In an excoriating judgment, Macdonald J has refused to grant a declaration authorising the continuing deprivation of liberty of a 14-year-old girl in a general paediatric hospital ward. In so doing, he issued a very strong warning to other local authorities and NHS Trusts faced with similar circumstances that they cannot assume such orders will be made.
ST had been known to Manchester City Council for an extended period and, as the court highlighted, had an allocated social worker. She had diagnoses of Autistic Spectrum Disorder, moderate learning disability and challenging behaviours, including physical violence and damaging property. Her needs were escalating over a period of months and her parents were finding it extremely hard to manage her behaviours. Following an attempt by the family to present her to hospital, a doctor advised that she should not be admitted unless there was a medical need as “there is clear risk of harm to her and others if she is admitted and this is not an appropriate place of safety in a crisis”.
ST’s situation deteriorated further. Despite the advice of the doctor, in the early hours of 16 February 2022, she was admitted to a general paediatric ward, such admission being solely as a place of safety and not for any physical or psychiatric need. Manchester City Council employed a private company to provide two security guards and two carers to supervise her on a 4:1 basis, with there being a high turnover of staff. She was under continuous supervision and control and prevented from leaving the ward. As the court said, there were a “litany of incidents in which ST’s welfare was fundamentally compromised by the actions forced on those purporting to care for her by the fact that her placement was manifestly inappropriate”. Those incidents included several tranquilisations and multiple extreme restraints on her movements.
A court may grant an order under its inherent jurisdiction authorising the deprivation of a child’s liberty if it is satisfied that the circumstances of the placement in question constitute a deprivation of liberty and if it considers such an order to be in the subject child’s best interests.
There was no dispute that ST had been deprived of her liberty for the purposes of Article 5 ECHR since her admission. Despite this, no application for authorisation was made by the NHS Trust or Manchester City Council until 17 March 2022.
Macdonald J, in highly critical terms, decided that the deprivation of liberty was not in ST’s best interests:
“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. My reasons for so deciding are as follows.”
He went on to explain why the steps Manchester City council and the NHS Trust had taken were not enough:
“Manchester City Council has been aware at least since 24 February 2022 that ST is in a placement that is manifestly ill equipped to meet her needs and which is depriving her of her liberty for the purposes of Art 5 of the ECHR. … it is simply not an answer to say that there have been ‘multiple meetings’. It is likewise not an answer to say that there is a shortage of suitable placements and that ‘searches have been ongoing’. The bottom line is that ST has, on the evidence currently available to the court, been deprived of her liberty without authorisation in a manifestly unsuitable placement for over a month prior to 18 March 2022, due to the apparent inaction of Manchester City Council and the NHS Trust.”
The judgment should be read in full by all who work in this field. The strength of criticism of the judgment cannot be understated. Its tone is perhaps best encapsulated in the following passage:
“As I have observed in other cases, judgments given by a court should be sober and measured. Superlatives should be avoided and it is prudent that a judge carefully police a judgment for the presence of adjectives. However, in the circumstances of this case, I am satisfied that it is not an exaggeration to say that to grant the relief sought by the Trust in this case would be to grossly pervert the application of best interests principle.”
Charles Bishop is a barrister at Landmark Chambers.