Judge refuses to authorise a deprivation of liberty in a case described as ‘shocking’

In a new decision, a High Court judge has made a series of very powerful observations about the conduct of Manchester City Council and an NHS Trust regarding the placement of a young teenager with autistic spectrum disorder and learning disability. The judge refused to authorise a deprivation of liberty, describing the teenager’s situation as “a brutal and abusive one”.

It is highlighted at the very start of the judgment that the High Court is regularly faced with applications under the inherent jurisdiction for declarations authorising the deprivation of liberty of children and young people in circumstances where there is an acute shortage of suitable residential therapeutic placements to meet their needs. Many of those have involved the placement of those children in hospitals for want of any other suitable placement. It is within this context that judges have been asked to consider the extent to which a deprivation of liberty in such sub-optimal placements can be said to be in a child’s best interests. You can read our earlier posts on this issue here and here

It is within this context that Mr Justice MacDonald was asked to consider the case of a 14-year-old child, ST, who is known to Manchester City Council as she has an allocated social worker and a diagnosis of autistic spectrum disorder, learning disability and challenging behaviours, which include physical violence and damaging property and is “on any estimation, an acutely vulnerable child with highly complex needs”.

ST’s family found it increasingly difficult to manage her challenging behaviour which was significantly impacting her mother’s mental health and had led to her siblings locking themselves in their bedrooms for safety. ST’s escalating behaviours had also caused her school placement to be terminated which provided for 6:1 support from staff. It appears that Manchester City Council were aware of these issues.

On 15 February 2022 ST had been admitted to a general paediatric hospital ward as a place of safety. An application had ultimately been made by the NHS Trust on 17 March 2022 for a declaration under the inherent jurisdiction authorising ST’s deprivation of liberty.  Mr Justice McDonald noted, the “abject situation in this case” is signposted from the outset by the fact that the application is made not by the local authority that has allocated a social worker to ST and is “charged with safeguarding and promoting her welfare” but rather the NHS Trust responsible for the hospital ward.

It is of note that the advice of CAMHS given prior to ST’s admission was that ST should not be admitted to hospital unless there was a medical need as “there is a clear risk of harm to her and others if she is admitted and this is not an appropriate place of safety in a crisis” was not followed.

Mr Justice MacDonald refused to authorise the deprivation of liberty, stating:

“I cannot, in all good conscious, conclude that it is in ST’s best interests to authorise the deprivation of her liberty constituted by the regime that is being applied to her on the hospital ward. I cannot, in good conscience, conclude that it is in the best interest of a 14 year old child with a diagnosis of Autistic Spectrum Disorder and moderate learning disability to be subject to a regime that includes regular physical restraint by multiple adults, the identity of whom changes from day to day under a rolling commercial contract. I cannot, in all good conscience, conclude that it is in ST’s best interests for the distress and fear consequent upon her current regime to be played out in view of members of the public, doctors, nurses and others. I cannot, in good conscience, conclude that it is in ST’s best interests to be subject to a regime whose only benefit is to provide her with a place to be, beyond which none of her considerable and complex needs are being met to any extent and which is, moreover, positively harmful to her.”

While the placement options offered by the local authority were not immediately available, the judge was satisfied that the current circumstances were “so antithetic to ST’s best interests that it would be manifestly wrong to grant the relief sought” and authorise the deprivation of liberty on the paediatric ward.

The judge agreed to grant the local authority an interim care order in respect of ST. As a looked after child, the local authority must find her an alternative placement pursuant to its statutory duty to provide accommodation for her and to safeguard and promote her welfare under Part III of the Children Act 1989. It was the judge’s expectation that the local authority would do “far better by ST than it appears to have done to date”.  

Equally, Mr Justice MacDonald found that the Trust had been guilty of unacceptable delay in seeking an authorisation for the deprivation of ST’s liberty. Both the local authority and the Trust were asked to provide “a detailed explanation for these omissions” and why the advice of CAMHS was not followed. The judge directed statements of evidence from the director of Legal Services for Manchester City Council and from a senior member of staff at the NHS Trust. The judge anticipated that those omissions would lead a claim for damages under the Human Rights Act 1998 on behalf of ST.

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