An NHS Trust v ST - Refusal of a Deprivation of Liberty (DOLS) Order for a 14-year-old child
The matter of An NHS Trust v ST  EWHC 719 (Fam), came before the MacDonald J in the High Court on 24th March 2022, with the NHS Trust applying for a DOLS Order in respect of a 14-year-old child, ST.
ST was known to Manchester Children’s Services and had an allocated Social Worker at the time of the hearing, and additionally had a diagnosis of ASD. It is fair to say, as the Court outlined, that ST is “an acutely vulnerable child with highly complex needs” [§2].
MacDonald J began his assessment of ST’s situation in quite stark terms, outlining that despite the “plight of vulnerable children and young people” having “been placed, entirely inappropriately, in hospitals for want of any other placement provision”, he found the circumstances of this case to be “shocking” [§1-2].
As I have noted above, it was the NHS Trust that applied for the order, and not the Local Authority, who the Judge noted were the body charged with safeguarding ST and promoting ST’s welfare. Throughout the hearing, the Local Authority’s Counsel was unable to obtain cogent instructions, it being evident to the Court that the Team Manager responsible for ST had only a superficial understanding of ST’s case.
The Local Authority had been aware of ST’s issues at home, her dysregulation and her difficult behaviours when dysregulated. ST had an EHCP which made reference to some of those behaviours and that they were escalating, with ST having a 6:1 supervision in her educational provision.
ST’s family attempted to present her to hospital on 21st January 2022, however Dr S “advised that ST should not be admitted to hospital unless there was a medical need as "there is clear risk of harm to her and others if she is admitted and this is not an appropriate place of safety in a crisis".” Notwithstanding that advice, ST was then admitted to hospital on 15th February 2022, when her family could no longer care for her and sadly were in a position of having to refuse to take her home.
The Court was unclear exactly what support was being offered by Manchester City Council at that time of what MacDonald J recognised was “a point of obvious crisis for the family” [§12]. In particular, it was noted that the Local Authority had not made an application for a Care/Interim Care Order given the threshold under s.38(2) would quite readily have been crossed, given ST was suffering harm and was beyond parental control.
Evidently, from ST’s admission to hospital, she had been under continuous supervision and control and was prevented from leaving the ward since that time. The Local Authority also employed a private company to provide 2 security guards and 2 carers to supervise ST on a 4:1 basis whilst on the ward. It is abundantly clear that ST’s conditions whilst admitted to hospital amounted to a deprivation of her liberty.
The Court went on to describe no less than 12 incidents which then occurred, without any declaration in place authorising a deprivation of her liberty, where ST was physically restrained by security guards, and/or tranquilised with Lorazepam or Promethazine [§16]. Each of those incidents is disturbing to read, and the Court quite rightly noted that each of the deprivations of her liberty prior to 18th March 2022 (of which there were at least 3), when no DOLS Order was in place, were likely unlawful. The application for a DOLS Order in respect of ST was only made on 17th March 2022.
Despite the obvious risks to ST herself without protection in place, given her dysregulation and behaviours, the Court concluded that it could not be in ST’s best interests for a DOLS Order whilst she remained on the hospital ward.
MacDonald J commented as follows:
“I cannot, in good conscience, 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. I cannot, 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. I cannot, in good conscience, 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. My reasons for so deciding are as follows.
Whilst I accept that the placement options that have now been mooted by Manchester City Council will not be immediately available, I am satisfied that the current circumstances are so antithetic to ST's best interests that it would be manifestly wrong to grant the relief sought. This conclusion is further reinforced by the fact that such placement options that have been mentioned will not be available for some weeks in any event” [§32-33] (Emphasis Added).
He went on to add that “not even the necessity of keeping ST safe in circumstances where no alternative placement is available can justify such authorisation, because it simply cannot be said on the evidence before the court that the placement she is in currently is keeping her safe” [§34].
Unsurprisingly, the Court ordered a detailed explanation from both the Trust and the Local Authority as to why the CAMHS advice given that ST should not be placed in hospital was not followed, given ST’s diagnosed ASH and learning disability and the level of regime that she was subsequently placed into. Statements of evidence were directed from the Director of Children’s Services, the Director of Legal Services, and the NHS Trust.
The Court made it manifestly clear that the current regime amounted to a breach of ST’s rights under Art.5 of the ECHR. MacDonald J reminded himself that judgments given by a Court in matters such as this should be sober and measured, however stated as follows:
“I am satisfied that it is not an exaggeration to say that to grant the relief sought by the Trust in this case would be to grossly pervert the application of best interests principle” [§39].
The Local Authority indicated at the hearing its intention to apply for an Interim Care Order, and, again unsurprisingly, the Judge found the interim threshold criteria met and made the order then and there.
This Judgment makes for disturbing reading! It is a necessary reminder that whenever a child may be deprived of their liberty, the appropriate application should be made, whether or not care proceedings have already been issued.
It is a well-known and deplorable situation that the country appears to find itself in, with placements for children with a high level of need being incredibly lacking, and that situation does not seem to be improving in the near future. However, in the face of clear advice from medical professionals that a hospital placement will not meet a child’s needs, Local Authorities will need to ensure that children are not in such placements which are in fact causing more harm.
The Judgment adds a postscript to outline that the Local Authority had identified a bespoke, short-term placement for ST following the hearing, and it may be that such bespoke packages where registered placements are lacking are the (temporary) solution. It is worth noting here that if bespoke packages are intended for longer-term scenarios, registration of the placement will need to be sought.