A High Court judge has declined to find that it was in the best interests of a 12-year-old girl (LT), who does not have a psychiatric condition requiring hospitalisation, to be deprived of her liberty on an acute psychiatric admission unit.
In his ruling Mr Justice Poole said the “unattractiveness” of the application was compounded by evidence from a consultant psychiatrist on the unit (Dr N). This evidence – supplemented by information provided by the NHS trust’s advocate – revealed amongst other things that:
- LT was the youngest person to have been admitted to the ward in the five years that Dr N had been working there.
- LT’s hospital admission was unplanned and not supported by any clinical evidence that it was either necessary or appropriate from a treatment perspective.
- LT has had at least ten incidences of ligature since admission requiring some level of restraint to remove. These were new risks not evident in her case history before admission to the unit. In Dr N’s opinion they could all be directly attributed to the admission.
- LT was having an adverse effect on the ward environment and affecting other vulnerable young persons’ wellbeing and support.
- Two beds on the unit – which Dr N described as a “national resource” – had had to be closed off because resources were being diverted to caring for LT.
- There were signs that the ward environment was having a detrimental effect on LT’s mental health and she was rapidly learning maladaptive coping mechanisms.
- It was not expected that LT would settle and improve whilst on the unit.
- Dr N’s view was that it was “harmful to her wellbeing” for LT to remain on the unit. He says that he was “very concerned that prolonged admission in an acute mental health setting will have a detrimental effect on LT and every hour she spends on the unit is harmful to her.”
Mr Justice Poole said the sole reason why the local authority had invited the court to find that it was in LT’s best interests to be deprived of her liberty whilst accommodated in the acute psychiatric admissions unit was that “there is nowhere else for her to go – nowhere in the whole of the country - such is the national shortage of accommodation suitable for vulnerable children such as LT”.
He added that the local authority was not able to provide any information to the court to give cause to believe that accommodation would be identified as available for her were he to adjourn the case for another few days.
The background to the case as set out by the judge was that the local authority had first been alerted to concerns about LT and her sister in 2018. The parents had separated and the mother was struggling with her own mental health and sought support. In January 2020 LT witnessed a domestic abuse incident between the mother and her partner.
In November 2020 the mother contacted the emergency duty team at the council advising that she could not manage LT anymore, blaming LT’s behaviour for the breakdown of her marriage. A few days later she reported that she was suicidal due to LT’s violence in the home towards other family members.
The judge said that 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.”
In September 2021, the mother’s partner, H, reportedly strangled LT. The partner is now on police bail with a condition excluding him from the family home. He is currently in a psychiatric unit as a voluntary patient.
Later that month LT reportedly assaulted her sister. LT absconded from the family home, jumped in front of traffic, and attacked police officers. It took six police officers to restrain LT over a period of two hours.
She was first taken to an adult hospital where it was considered, on assessment, that LT was not suitable for detention under the Mental Health Act 1983. LT was subsequently admitted to the unit for acute adolescent psychiatric admissions at B hospital, where she remains.
The judge said LT had been diagnosed with Autistic Spectrum Disorder and Attention Deficit Hyperactivity Disorder. “Alongside this she is extremely anxious and has frequent panic attacks.”
Dr N advised that she was still not suffering from a mental illness of a nature or degree which made it appropriate for her to receive treatment within a hospital setting. She does not have a psychiatric condition. She needs a therapeutic placement, Mr Justice Poole said.
Over the course of hearing on 17, 20 and 23 September the judge was told that searches had failed to identify an alternative placement to which LT could be moved.
A social worker expressed concern about the effect on LT of any sudden move. However, Mr Justice Poole said the fact remained “that the psychiatric unit was always 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.”
LT wanted to return home but she was subject to an interim care order because there were reasonable grounds to believe that she would be at risk of suffering significant harm at home because her mother had been unable to care for and protect her and LT had been beyond parental control, the judge said.
“That is the case even though her mother’s boyfriend is not presently living at the family home, in particular because concerns have been expressed, including in the Guardian’s position statement to the court today, that the mother does not understand that it would be a risk to her children for her boyfriend to return home."
He added: "To say that the threshold for an ICO is met rather understates the risk to LT were she to return home, even with support workers to assist her mother, as the history of events shows. The Guardian is very clearly of the view that it would not be safe for LT to return home at present.”
The judge noted that the court was not being asked to direct where LT should be accommodated, but to authorise and thereby render lawful, the deprivation of her liberty at the psychiatric unit.
Mr Justice Poole said: “In many cases 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.
“In the present case, however, 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.”
The judge added that if the inherent jurisdiction was a means of meeting the need “as a matter of public policy” for children to be properly safeguarded then, in his judgment, it was also appropriate to take into account the adverse impact of continued authorisation on the other vulnerable children and young people on the unit. [Judge’s emphasis]
The existing authorisation continued until 4pm of the day of hearing. Mr Justice Poole noted that no plan had been made in the event that he did not extend that authorisation even though he asked the local authority to address that eventuality at the last hearing.
“Despite the uncertainty and discomfort that my decision will cause, I am not prepared to authorise the continued deprivation of LT’s liberty on the psychiatric unit beyond the time previously authorised. Any further applications should be reserved to me,” he said.
“Naturally, the court is acutely concerned for LT and what will happen to her now. It is deeply uncomfortable to refuse authorisation and to contemplate future uncertainties.”
The judge noted, however, that LT was a looked after child and the local authority must find her an alternative placement – it had a statutory duty to provide accommodation for her and to safeguard and promote her welfare whilst in its care, under Part III of the Children Act 1989. “The state has obligations under Arts 2, 3 and 8 of the European Convention on Human Rights.”
Mr Justice Poole said he did not doubt that the local authority had striven to find alternative accommodation but that the national shortage of resources had led to the current position.
“Nevertheless, authorisation of the deprivation of LT’s liberty in a psychiatric unit which is harmful to her and contrary to her best interests would only serve to protect the local authority from acting unlawfully, it would not protect this highly vulnerable child.”
The judge went on to acknowledge the “admirable” work of the police, social workers, doctors, nurses and other professionals who had engaged with LT.
He directed that a copy of this judgment be provided to the Children’s Commissioner for England; to the Secretary of State for Education; to the Minister for Children; to the Chief Social Worker; and to Ofsted.