Mr Justice Macdonald has handed down judgment in a difficult matter involving a dispute between a local authority and the NHS as to whether a young person should be provided with a placement funded by the local authority or an inpatient bed. This case reinforces the judicial comments in earlier examples of the familiar lack of suitable placements for children and young people.
The facts
The matter concerned HT, a 17-year-old who was subject to a deprivation of liberty safeguards order following the application in question by Blackpool Borough Council, in addition to an interim care order.
The detailed background is set out in Mr Justice Macdonald’s judgment. In summary, HT’s behaviour deteriorated in 2019 following a move. HT went on to accrue a criminal record and was detained for assessment under section 2 Mental Health Act 1983 (MHA). HT was then admitted to an adult Psychiatric Intensive Care Unit (PICU) bed due to no Tier 4 CAMHS PICU beds being available. She was ultimately discharged in June 2021 and placed by the local authority in an unregistered placement. A search for a registered placement was undertaken across the entire country, but no suitable, available placements could be found.
In March 2022, after HT voiced suicidal thoughts, two medical practitioners and an approved mental health professional applied for HT’s detention under section 2 MHA. However, the Access Assessment completed by the unit responsible for the Tier 4 CAMHS provision indicated that admission was not merited, noting that supporting HT in the community with input from mental health services and medication would be a less restrictive option.
The question for the court was whether the order authorising the restrictions amounting to a deprivation of HT’s liberty should be extended.
The outcome
Mr Justice Macdonald authorised (for a further short period) the restrictions that amounted to a deprivation of HT’s liberty.
In reaching his decision, Mr Justice Macdonald discussed the duty placed on local authorities under the Children Act 1989 to safeguard and promote the welfare of any looked after child, including a duty to provide sufficient accommodation. He considered the relevant provisions in the MHA and the NHS Service Specification for Tier 4 CAMHS.
He concluded that the completion of an application for admission under section 2 MHA does not impose a legal obligation on the hospital to admit the patient. He noted that, pursuant to the NHS Service Specification for Tier 4 CAMHS services, the acceptance of the child or young person to a Tier 4 bed must be by way of an Access Assessment. A psychiatrist at the Trust involved described this as a ‘gatekeeping process’ to determine the type of bed required for the admission and whether admission is warranted at all, to help prevent inappropriate or unsafe admissions.
Mr Justice MacDonald noted the court’s role is limited where an Access Assessment has concluded admission under the MHA is not appropriate. The court will not generally entertain a claim for judicial review in such circumstances. It may invite the NHS Trust to reconsider its decision or consider directing a single joint expert to provide a second opinion.
However, in this matter, the judge was satisfied that there were no grounds to ask the Trust to revisit its Access Assessment.
Comment
This case is one of many in which a child or young person does not meet the criteria for detention under the MHA but, at the same time, the necessary therapeutic input required by the child or young person is not available. You can read our earlier blog posts on similar issues here and here.
Mr Justice Macdonald’s judgment will be of interest to health and care organisations working with children or young people who are deprived of their liberty. He concluded by reiterating the need for agencies to work cooperatively to ensure the child at the centre of a case like HT’s receives the appropriate provision.
If your organisation requires advice on multi-agency cooperation in cases involving a deprivation of liberty or the assessment and treatment of children and young people under the MHA, please do not hesitate to get in touch with our team of experts.
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