Council and NHS trust criticised after judge refuses to authorise deprivation of liberty of 14-year-old girl on hospital ward

A High Court judge has strongly criticised Manchester City Council over a deprivation of liberty case involving a 14-year-old girl (ST) and demanded that it and an unnamed NHS trust give him a detailed explanation of how the situation arose, with the threat that senior officers will be required to attend at court as witnesses.

In An NHS Trust v ST (Refusal of Deprivation of Liberty Order) [2022] EWHC 719 (Fam) Mr Justice MacDonald said: “Used as this court is to dealing with the plight of vulnerable children and young people…it is difficult to describe the case that comes before the court this morning as anything other than shocking”, not least as ST had been known to Manchester for an extended period and had an allocated social worker.

She has a diagnosis of autistic spectrum disorder, moderate learning disability and challenging behaviours which include physical violence and damaging property and is, “on any estimation, an acutely vulnerable child with highly complex needs”. [judge's emphasis]

ST was at the time of the hearing placed in a hospital ward.

Macdonald J said the “abject situation” before him arose from an application made by the NHS trustfor a declaration under the inherent jurisdiction authorising the deprivation of ST's liberty. 

The judge also criticised Manchester for failing to give its barrister “any coherent instructions” until the hearing as to what it had done or intended to do regarding ST.

Turning to the history of the case, the judge said ST’s behaviour had become increasingly unmanageable at home giving rise to serious concerns for her safety and that of those around her.

She was admitted to hospital despite a doctor’s advice that it was not a suitable place for her because “the refusal by the family to take ST home left the trust with no choice but to admit her to the ward as a place of safety”. ST was taken to hospital by her father, who reported an inability to care for her at the family home following an escalation in behaviour.

“Once again, it is at present unclear what support was being offered to the family by Manchester City Council and the allocated social worker at this point of obvious crisis for the family”, the judge said.

“In particular, the local authority will no doubt explain in due course why it decided at this point not to make an application for an interim care order in the circumstances where there were reasonable grounds for believing that ST was suffering, or was likely to suffer, significant harm and that the harm, or likelihood of harm, was attributable to ST being beyond parental control.”

ST was admitted to a general paediatric ward solely as a place of safety and without being in need of medical treatment.

Manchester then employed a private company to provide two security guards and two carers to supervise ST. They were engaged on a five day rolling contract, giving a high turnover of staff.

ST was at one point held down by security guards and a support worker, the court was told.

Nurses witnessed the security guards on top of ST's legs and holding down her arms while she was laying upset in her bed, there was also a male support worker holding her head from above pressing her head into the mattress with fingers coming over her forehead. Nursing staff advised that restraint of the head was not appropriate.

MacDonald J said he could not, “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 [or] 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”.

The judge also could not “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.... [or] 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”.

Mr Justice MacDonald said it would be “manifestly wrong” to authorise the deprivation of liberty.

He said ST was in “a brutal and abusive” situation and not even the necessity of keeping ST safe in circumstances where no alternative placement is available could justify deprivation of liberty “because it simply cannot be said on the evidence before the court that the placement she is in currently is keeping her safe”.

MacDonald J said he would in due course require a detailed explanation from the trust and Manchester of why the advice of the Child and Adolescent Mental Health Service was not followed that ST should not be admitted to hospital without a medical need.

He agreed to grant Manchester the interim care order it “belatedly indicated that it intends to apply for”.

The judge refused to anonymise the council as it would be “entirely wrong in my judgment to keep those matters from the public domain”. The trust was anonymised only to protect ST’s identity.

MacDonald J concluded: “It is beyond serious dispute that Manchester City Council has failed to discharge properly its duties towards ST following her admission to hospital, notwithstanding the subsisting allocation of a social worker to her.

“Likewise, it is beyond serious dispute that the trust has, at best, been guilty of unacceptable delay in seeking authorisation for the deprivation of ST's liberty.”

Both bodies would be asked to give “a detailed explanation for these omissions”, which the judge said he expected would lead to a damages claim under the Human Rights Act 1998 on behalf of ST.

He required statements of evidence from Manchester’s directors of children's and legal services and from an appropriate senior member of the NHS Trust and would decide later “whether the attendance of those witnesses at court is necessary to assist in explaining how a 14-year-old child with an autistic spectrum disorder and a learning disability was unlawfully deprived of her liberty in a manifestly unsuitable placement supervised by a private company on a five day rolling contract without any application being made to the court for a declaration authorising such circumstances”.

Mark Smulian