the interaction between Children Act and Mental Health Act

This reported case is a County Court one (which means that it is not legally binding precedent) but it raises some unusual issues.

The “Too Long; Didn’t read” version – don’t treat a s20 child as no longer s20 just because they get detained under Mental Health Act; and if you enjoy judicial dressing downs, there’s plenty in here worth reading.

Re T (Children) 2014

http://www.bailii.org/ew/cases/EWFC/OJ/2014/B116.html

The application itself was by a child, St, now 16, for contact with her siblings. There were five children  (plus St herself, plus another sister older than St). I note that the Judge identifies birth dates for all of the children.  I won’t in this piece, because I think that there are a limited number of families in the Preston area with seven children and the specific dates of birth is probably all that is needed for them to be inadvertently identified by people in that area reading the judgment.  (The “jigsaw identification” issue)

St had had many difficulties in her life and at the time of the application was detained under section 3 of the Mental Health Act for treatment in a hospital. Her parents had had difficulties in caring for her and from around June 2012 had really delegated her care to the Local Authority.

For all practical purposes, the Local Authority had been caring for St and meeting her needs and looking after her from June 2012 until she was detained under s3 of the Mental Health Act.

The case was not care proceedings, but rather St’s application under section 8 of the Children Act 1989 for contact with her siblings (or as I must now describe it through gritted teeth “for a Child Arrangement Order to spend time with her siblings”  (or in my own rebranding of the rebranding  “Shiny Happy People order”)  )

The Judge had been concerned about the impact on these five children of contact with St, given her predicament and health. He directed the Local Authority to file a section 37 report advising about these matters.

On 7^th January 2014 it emerged that St’s status had been changed by the Local Authority and that she was no longer deemed by them to be a child looked after within the meaning of the Children Act, with to s.20 status, but was deemed by them to be a child in need under s.17 of the Children Act. That was extremely concerning because the change of status was reported already to have had a direct impact upon St’s circumstances for the worse. It therefore seemed to me to be appropriate to make a s.37 direction in relation to St and to make her brothers and sisters parties to the proceedings. I recorded, the Local Authority being represented, what the Local Authority had to say about the change of status at that hearing and the order I made includes this recording:-

“The Local Authority contends that under internal policy, St is not ‘looked after’ by them and has not been since she was sectioned under s.3 of the Mental Health Act 1983.”

[I will confess very quickly that I don’t know, off the top of my head whether a looked after child ceases to be looked after once they become detained under the Mental Health Act. There are two possibilities – a common sense literal one that says that it isn’t the LA looking after her any more, it is Health, so she is not. And a technical one that suggests to me that there were a raft of statutory instruments that said that children in prisons were looked after so maybe there’s one kicking around that I can’t yet find that says the same thing about mental health]

But more to the point, the Judge’s issue was that this decision had actually detrimentally affected St.

Once again, I made recordings about St’s circumstances, setting out what was being relayed to me by the Local Authority through their counsel; this is recorded on the face of that order:-

“Lancashire County Council informed the court that they deemed the applicant, having ceased to be accommodated under s.20 of the Children Act 1989 when she became detained under the Mental Health Act in September 2013”.

And also;-

“Lancashire County Council further suggests that from the point of such detention, primary parental responsibility which was not being exercised by the respondents was to be exercised by the hospital”.

That doesn’t sit right with me – the hospital were looking after St and meeting her physical needs and mental health needs, but they weren’t exercising parental responsibility for her. Suppose for the sake of argument, she had needed an operation that would not have been authorised without parental consent and does not come within the treatment powers of s3? This suggests that the hospital could consent in loco parentis, and that just does not feel right to me.

I was sufficiently concerned that this decision making and approach deprived St of anybody to exercise parental responsibility for her was likely to cause her significant harm given her particular vulnerabilities and circumstances. I therefore made interim care orders in respect of her in accordance with the section pending the preparation of a further s.37 report the need for which was conceded by the Local Authority,.

[As readers of the blog may have picked up, I’m not a huge fan of ICOs made under s37 of the Children Act by a Judge of their own motion, but that seems to me to have been the right call here.  I dread to think of how the LA resolved the placement provisions under s22C with a placement in a mental health hospital. For what it’s worth, my attempt would be s22C (6) (d)   – I’m not going to set all of that out, because there are limits to even my law geekiness]

The LA decided not to issue care proceedings at the conclusion of that Interim Care Order.

The Judge was disappointed

 I should explain why I consider three separate aspects of the Local Authority’s decision making in respect of this child are in error and represent a failure to promote her welfare.

I have three purposes in delivering the judgment. Firstly, I very much hope that after receipt of the judgment the Local Authority will review again their approach to this case. It seems to me that it is always a professional strength and not a weakness to be able to change decisions previously taken if it is right to do so.

Secondly, this seems to me to be an important opportunity to publish a judgment which highlights what has happened to a child who ought to have benefitted from two statutory schemes of protection, both under the Mental Health Act as a person suffering from a mental disorder and under the Children Act as a child who a has suffered or is likely to suffer significant harm. St, in any event, is a child whose welfare overwhelmingly deserves scrutiny and promotion within proceedings.

Thirdly, and this is not my primary purpose, it is the intention of those who act on behalf of St to pursue either or both a complaint and/or other remedies in respect of her against the Local Authority and it may very well be that there are matters covered in this judgment that they consider to be of use in pursuing such courses of action. Providing assistance for those proposed actions is certainly not my primary objective and neither would it be proper for that to be a primary objective. The judgment is therefore mainly given in the hope that the Local Authority might reconsider and to highlight the difficulties that have beset this child who has unfortunately fallen between two statutory umbrellas of protection.

As nobody was “looking after” St, and her parents had effectively stepped away from her, when she was in the hospital nobody had provided her with funds or the wherewithal to even have basic funds to buy toiletries or christmas presents for her siblings.

The hospital were firmly of the view that the Local Authority ought to be looking after St

I therefore have a full letter dated 21^st May 2014 written by Dr K, a consultant child and adolescent psychiatrist at the hospital, the responsible clinician for St. The letter sets out his perspective upon what he regards as the necessity of ongoing looked after status during admission. I am very grateful to him for providing that. He says at paragraph 3 of that:

“I find this to be an unusual position and not one which is taken by other local authorities who have responsibility for looked after children who are placed on [name of hospital given] unit.”

He goes on to say:

“I am not aware of any hospital ward that would take parental responsibility upon themselves. Provision of care in loco parentis is much the same as is provided by schools or residential homes and specific decisions regarding treatment require the hospital to seek consent from the individual with parental responsibility in a similar manner as would be the case in the community.”

He also goes onto say that St, for the most part, may have the ability to give her own views but that there will be times when that may not be the case given her illness. He says this:

“It may also be worth clarifying limitations of the Mental Health Act in regard to consent to treatment. Section 3 allows for the provision of treatment for a mental disorder to be provided within a hospital setting and as such it allows for treatment to be given under certain circumstances against a patient’s wishes or where they lack mental capacity to give their valid consent. However, the MHA only relates for treatment of the mental disorder, it does not make provision for physical health conditions to be provided against a patient’s wishes, nor does it allow for any other decisions to be made about wider aspects of a patient’s affairs and lifestyle. In the case of a minor, such a decision is either required to be made by taking valid consent from the patient or where this is not possibly by seeking consent from the individual with parental responsibility. There is no legal provision within the Mental Health Act, or any other statute of which I am aware, that allows for a hospital to take parental responsibility upon themselves. In fact I would argue that is strongly in the interests of the young person that a party independent of a hospital hold this role, particularly when the young person is detained by the hospital against their will.”

He goes on:

“Moreover, the benefits of continued looked after status whilst a minor is placed within a hospital setting go beyond the provision of valid consent for decisions that do not relate to the mental disorder. Given the complexity of St’s case and the nature of her social care needs it appears essential to me that she has the benefit of a social worker taking a parental role so as to provide her with continuity and stability of care as well as advice and support around the many challenging issues that she is currently facing.”

Equally that was the view of both Mr Jackson and Mrs. Walwin-Holm, the children’s guardians who have at different times represented St within these proceedings. Dr K’s perspective is that of an experienced clinician working within an acute setting to alleviate the distress and improve the situation of young people in the very distressing circumstances that St finds herself. Any person in hospital, whether a young person or a child or not, seems to me to need – and I apologise for being intensely practical – moral support, social support and financial support. My focus here is upon this child during this admission.

By the time of the hearing, the Local Authority had wisely reconsidered their decision to treat St as no longer being a looked after child. That of course does not prevent St or her representatives from satellite litigation about whether that decision was unreasonable and whether it had a deleterious effect on her.

I don’t think that the Judge really warmed to Mr McHale, the senior manager who had made the original decision to stop treating St as a looked after child.

   I should, in passing, take some comfort from Mr McHale’s approach to the views of the clinicians. This paragraph I read from his statement, of 23^rd July 2014 also reflects his oral evidence when he was challenged. He says:

“While I respect the views of my health colleagues, they do not have a full understanding of the roles and responsibility of CSC in relation to children and young people and although we would always listen to their opinion, ultimately it is our responsibility to decide how we deal with individual children and their legal status.”

So I should perhaps take some comfort that the Local Authority are no more prepared to defer to the clinical view than the court’s view.

Ouch.

On discussing how that decision was made, and why, the Judge had this to say  (underlining mine for emphasis)

I am not going to attempt to make a finding of fact as to what the reasoning actually was or what was actually decided. Mr.McHale claims that it was a child specific welfare focused decision. If it was, it seems to me that it worked very badly indeed because it had an immediate impact upon the service that St was receiving for the worse. She ceased to receive any financial support from the Local Authority and the level of moral and social support given to her also decreased in the wake of that decision. There was a CPA (Care Programme Approach) meeting at the hospital in December 2013 which the Local Authority did not attend. St therefore lost her Looked after Child status and the review system, she lost her independent reviewing officer, she lost the duty of the Local Authority to promote contact between her and relevant people and she was left with no money for basic necessities. She is said to have felt abandoned, a feeling that she has been reported as having to have felt on a number of occasions during the proceedings.

Mr McHale asserted that this was never his intention and that in fact what he intended was for all those services St had been receiving under s.20 to be continued by way of an exercise of discretion under s.17. The Local Authority have not brought any contemporaneous documentary evidence to support this assertion. Mr. McHale was apologetic for particularly the loss of money for St which had an intensely distressing effect upon her in circumstances I will come to describe. In general however it seems to me overall that the impact of the decision, whether specifically child focused or a matter of policy, was deleterious to the welfare of the child. It seems to me as a matter of common sense and experience that if somebody is admitted to hospital they do not change their usual home or their residence. They go to hospital to be treated for the duration of an illness. It seems to me highly unlikely that a Local Authority would even contemplate changing a child’s status from s.20 to s.17 if that child were to be admitted to hospital for treatment for any serious or long-term physical illness. It therefore seems to me quite inappropriate that this child, who was subject to s.3 of the Mental Health Act and detained for treatment in hospital for a mental disorder should have lost a status which conveyed rights upon her which would have continued had the illness requiring treatment not been a mental disorder

It seems to me that the care programme approach of the Mental Health Acts should work hand-in-hand with the Looked after Child processes of the Children Act. These schemes should not be alternatives but should be complementary. That would seem to be the view also of the clinicians. The Local Authority and other parties to these family law proceedings have concentrated on St’s right to services upon discharge from hospital, whether as a Looked after Child entitled to a Pathway plan and services for leaving care or otherwise. That is not the focus of this judgment not only because it should not be the focus of this judgment but also because upon discharge from hospital under the Mental Health Act St will be entitled to extensive services both from the health authority and the Local Authority under s.117 of the Mental Health Act.

My concern is that St’s circumstances on the ground were acutely and deleteriously affected by her change of status and this was also the view of the clinicians at the hospital which was expressed during the CPA meeting to which I have referred on 13^th December 2013. I have the record of the meeting in which the following is recorded:

“On admission to [name of residence given] St was under a looked after child s.20. Whilst in hospital her case has been closed and she is no longer considered to be looked after. A senior support worker has not been allocated to ensure that St continues to have involvement with services whilst she remains in hospital.”

Later, the meeting, minutes record this:

“Members of the meeting expressed frustrations and difficulties associated with the removal of St’s LAC status due to her being in hospital. Difficulties arise in particular around St’s physical health and the need for parental consent for certain forms of treatment, despite the current lack of contact and care from St’s parents. There is also a lack of money for St now. Kayley I, advocate, also expressed St’s views and distress at the lack of monies. Options were discussed as to how this could be managed. Funding agreed from social care that St to receive £20 a month for toiletries, all agreed that this is not enough. The meeting discussed making a complaint to the Local Authority about the removal of a young person’s looked after care status when a young person becomes an inpatient and all agreed this would be a good idea.”

[I think the Judge’s analysis that if this child had been in hospital for a broken leg there would have been no suggestion that she was no longer looked after by the Local Authority is a very good one, and it is a good way of looking at it. It may be, and it would require a delve into the Regs that is beyond my current level of enthusiasm and curiousity that this child is not technically s20 but it must be manifestly better for her to have treated her in all ways as though she were]

In case you think that the Judge was social-work bashing in this judgment, she clears this up.

Mr McHale in his evidence, having read what was trenchant criticism of the Local Authority written by Mr Jackson the then child’s guardian, repeatedly asserted that he considered that the Local Authority had delivered an excellent service to St. In that sense he seemed to me to be understandably taking up cudgels on behalf of his staff. I hope he understood, and I hope that anybody reading this judgment understands, that this judgment is intended to be critical, indeed trenchantly critical of the decisions of the Local Authority. However it is by no means intended to be a criticism of the staff who have been working the case on the ground. It is my impression that those staff, that is Mrs S and her manager, have delivered, as Mr McHale asserts, an excellent service to St within and despite the parameters of the decisions of their senior management. This judgment is not intended in any way to undermine that impression. This court, the social workers on the ground, their managers, the clinical team and the children’s guardian are all motivated by having come across a child in St’s situation to improve her situation. My focus has been on how the realisation of that aspiration has been marred by the decisions of senior management. I therefore agree with Mr McHale that his staff have delivered an excellent service to this child. This is despite the decisions that have been made by their senior management.

This isn’t social work bashing – this is manager bashing. Short of Mr McHale writing to the younger children to tell them that there was no such thing as Father Christmas, there was not much lower for the Judge’s opinion of him to go.  The overriding judicial impression I was left with was (to borrow from Mark Twain) that the moment had arrived for Mr McHale to leave this world and to declare to the Court which of the two possible destinations he was heading for, so that the Judge could make arrangements to head to the Other Place.

I don’t know Mr McHale, let us be charitable and say that this was one where his actions were out of character (and to be fair, it is legally tricky as to whether s20 technically applies here).  It is never fair to butcher someone based on one case alone, particularly a tricky one.

The LA, in the light of all this made the submission that the case should now come to a close and the Court bow out and let the LA get on with it.

The word on the tip of your tongue is ‘bold’  – that’s a ‘bold’ submission.

That doesn’t really go far enough – that’s a submission for which an advocate is entitled to have a stuntman for.

Do we think the Judge agreed with their Stuntman submission?

The Local Authority case, put with admirable clarity by Miss Grundy in her written submissions, is that now is the time for the court to bow out completely not only in relation to St but in relation to all of the children and that the proceedings are ready to be concluded. There are cases when that is entirely right and the court should take a focused and issue specific approach to dive in and dive out of children’s lives and not exercise a more surveying role. In this case I decline to do so. It seems to me necessary that the proceedings continue and the court will bow out when the court is assured that that contact is set to continue appropriately and that all of the necessary services are going in. I flagged up to the parties the possibility of a family assistance order at the final hearing. No party considered this to be a good idea. This court’s scrutiny is going to be upon all of the professionals involved in any event, whether they remain in via s.37 or merely as witnesses. I note that the Local Authority decline to accept a family assistance order as well.

I would very much hope that the Local Authority will consider what I have said in this judgment. It is to be transcribed and published. It seems to me right that the plight of children who are subject to both the Mental Health Act because they are ill and need to be detained for treatment and to the Children Act because they are likely to suffer significant harm attributable to being out of control or by reason of parental default is one that should be brought to the public attention.