“Authorisation …would serve only to protect the local authority from acting unlawfully”

I was reading through the many case updates that arrived in my inbox the other morning and one really stood out to me: the case of Nottinghamshire v LH [2021] EWHC 2584. It is a judgement of the High Court under its inherent jurisdiction, and it relates to a child. So it wouldn’t normally catch my eye. But I think the principles could apply more widely, so I have been pondering it.

The facts of this case demonstrate a national problem in the care of children with complex needs. I don’t practice in childcare, and I don’t even work in local authority any more and yet even I know this is a big issue. And if I can see the smoke from here, I can only imagine how big the fire must be.

But anyway, LH is 12 years old and up until recently she was living with her mother and sister. The situation at home was significantly less than ideal, with mental health issues and domestic violence impacting on the whole family. She also has ADHD and autistic spectrum disorder and her needs were not being met at home. Her mother had made a number of requests for LD to be accommodated by the local authority. But she continued to live at home until, as seemed somewhat inevitable, matters hit crisis point and she was taken to hospital for urgent assessment.

She was found not to meet the criteria to be detained under the Mental Health Act 1983. The full reasoning behind that is not given in the judgement, so I assume that all parties accepted that position. But without any other options, she was taken to an adolescent mental health ward for the night whilst suitable support was identified. And there she remained.

The local authority applied urgently to the High Court for authorisation of the deprivation of liberty that was occuring, since she was effectively detained in hospital. The court considered it urgently and gave 2 very short authorisations prior to the hearing to which this judgement relates.

The difficulty faced was that not only was hospital not the best place for her needs to be met, it appeared to be causing a significant deterioration in her mental health, with a knock-on effect on the health of others on the ward. The circumstances really do make uncomfortable reading, and it is clear that no one shied away from the harsh realities in this case. Which I find quite refreshing, given our national tendencies to sugarcoat situations with euphemisms.

In the judgement, it is clear that judge Mr Justice Poole clearly struggled with the lack of other placements available, and was uncomfortable with either of the options on the table which were, essentially:

A) she remains on the ward until a suitable specialist placement is found for her, with authorisation from the court; or

B) she remains on the ward until a suitable specialist placement is found for her, without authorisation from the court.

Presented with these two undesirable options, the judge decided not to give the authorisation, the reasoning being that the authorisation would serve only to protect the local authority from unlawfulness (and accompanying compensation risks). There was no tangible benefit to LH of having the authorisation in place.

This, of course, made me think about similar cases related to adults.

Now let me be clear, in the vast majority of cases, systems of authorisation, whether through the court or the Deprivation of Liberty Safeguards are providing, or at least attempting to provide, tangible benefits to the person. The independent checks and probing questions are vital to ensuring powers are not used arbitrarily. They also provide genuine respect for individual’s autonomy where it would otherwise be very easy to sideline a person in the guise of care, which is damaging even when intentions are good.

What I am talking about is the type of cases that I came up against a lot in local authority: the complex ones where challenging behaviour makes finding a placement incredibly difficult and as a result, a person is in an environment that no one really thinks is good for the person, but is the ‘least worst’. The person’s alive, they’re fed, they’re getting their medication but are otherwise having very little in terms of quality of life. I can think of one patient, for whom the only real difference between his situation and LH’s is that he was 20 years old, and his upbringing had involved no domestic violence (at least not perpetrated by anyone but himself).

Yet with adults, either they would be detained under the Mental Health Act 1983, or authorisation would, most likely, be given by the Court of Protection (involvement of the High Court is also a possibility, but less likely as I explained here). That authorisation would come much slower, I have no doubt, as Nottinghamshire appear to have acted with admirable swiftness in this case, as does the court. In my experience, if LH were 18, everyone would still be putting off an application in the hopes of fixing the problem a month after the placement started. Whereas LH appears to have been on her third hearing, which is pretty darn impressive.

Other than that, though, I’ve been pondering the reasons for the differing approaches. As is observed in the judgement, this isn’t the first time the High Court has taken this approach in relation to a child. Does an 18 year old get any greater benefit from the court authorising an unsuitable placement than a 12 year old does? The benefit identified in COP cases, at least, is usually the mechanism for further review, hopefully within a very short timescale. This carries with it the perception of consequences for the local authority (or CCG) if they fail to fix the problem within a suitable timescale. But those consequences are pretty limited in the Court of Protection, and will either be a scathing reported judgement, or a costs order, or both.

Because these timescales usually stretch to weeks, or months, then short-term authorisation can, sometimes, disincentivise fixing the problem. If the matter is going back to the court in 3 months, well then another more pressing issue is likely to take priority. But if every day that the problem wasn’t fixed carried with it the potential for a negligence or human rights claim with significant compensation? Well, then it is much less likely the issue will be put off.

That appears to be the approach taken in this case. Two short term authorisations were granted, but only for a few days each. Yet the judge also appears to acknowledge that the local authority has been using best efforts to resolve the problem and that the national lack of suitable placements is the problem, not the local authority per se.

But that is also the case with many adult social care placements. Funding cuts and skill shortages within both health and social care have severely limited the options for people with needs as complex as LH, whatever their age.

So I, for one, am interested to see if the Court of Protection starts to take a similar line with adult social care cases, or whether this disparity in approach will continue to exist…

Another significant difference between this case and the cases I have come across in relation to adults appears to be that within a matter of days, an alternative was sourced. As is recorded in a subsequent judgement, a better (although still not ideal) placement was identified the day after the court refused the authorisation. Whether that was achieved through hard work or deep pockets, I cannot say. But I’ve never seen an adult placement for someone with challenging behaviour identified half as fast.

In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of either that local authority or organisation

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