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North Yorkshire County Council v M & Others (Medium Secure Bed) [2021] EWHC 2171 (Fam)

Mr Justice MacDonald considers an impasse that has left a deeply troubled adolescent without the medium secure NHS bed she requires and deprived of her liberty in a secure unit in which her needs are not being met and her condition is bound to deteriorate.

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Applications

North Yorkshire County Council (NYCC) sought


• permission to invoke the inherent jurisdiction and make a 15-year-old girl, M, a ward of court

• an order under the inherent jurisdiction to deprive her of her liberty

• an injunction against Leeds City Council (LCC) prohibiting them from discharging her from her current placement.

Background

M has highly complex needs and significant offending history. She was placed in September 2020 at a secure children's home under a Detention Training Order (DTO) after being sentenced for criminal offences. The unit also has "welfare" beds.

In April 2021, after her presentation became increasingly complex and dangerous, she was assessed as needing a medium secure tier 4 bed in a Medium Secure Unit. Such units accommodate young people with mental and neurodevelopmental disorders who present the highest risk of harm to others. NHS England asserted in its position statement that the NHS does not have capacity to provide such a bed. In fact it was established at the hearing that there are two appropriate units which each have five empty beds but both have refused to accept M.

When the DTO ended in June, LCC agreed that M could remain at her placement for a short time in a welfare bed, funded by NYCC. An order was made authorising M being deprived of her liberty. Shortly afterwards it became clear that M needed a higher level of segregation, supervision, and support; additional funding was required from NYCC to free up two other beds and thus redirect resources to M. The NHS also provided substantial additional resources.

So far in 2021, up to 12th July, M has required 192 restraints; she self-harms at least twice a day and needs to be segregated in a locked unit. She has several staff members allocated at all times of the day and night and does not leave the unit. She has recently assaulted staff including headbutting and kicking one in the head. A psychiatric assessment concluded not only that she continues to need a medium secure tier 4 bed but that her current placement cannot put in place the medication and seclusion needed for her to engage and make therapeutic gains.

All agree that discharging M into the community would put her at risk of serious self-harm including risk to life.

The parties all agree the following way forward:


• LCC agrees to M remaining in her current placement subject to NHS England continuing to provide additional support, NYCC continuing to pay for two beds to remain vacant and it being clear that the placement will come to an end following the next hearing;

• Joinder of the NHS Mental Health Trusts responsible for the two units that have declined to offer one of their available beds to M, in order that to the court can properly investigate the reasons for their refusal;

• Statements from the directors of those Trusts explaining the obstacles to admission and how they may be overcome;

• A statement from the Director of Mental Health for NHS England confirming the support that it is willing to commission to ensure that M can be admitted to one of the free beds;

• Joinder of the Secretary of State for Health in order that discussion about provision can take place at the highest level.

The Law

The court authorised the deprivation of liberty on the basis of well-established case law, with the caveat that the Supreme Court was to deliver its judgment in Re T the following day.

At §21-25 here is a brief overview of authorities relevant to the issue of whether the current placement was so unsuitable as to breach Art 5. The court also stressed at §26 the importance of having regard to the fact that M's Art 8 rights extend "to the right to psychological and physical integrity, personal development and the development of social relationships and physical and social identity."

Discussion

It could not be disputed that "at her current placement M's situation simply cannot improve and, moreover, that effluxion of time in containment will exacerbate her problems as her primary mental health needs continue to go unmet."

While the court did not determine the point, it was accepted that there must be a cogent argument that the current placement is so unsuitable as to amount to a breach of her Art 5 right to liberty and arguably her Art 8 right to respect for private life.

There are also potentially disastrous consequences for the unit should M remain there in that other young people and staff are negatively affected and there is also a real possibility that the unit could be sanctioned and even closed for breaching its statement of purpose.

Absent very cogent reasons it is difficult to see how it can be sustainable for the two Trusts that have refused M one of their beds to continue to refuse to admit a vulnerable young person who has been assessed as requiring such provision.

Conclusion

It is profoundly depressing that the court has had to act as mediator/facilitator between NHS England and two NHS Mental Health Trusts in order to procure a tier 4 provision that the NHS is responsible for providing and M has been assessed as requiring, particularly as each day M spends at an unsuitable unit compounds her difficulties.

The court considered the parties' agreed way forward to be the best opportunity to break the impasse.

Case summary by Gill Honeyman, Barrister, Coram Chambers

For full case, please see BAILII