Nottinghamshire County Council v LH, PT and LT; Nottinghamshire v LH, PT and LT (No. 2)
Summary
In these two judgments, decided five days apart, Poole J considered the authorisation of the deprivation of a deprivation of liberty of a 12-year-old girl, LT, in an acute psychiatric unit. LT did not have a psychiatric condition requiring hospitalisation, and her admission was unplanned and unsupported "by any clinical evidence that it was either necessary or appropriate from a treatment perspective" (paragraph 1). LT had diagnoses of Autistic Spectrum Disorder and Attention Deficit Hyperactivity Disorder; she was also described as 'extremely anxious' and suffering from panic attacks. She was also considered likely to have 'attachment issues' and to be showing symptoms of trauma.
LT's history leading to her admission was tragic. Her mother had historically made reports of struggling to care for care for LT and her sister, and had been struggling with her own mental health. LT's mother had reported to the local authority that she was feeling suicidal due to LT's behaviour and violence towards family members. As Poole J observed:
- ...From June 2021 problems within the home, and the challenging nature of LT's behaviour, escalated alarmingly. There were numerous reports of LT being violent in the home, absconding, running out in front of traffic, and requiring restraint by police officers due to her aggression. On 15 August 2021, despite two support workers being present in the family home to assist, LT managed to jump from her upstairs bedroom window. LT's mother made repeated requests for LT to be accommodated by the local authority as she was unable to cope with her at home.
- On 7 September 2021, the mother's partner, H, reportedly strangled LT. K told police that she saw LT's eyes roll backwards and she was frothing at the mouth. He was subsequently arrested and is on police bail with a condition excluding him from the family home. He has a history of alcohol abuse and is currently in a psychiatric unit as a voluntary patient having expressed suicidal thoughts.
In hospital, LT was being staffed by three support workers provided by the local authority and was surrounded by adolescents with acute psychiatric conditions. LT's presence was said to be distressing to the other patients on the ward and to be 'triggering' them, and the unit had to operate at less than full capacity due to the resources being diverted to LT's care (resulting in psychiatric inpatient care being unavailable to adolescents who needed and would benefit from such care). Since her admission approximately eight days prior to the first judgment, LT had attempted to ligature at least ten times, with restraint then being used to remove these. LT had been aggressive towards staff, and drugs were being used to sedate her. It was considered that being on the ward was '"having a detrimental effect on LT's mental health and she is rapidly learning maladaptive coping mechanisms"(paragraph 1). It was considered that LT's condition would not improve on the ward, and "result in a long term negative impact on her behaviour. There is a high risk of her becoming not only institutionalised but also becoming one of many sad revolving door cases" (paragraph 1).
The local authority had applied for authorisation of LT's deprivation of liberty on the ward because it had no alternative option for her residence, alongside an application for an interim care order, which was granted. The court had initially authorised LT's deprivation of liberty from 17 to 23 September and the local authority's application had been supported by both LT's mother and her guardian. LT herself was distressed, and wish to go home. The court accepted the position of the local authority that the risk to her of doing so was grave, as she was both beyond parental control and it appeared her mother was not able to protect her.
By 23 September, there was again no prospect of a community option becoming available in the short-term. Her treating clinicians considered that she needed a safe, therapeutic placement, but had no need for hospital treatment.
The court considered that the case had 'striking similarities' to Wigan MBC v Y [2021] EWHC 1982 (Fam), in which the court had declined to authorise a child's deprivation of liberty in hospital. It was agreed by all parties that, as a matter of fact, LT was deprived of her liberty, there was no consent to it and it was imputable to the state. Poole considered that LT's being on the psychiatric unit had been "wholly unsuitable from the first day LT was accommodated there, and the urgent need to move her from the unit has been evident now for over a week" (paragraph 12)
While Poole J accepted that the High Court does exercise the inherent jurisdiction to authorise the deprivation of a child's liberty in unregistered placements, which the courts are ill-suited to monitoring, on the grounds that there is no other available solution, he declined so in this case:
- […] the proposed continued accommodation of LT in a psychiatric unit cannot possibly be described as a means of properly safeguarding her. Depriving her liberty in that setting would not provide her with a safety net - it would not keep her safe or protect her. To the contrary every hour she is deprived of her liberty on this unit is harmful to her. Her accommodation on the unit has exposed her to new risks of harm and will continue to do so. I cannot find that it would be in LT's best interests to be deprived of her liberty on the psychiatric unit.
- If the inherent jurisdiction is a means of meeting the need as a matter of public policy for children to be properly safeguarded then, in my judgment, it is also appropriate to take into account the adverse impact of continued authorisation on the other vulnerable children and young people on the unit.
The court published a second judgment in relation to LT five days later. Despite the lack of an authorisation of her deprivation of liberty, LT had remained on the unit, and her presentation had deteriorated. "Her continued presence is causing escalations in the behaviour of the patients on the unit. She is now being taunted by other patients who are dissatisfied with the amount of support that LT is receiving and the disruption her presence on the unit is causing. LT required restraining on 23 September 2021. This has caused LT to become agitated. She threw a drink-filled cup towards a patient. She has again tried to self-ligature" (paragraph 3). Her treating clinicians considered that her repeated attempts to self-ligature were a new behaviour caused by her being on the unit, a place described as noisy and over-crowded, where she lived with peers who were hostile to her.
The local authority had considered applying for a Secure Accommodation order, but had located no placement willing to house her, and following inquiries, it appeared unlikely one would become available. It intended instead to place LT as the sole resident of a currently vacant children's home which could accommodate up to four children. Poole J recorded that "[t]he staff on site are unqualified and have no experience of managing children who self-harm but the local authority plans to rely on agency nurses, using the same agency as currently provides nurses to work alongside the NHS staff to care for LT on the psychiatric unit" (paragraph 4) The agency nurses had training in restraint, and other staff were also to be given training. "In effect, the local authority is creating a bespoke placement for LT as a bridging provision before a more settled solution can be found" (paragraph 5).
LT was to be subject to significant restrictions, including 3:1 staffing, locked doors and windows, and removal of any items which might cause her harm. It was considered by both the local authority and hospital staff that LT remained at risk in the family home, and appropriate measures for her safety could not be put in place there.
Poole J authorised the deprivation of liberty in this placement under the inherent jurisdiction, but was adamant that the inherent jurisdiction "cannot be treated as a rubber stamp to authorise the deprivation of a child's liberty whenever the court is told that there is no other option available" (paragraph 11). He continued to decline to authorise her placement in the psychiatric unit, despite the community placement being unavailable for a short period of time.
As had others before it, the court directed that a copy of the judgment be distributed widely to those with a role in commissioning services for children.
Comment
These judgments are more examples of the increasingly common cases relating to applications for the use of the inherent jurisdiction to authorise deprivations of liberty for children, in circumstances in which the arrangements are accepted by all parties to be inappropriate. There have been cases since the judgment in Wigan (W (Young Person: Unavailability of Suitable Placement) [2021] EWHC 2345 (Fam)) in which courts have authorised short-term detentions in hospital as being in a child's best interests while searches for placements were found. However, we would note that, like the child in Wigan, LT was notably quite young, receiving no therapeutic benefit and extraordinarily distressed by her detention in hospital.
We would note that while the proposed placement in this case was a registered children's home, it was effectively replacing its entire management and staffing to care for LT since its last Ofsted inspection. In our experience, the difficulties in placing children can be exacerbated due to concerns of potential providers of bespoke placements that they may be subject to prosecution by Ofsted, a concern which was a particular feature in Birmingham City Council v R, S & T [2021] EWHC 2556 (Fam). There, Lieven J noted that the child, T, who was 16, had been placed in what appeared to be a supported living accommodation, which had been able to provide her with reasonably consistent and positive care, and led to her reengagement in education. The placement had initially stated it would seek to apply for registration as a children's home, but had not done so for approximately the first year of T's residence, and ultimately decided against doing so. Ofsted had threatened to prosecute the placement if T were to remain there. The local authority had been unable to find any alternative option for T's care which was Ofsted registered, and it was considered that any move was likely to be highly detrimental to T. Lieven J continued to authorise T's deprivation of liberty and noted:
- 27 […] a concern about Ofsted's position. I would not be making an order to authorise the deprivation of T's liberty at the placement for 4 weeks if I understood Ofsted's concerns to be around the quality of the care provided and T's safety. However I have very limited information about Ofsted's position and think therefore it is of the greatest importance that Ofsted let the court and BCC know their position as to any prosecution and why it was threatening prosecution against NFL. I hope if Ofsted's concerns were not about the quality of care but were rather about the principle of registration then this judgment will assist in explaining to them why I have continued to authorise the DOL.
