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NHS Trust v ST (refusal of Deprivation of Liberty Order) [2022] EWHC 719 (Fam)

A “shocking” case in which MacDonald J refused to authorise a deprivation of liberty of a child, describing her current situation as “brutal and abusive” and considering that she had been comprehensively failed by Manchester City Council and the NHS Trust.

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This matter concerned a vulnerable 14-year old with highly complex needs which included Autistic Spectrum Disorder and a learning disability. MacDonald J described the case as "shocking".

The NHS Trust responsible for the hospital ward where ST was placed brought an application for a declaration under the inherent jurisdiction to authorise deprivation of ST's liberty. This was despite ST having an allocated social worker from Manchester City Council. At the hearing, the local authority presented alternative placement options but none of these were immediately available and were subject to weeks of assessment.

ST had been presented at hospital on 15 February 2022 by her tearful father who refused to return her to the family home. ST's parents had found it increasingly difficult to manage her challenging behaviours and had resorted to locking her in the dining room. ST's escalating dysregulation had also resulted in her siblings locking themselves in their rooms, impacted the mother's mental health and caused a termination of ST's school placement (where there was 6:1 staff support under an Education and Health Care Plan).  Manchester City Council had been aware of these issues but it was unclear what support, if any, they had provided.

ST's treating Child and Adolescent Psychiatrist had previously advised against admission to hospital (without a medical need) due to the risks of harm to ST and others in the hospital environment. Given the circumstances on 15 February, the NHS Trust stated they had had no choice but to admit her to a general paediatric ward solely as a place of safety. The court noted that the local authority was unable to offer any explanation as to why it had failed to make an application for an interim care order at this point of obvious crisis.

Following ST's admission, the local authority employed a private company to provide two security guards and two carers to supervise ST on a 4:1 basis. Due to the rolling contract, there was a high turn-over of staff, adversely affecting ST. Despite this continuous supervision and control no deprivation of liberty authorisation had been sought from the court for over a month, meaning that the measures taken had likely been unlawful. Interventions included ST being subject to multiple physical restraint holds including on one occasion by five people, inappropriate restraint of her head, being tranquilised/subject to chemical restraint on numerous occasions and being required to walk around the ward in a restraint. On one occasion ST managed to break into a treatment room in which a dying infant was receiving palliative care and had to be restrained in that room by three security guards.

The court declined to make the declaration, MacDonald J stating that he could not in good conscience conclude that the regime was in ST's best interests. He commented on multiple adults restraining ST, their identity changing from day to day under the rolling commercial contract,  as well as ST's fear and distress and it being played out in view of members of the public. The placement (a paediatric ward) was unsuited to the task of meeting ST's needs and the court described the current situation as "brutal and abusive" for ST.

Although the placement options were not immediately available, the court 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. It could not be said that the placement on the paediatric ward is keeping ST safe. It was 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.

The court made an interim care order, the local authority having now accepted it would issue care proceedings. As a looked after child, there was a clear statutory duty on the local authority to provide accommodation for ST to meet her complex needs and safeguard and promote her welfare. There were also wider ECHR obligations on the local authority under articles 2,3 and 8.

The court declined the request to anonymise the identity of Manchester City Council from the judgment. Neither the local authority nor the NHS Trust had brought the application to seek authorisation for the breach of ST's Art 5 rights in a timely manner. ST had been comprehensively failed. The court anticipated the omissions would be examined further in the context of a claim for damages under the Human Rights Act 1998.

Case summary by Hannah Gomersall , Barrister, Coram Chambers

For full case, please see BAILII