County Council v X [2023] EWHC 2667 (Fam) was rightly described by the judge as extremely disturbing, involving the most intense level of restrictions imposed on a child (of 15) seen by any of the professionals involved, but no obviously lesser state of restrictions that could be envisaged to keep her safe. The case had involved an escalating series of crises and stays in acute hospitals whilst a search for appropriate accommodation in the community continued. To give a flavour of the seriousness of the situation, I set out the narrative given by the judge in the lead-up to the most recent hearing.
26. At [the earlier] hearing, in agreement with Ms Bowcock, K.C., I said that this was clearly a case for a secure accommodation order. In fact, a secure accommodation placement might well be better for Claire because the relational security might be less intense. It must be difficult for somebody who is in good mental health to have four people with them all the time, but for somebody with the terrible difficulties that Claire has it must be awful. However, what else can be done when a person is trying to harm themselves as determinedly and seriously as Claire is? The most recent example I was given at that hearing was that she smashed a door down at the placement in the West Midlands, not so she could escape but so she could get access to the screws which she could then ingest.
27. Before the hearing on 26 September there was another event where over the weekend Claire climbed on to a conservatory roof, smashed some glass and ingested it. As a result, she was taken to the A & E department at a Midlands Hospital, and as a result of that [placement provider] gave immediate notice and they have refused to allow her to return, although they have continued to provide support for her in the Hospital. She remained in hospital in a cubicle off the ward, medically fit for discharge, where “medically” once again refers to physically fit, but there must be severe doubts as to whether she is mentally fit for discharge from a hospital.
28. However, once again she was assessed for MHA admission and the assessment proved negative. She is not in need of in-patient psychiatric care at Tier 4, it is said. So, LCC once again was left holding Claire in circumstances where, and this is not a criticism of the Council, they have no idea what to do with her. The only thing they can do is to look for a placement that may be able to provide her with support and care and then, once she is there surround her with what is assessed as being a necessary level of support in the circumstances.
29. If it is the wrong sort of place, a place that is not secure enough, then that level of security is going to have to be intense. It is probably going to be 4-to-1. That is likely to make things worse because Claire will see herself as being heavily restricted, and not having a normal life. Her ability to regulate the emotions that will follow from that are well-documented and non-existent. So, we can anticipate further self-harm, further destruction, further attempts to escape and further admissions to hospital if she is lucky enough not to kill herself in the process.
30. On 26 September 2023, the application before me was a modest one. Keep the restrictions in place but just change the address from the placement in the West Midlands to the cubicle off the Accident & Emergency Department at the Midlands Hospital where there will be four people constantly with her, constantly restricting her, occasionally restraining her, and always making sure that she does not harm herself.
As HHJ Burrows noted:
31. I found myself in a position where I had to authorise that level of detention because the alternative was too horrible to contemplate. However, I wanted to know why it is that CAMHS and Tier 4 psychiatric services consistently and persistently regard Claire as not being detainable under the MHA. She has a mental disorder. It appears it is of a nature and a degree that needs treatment of some sort and in a place of security. It means that she is an enormous risk to her own health and safety but also, potentially anyway, to others. In the absence of any other suitable placement, it seems necessary for her to receive at very least assessment and probably further treatment in a psychiatric facility to address that disorder. I am only a judge, I am not a psychiatrist or an AMHP, but Claire seemed to me to be detainable.
32. I wanted the person who most recently assessed her to provide the assessment and an explanation as to why, in their view, she is not detainable. The alternative to her being in a psychiatric facility is that she is in a non-psychiatric secure facility, potentially, or worse, in a wholly inadequate facility in which people are doing their best but are doomed to fail because of her behaviour. That is an explanation I wanted by the time of the next hearing.
At that hearing, HHJ Burrows:
33. [..] heard from a very senior and specialist nurse, HZ, who provided me with a statement and attended remotely to assist the Court. I am grateful to HZ for her expertise and candour. HZ explained to me why Claire was not detainable within a Tier 4 CAMHS facility under the MHA. That conclusion was reached after a lengthy period of assessment during which Claire engaged with those assessing her. The assessors were aware of the detailed history I have summarised above. They were also aware of the CAMHS assessment carried out whilst Claire was placed in Salford. Claire’s presentation in Salford was summarised in a letter from Greater Manchester NHS Foundation Trust dated 18 August 2023. During the assessment at Salford “there was no evidence of an acute mental disorder that would likely respond to treatment in an acute mental health inpatient setting. There was no objective evidence of mood disorder, acute anxiety or psychotic features”. The self-harm Claire had inflicted “was in the context of emotional dysregulation linked to social stressors, namely……attachment difficulties and feelings of destabilisation due to multiple placement moves, and removal from family and usual social support networks”.
34. That assessment appears to focus heavily on the degree of disorder at the time of assessment and not on its nature over time. In relation to her family and usual support networks, it will also be noted that Claire’s removal from her family and those networks came about because of the crisis I have described in which her family and those networks were incapable of keeping her safe. In short, I did not find the Salford assessment very compelling. HZ and her colleagues concluded that there were no obvious signs of a diagnosable mental health condition that would warrant Tier 4 admission. Her behaviour appeared to be “due to her traumatic and adverse childhood experiences” and (emphasis added) “she would warrant longer term therapeutic work in collaboration with a contained and varying environment“.
HHJ Burrows found himself:
36. […] extremely concerned about HZ’s evidence and the position of her Trust. The apparent consensus amongst the mental health professionals who have treated Claire is that she needs treatment for her underlying disorder, but that is best achieved in a social setting which is stable, safe and secure. Until that is available the treatment will not be offered. This position appears to ignore what is almost universally recognised elsewhere, namely that there is a chronic lack of secure accommodation for our young people with serious mental health and behavioural problems. I need only refer to the recent judgment of the President, Sir Andrew McFarlane in Re X (Secure Accommodation: Lack of Provision)[2022] EWHC 129, along with his predecessor six years ago, in Re X (A Child) (No. 3)[2017] EWHC 2036 (per Sir James Munby, P) to provide support for this Court’s concerns. Furthermore, in the Court of Protection recently, Theis, J, VP, made the same point in an appeal from one of my decisions concerning the lack of appropriate accommodation for challenged young people: see Manchester University Hospitals NHS Foundation Trust v JS (Schedule 1A Mental Capacity Act 2005)[2023] EWCOP 33.
HHJ Burrows heard from the consultant within the Sandwell CAMHS crisis team, who was able to offer that DBT treatment could start immediately, which “recognises two aspects of this case that seem clear. First, that Claire needs therapeutic input to address the underlying mental health condition, whatever that may be. Although she ideally needs that in a place where she is secure and stable, the fact is that level of security and stability simply is not available at the moment. Finding an alternative placement is likely to prove difficult and may involve a protracted search period, and that is the second aspect. Certainly, if the experience of previous searches is an indicator, finding a satisfactory placement rather than one that is barely adequate will take a while. In the meantime, Claire needs the treatment and other input.”
However, pending the identification of appropriate secure accommodation, and
45. So far as the Tier 4 issue is concerned, I remain troubled that this young woman who has been dysregulated for so long and has been so determined to cause herself serious harm, is not detainable under the MHA. However, there is nothing this Court can do to require the use of the MHA. The guardian is pondering whether judicial review of the sectioning decision is a feasible option. I consider in the meantime that it is necessary for an expert to be instructed to consider Claire’s overall mental health care and the direction of that care. This appears not to be taking place in a coordinated way as it is. What I cannot do is compel anyone to detain Claire under the MHA. This was made clear, albeit under slightly different circumstances by Mr Justice McDonald in Blackpool BC v HT(etc) [2022] EWHC 1480. What His Lordship said at [51] is also highly relevant to this case:
This matter represents another example, amongst many examples, of a case in which the acute lack of appropriate resources, for children assessed as not meeting the relevant criteria for detention under ss 2 or 3 of the Mental Health Act 1983 (the 1983 Act) but requiring therapeutic care within a restrictive environment for acute behavioural and emotional issues arising from past trauma, creates tension between a local authorities and the NHS. As a result, the matter comes before the court with the local authority asserting that the NHS should be making provision for the child and the NHS arguing that the child does not meet the criteria for such provision.
46. I am troubled however, that those involved in CAMHS provision and Tier 4 decision making have to recognise this resource crisis and have to take the lack of adequate social provision into account when making decisions under the MHA. Of course, a 14- or 15-year-old child should not be detained in a secure psychiatric facility if there is a less restrictive option that can achieve appropriate care for her. Or, put another way, treatment in Hospital is not necessary if (but only if) there is suitable care available outside Hospital. If that placement is not available within a reasonable timescale, then treatment in Hospital is surely necessary. I have dealt with this elsewhere, in a similar context, in Manchester University Hospitals v JS[2023] EWCOP 12.
HHJ Burrows found himself able to authorise the continued deprivation of Claire’s liberty where she was given that she was slightly better settled, and declaring that it was in her best interests to receive such treatment.
Comment
Grimly, Claire’s situation is, as HHJ Burrows identified, not unusual, as systems essentially continue to be pushed to and beyond their limits in the face of increasing demand (especially amongst adolescents) and diminishing supply. HHJ Burrows’ concern about the approach of those charged with Tier 4 assessment has been shared by other judges, and indeed, more broadly by those who are troubled about the fact that what is in effect a commissioning process appears to drive consideration of whether a person is or not detainable under the MHA 1983, a question which is not on its face anything to do with resources.
It is striking in this case that a judicial review was being contemplated to tease out the question of why Claire was not considered detainable for purposes of the MHA 1983. However, it is also necessary to highlight that HHJ Burrows’ approach to detainability might need something of a recast in light of the decision of the Upper Tribunal in SF v Avon and Wiltshire Mental Health Partnership [2023] UKUT 205 (AAC), a decision which may suggest that a rebalancing towards greater recourse to judicial authorisation (for those under 18) and /or recourse to DoLS (for those over 18 lacking the relevant decision-making capacity) for those cases where, in effect, all that is being done is keeping the person as physically safe as possible.
Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.
