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Blackpool Borough Council v HT (A Minor) & Ors [2022] EWHC 1480 (Fam)

MacDonald J grants a short extension to a DOLS order in circumstances where there continues to be an acute lack of appropriate resources for children requiring therapeutic care within a restrictive environment.

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Background

MacDonald J describes the background to this case as 'depressingly familiar' to those involved in DOLS proceedings. HT, now aged 17, had experienced difficulties since 2019.  Concerns included serious attempts to self-harm and to end her life, assaults on professionals and criminal behaviour.  She had experienced a period in secure accommodation pursuant to a detention and training order and in patient admission under s.2 MHA 1983. 

In June 2021, an ICO was made. HT was placed in an unregistered placement, G. There were concerns that the placement was not meeting her needs and, while the unit indicated it was in the process of applying for Ofsted registration, there was a lack of clarity as to the progress of that application. Searches for an alternative placement had been unsuccessful. 

In January 2022, HT was tasered by police in circumstances where she had taken an overdose and was on a motorway bridge. Following an assessment under s.136 MHA 1983, she was discharged to G. In early March 2022, HT expressed suicidal thoughts.  An assessment recommended Tier 4 (in patient) CAMHS admission.  However, the Access Assessment by the unit responsible for the Tier 4 CAMHS provision indicated that admission was not merited. This noted that HT's difficulties were long standing with little role for assessment in hospital; there was no inpatient treatment identified for HT; the only potential benefit of admission would be risk mitigation but the risk would not decrease as in her previous admissions risk had escalated significantly.  Community based support was not put in place due to a miscommunication. 

On 18 March 2022, HT's behaviour escalated again. Following attendances at the Emergency Department, an application was made for a s.2 MHA assessment. No Tier 4 beds were available and the Access Assessment conclusions were reiterated. The LA considered HT's presentation to be psychotic whereas the unit responsible for the Tier 4 CAMHS provision considered it was more suggestive of a trauma based response.  In April 2022, a Complex Case Forum was held. HT was discharged from CMHT as she refused to engage.  She was not able to engage in psychological therapy.

On 6 May 2022, G gave notice on the placement. An alternative placement had not been found. 

The LA asserted that the NHS should be making provision for HT; the NHS argued that she did not meet the criteria for such provision. The NHS Trust was joined as an intervener.  The matter came before MacDonald J on 11 May 2022.

Discussion

DOLS applications often come before the court in the context of a dispute between the LA and the relevant NHS CCG as to whether the child should be provided with an inpatient bed or accommodated by the LA.  MacDonald J noted that the courts have repeatedly emphasised the need for the State agencies engaged in cases of this nature to work co-operatively to achieve the best outcome for the child or young person. 

In setting out the law on DOLS, MacDonald J observes that although the applicable test is easy to state, the circumstances in which the test falls to be applied are often notoriously difficult.  He quotes his previous judgments in Lancashire CC v G (Unavailability of Secure Accommodation) [2020] EWHC 2828 and Wigan Metropolitan Borough Council v W and others [2022] 1 FLR 1226. The lack of appropriate resources increases the risk of decisions being driven primarily by expediency with the welfare principle relegated to second place.

MacDonald J examines the respective obligations on the State agencies and the provisions of MHA 1983, including case law highlighting the difficulty in seeking to distinguish between psychiatric illness and the psychological impact of trauma. He sets out the CAMHS administrative framework in some detail, including that Tier 4 CAMHS provision is administered separately from Tier 1-3 outpatient services. Acceptance by a Tier 4 CAMHS Service must be by way of an Access Assessment by the Tier 4 service. Even where an application for admission for assessment is certified by two qualified medical professionals as meeting the criteria under s.2 MHA 1983, the provision of the Tier 4 CAMHS bed is subject to the outcome of a referral that complies with the National Referral and Access Process, including completion of the Access Assessment. 

Where an Access Assessment has concluded that admission to a Tier 4 CAMHS service is not appropriate, the role of the court is limited. The court will not ordinarily entertain a claim for judicial review in respect of a decision not to allocate medical resources to a particular case. The court may join NHS England (and sometimes the relevant CCG) where the court may wish to invite reconsideration of the decision not to make Tier 4 inpatient provision [see Re X [2017] EWHC 2036 (Fam)]. The court may also direct a single joint expert to provide a second opinion, though the efficacy of this approach is limited given the court's limited powers to give effect to an expert recommendation, which is contrary to the position taken by the NHS.

Decision

Having regard to the evidence provided by the NHS Trust and the cogent reasons why admission would not benefit HT at present, MacDonald J found there were no grounds to invite the NHS to revisit the Access Assessment.  The local authority did not press for this or pursue the instruction of a child and adolescent psychiatrist. 

This case is another example, amongst many, in which the acute lack of appropriate resources, for children assessed as not meeting the relevant criteria for detention under MHA 1983 but requiring therapeutic care within a restrictive environment for acute behavioural and emotional issues arising from past trauma, creates tension between LAs and the NHS. There is a need for agencies to work co-operatively in order to ensure that the correct provision for the subject child is achieved.  It is important that professionals working with the child have a clear and comprehensive understanding of the operational procedures of other agencies involved. In particular, the LA need to bear in mind the process of obtaining an inpatient bed is subject to the Access Assessment.  The scope for the court to intercede in respect of such a decision is extremely limited.  

The court was satisfied it was in HT's best interests to authorise until 20 May 2022 the DOL restrictions in the current placement, while efforts were made to identify a placement that could fully meet her complex needs. The DOL restrictions included 3:1 supervision 24 hours a day.  Though the placement was struggling to meet HT's needs, the risks were too high to relax the restrictions.

The absence of an alternative placement is a relevant factor in the best interests evaluation [see Tameside Metropolitan Borough Council v C and Others [2021] EWHC 1814 (Fam)].  There will be cases in which the absence of an alternative placement for a child cannot justify the continuation of a current placement because that placement is causing harm to the subject child. However, while the placement at G was sub-optimal, it was at least keeping HT safe in the broadest sense of the word. 

Case summary by Victoria Roberts, Barrister, Coram Chambers

For full case, please see BAILII