Cheshire East Council

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Discharging medically fit children from hospital during a shortage of accommodation

Gemma Brannigan explains how two NHS Trusts recently obtained a High Court Order to require a child to be removed from hospital.

We recently helped two NHS Trusts with an extremely difficult case, where the legal proceedings had to be more robust than usual.

Facts*

X was a teenager in the care of the local authority (as a ‘looked after’ child). He had been detained on a section 2 of the Mental Health Act the previous year; the lengthy assessment had concluded that there was no psychiatric disorder which was amenable to treatment.

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Whilst in a children’s home he ran away often, and endangered his own health and life. He was violent to the staff; after assaulting a staff member, he was taken into the acute NHS Hospital by police. He did not have any acute medical needs and was ‘medically fit for discharge’ on the same day. However, in a situation that will be familiar to many of you, he could not be discharged, because the local authority said that:

  1. they did not have a suitable home (placement) for him, and
  2. because they thought he should be detained again under the Mental Health Act (which the psychiatric Trust said firmly would not be appropriate).

The local authority continued to look for a placement, but the weeks ticked by. X was bored and understandably unhappy being detained in a room in the hospital. Although 1:1 carers were arranged to provide activities and distraction, he quickly began to abscond (multiple times each day), then to steal dangerous objects and to physically harm NHS staff and security. The acute NHS Trust escalated their concerns with the local authority at director level – but the response remained the same (no placement had accepted X). The NHS Trusts began to doubt that any ‘standard’ children’s home would accept X, given the level of risk he posed (of serious harm and of absconding). The local authority (LA) approach did not change.

When a staff member required emergency hospital treatment after being assaulted, and parents were concerned for the safety if their seriously unwell children in hospital, we advised the NHS Trusts that they should take robust action, to protect the safety of their staff and other patients.

Application to the High Court (Family Division)

The LA declined to apply to court. On our application, the High Court authorised the deprivation of liberty for X to be kept in hospital under extremely oppressive conditions, simply because it (like the hospital) had no other immediately available option. We applied for the LA to take our place as the Applicant, which the court agreed with (commenting that the LA should have been the Applicant from the outset).

We also applied for an Order that by 4pm at the end of that week, the LA should be required to remove the child from the hospital. The LA did not consent to this part of the Order, however the NHS Trust in law, had no duty to the child, whilst the LA did have a duty to provide accommodation (under the Care Act). As a result, the Order was made, and the LA transferred the child into the community (he left without incident).

Key learning points

  • Communication, negotiation and then escalation with the local authority is always the first and best approach.
  • Do apply to court where a deprivation of liberty authorisation is required for a child (even if the LA will not make the application).
  • If a discharge plan is not agreed within a few days, or no suitable place seems likely to be available because of the risks presented, agree a reasonable deadline for discharge, and explain clearly that you will ask the court to make the Order.
  • It does seem to be very difficult for LAs to find available accommodation for children within 6-8 weeks. However, if a children’s home, or a secure children’s home bed is not available, the LA still has a legal duty to arrange other accommodation for a child under their care. This can be in a flat, house or a hotel, with the necessary staffing arranged. In our experience, this was not discussed or offered as an option by the LA, and was only arranged once discharge was ordered by the court.

Gemma Brannigan is a partner at Clyde & Co.

* details have been changed to avoid identification.

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