2024 Oct 29, 30; Nov 19
Children - Inherent jurisdiction - Deprivation of liberty - Young person exhibiting challenging behaviour but not admitted to hospital for treatment under mental health statutory scheme - Local authority obtaining interim care order and young person deprived of liberty in hospital placement under inherent jurisdiction - Local authority seeking declaration that inherent jurisdiction not available in circumstances where young person “within scope of” statutory scheme - Whether application involving impermissible review of statutory scheme decision-makers - Whether jurisdiction to make deprivation of liberty order -
A young person with autism, and potentially a delusional disorder, had exhibited antisocial and challenging behaviour that placed her and others at risk of very serious harm, resulting in repeated referrals to the local authority, local psychiatric services and the police. However, on no less than six occasions a health care professional had concluded that she did not meet the statutory criteria for detention in a hospital for treatment pursuant to section 3 of the Mental Health Act 1983F1. Her continued extreme behaviour resulted, nevertheless, in the local authority obtaining an interim care order and placing her in a general adolescent unit (operated by the local health board) where she was detained pursuant to an order under the inherent jurisdiction of the High Court authorising the deprivation of her liberty in a place of safety. The issue arose between the local authority and the heath board as to which statutory body was responsible for the care and treatment of the young person and under which legal framework. Accordingly, the local authority sought a determination of whether the inherent jurisdiction was available, and could be appropriately deployed, to authorise the ongoing detention of the young person in a mental health hospital or whether the young person “fell within the scope of” section 3 of the 1983 Act with the effect that the use of the inherent jurisdiction impermissibly “cut across” the statutory scheme.
On the local authority’s application—
Held, refusing the application, that the authorities were abundantly clear that the court had no role to supervise or review decisions which had been entrusted by Parliament to another public authority, the Mental Health Act 1983 being an obvious example where Parliament had provided for a statutory code in respect of the detention of people with a mental disorder for treatment in hospital; that for the court to make findings and/or declarations about whether the young person was detainable under section 3 of the 1983 Act when contemplating the exercise of the inherent jurisdiction would be to exercise an impermissible supervisory or review function of the clinicians and mental health professionals acting pursuant to the provisions of the 1983 Act, and there was simply no jurisdiction to make such findings or orders; that, moreover, even if the court were to make a finding that the young person was detainable under section 3 of the 1983 Act that would not, of itself, lead to the young person being detained in a hospital for treatment under the 1983 Act and, if an order were made that led the clinicians and professionals charged with making the decision to change their professional opinions, the making of that order would amount to an abuse of process; and that, accordingly, in the present case the court would continue to authorise the young person’s deprivation of liberty at her current placement pursuant to its inherent jurisdiction (post, paras 59, 61–63, 67, 68).
Per curiam. In so far as Schedule 1A to the Mental Capacity Act 2005 makes express statutory provision for finding that a person is ineligible for deprivation of their liberty under the 2005 Act in a case where they could be detained under the provisions of the Mental Health Act 1983, it enables the Court of Protection to consider and determine the question of whether a person could be detained under section 2 or 3 of the 1983 Act. However, it is limited to determining the specific question of whether a person is ineligible to be detained under the provisions of the 2005 Act and there is no basis for concluding that this provision is to be read as having a wider application so as, in particular, to permit the court to determine whether a person is “within the scope of the Mental Health Act” when exercising its powers under the inherent jurisdiction (post, para 60).
APPLICATION for a declaration
By application dated 5 July 2024 the local authority, Conwy County Borough Council, applied for a care order under Part IV of the Children Act 1989 in respect of a young person, SB, through her children’s guardian, Lorraine Fozzard, who was beyond the control of her parents, PR and LC. An interim care order was made on 23 July 2024. On 25 July 2024, the local authority made an application for the deprivation of the young person's liberty to be authorised pursuant to the inherent jurisdiction of the High Court. A deprivation of liberty order was made on 26 July 2024 and she was placed in a general adolescent unit under the responsibility of the Betsi Cadwaladr University Health Board, who were joined as a respondent to the proceedings on 13 August 2024. The deprivation of liberty order was subsequently extended but the local authority sought a declaration, and ancillary orders, from the court that because the young person was detainable under the provisions of the Mental Health Act 1983, particularly section 3 thereof, the court did not have jurisdiction to grant a deprivation of liberty order pursuant to the inherent jurisdiction of the High Court. The local authority submitted that it was the responsibility of the health board (pursuant to the 1983 Act) to make provision for the care and treatment of the young person and not the responsibility of the local authority, even with the benefit of a deprivation of liberty, if authorised by the court. The health board strongly opposed that position and asserted that (i) the court had no jurisdiction to determine whether the young person was detainable in a hospital pursuant to the 1983 Act; (ii) the court had no jurisdiction to exercise a reviewing or supervisory role of the decisions made by clinicians and professionals under the 1983 Act; and (iii) that for the court to make a declaration or findings as to whether the young person was detainable under the 1983 Act put pressure on the health board to change its position, or otherwise, was an abuse of process. The children's guardian and the mother supported the case advanced by the local authority while the father did not.
The judgment was delivered in private and is reported with permission of the judge on condition that the anonymity of the child and the family members be strictly preserved.
The facts are stated in the judgment, post, paras 1–29, 37–40.
Joseph O’Brien KC (instructed by Legal Team, Conwy County Borough Council) for the local authority.
Dominic Boothroyd (instructed by HD Law Ltd) for the father.
Nicholas Sefton (instructed by Gamlins Solicitors LLP) for the mother.
Neil Owen-Casey (instructed by Gamlins Law Ltd) for the young person, by the children’s guardian.
Emma Sutton KC (instructed by NHS Wales SSP Legal & Risk Services) for the health board.
The court took time for consideration.
19 November 2024. KEEHAN J handed down the following judgment.
Introduction1 I am concerned with one young person, SB, who was born on 25 January 2009 and is 15 years of age. Her father, the first respondent, is PR and her mother, the second respondent is LC.
2 On 5 July 2024 the local authority, Conwy County Borough Council, made an application for a care order in respect of SB. She was made the subject of an interim care order on 23 July 2024.
3 On 25 July 2024, the local authority made an application for the deprivation of SB’s liberty to be authorised pursuant to the inherent jurisdiction of the High Court. The first deprivation of liberty order (“DoL”) was made on 26 July 2024. It has subsequently been extended.
4 Since April 2024 SB has been exhibiting increasingly challenging and extreme behaviour which has placed herself and others at very real risk of very serious harm and, potentially, leading to her death or the death of others. She has been the subject of repeated referrals to the local authority, local psychiatric services, and the police.
5 SB is currently placed in a General Adolescent Unit located at the North Wales Adolescent Service (“NWAS”) subject to a DoL. Betsi Cadwaladr University Health Board (“the health board”) is responsible for caring for SB during her admission to NWAS. It was joined as the fourth respondent to these proceedings on 13 August 2024.
6 An issue has arisen between the local authority and the heath board as to which statutory body is responsible for the care and treatment of SB and under what legal framework. This issue culminated in the local authority seeking a declaration and ancillary orders from this court, in short form, that because SB was detainable under the provisions of the Mental Health Act 1983 (“the 1983 Act”), the court did not have jurisdiction to grant a DoL pursuant to the inherent jurisdiction. In practical terms, the thrust of the local authority’s case was that it was the responsibility of the health board, pursuant to the provisions of the 1983 Act, to make provision for the care and treatment of SB, and not the responsibility of the local authority even with the benefit of a DoL, if authorised by the court.
7 The health board strongly opposed the position of the local authority...
