By Celia Kitzinger, 10th January 2022
The person at the centre of this case (NA) is a 17-year-old woman diagnosed with autism, mild learning disability and emotional dysregulation. She also has Hepatitis B, contracted from her mother at birth.
Since June 2019, when NA’s mother reported she could no longer care for her, NA has been a “looked-after child” (Children Act 1989).
For much of that time she has been in secure children’s homes.
She has experienced multiple placement breakdowns and is now on her 14th or 15th placement since mid-2019.
During the five months I’ve been observing hearings concerning NA, she’s been living in accommodation described (by the local authority) as “wholly inappropriate”. The local authority is seeking a suitable placement for her and the search has been nationwide for every conceivable form of placement, including children’s homes, specialist therapeutic residential homes, residential schools, solo placements, crisis placements, adults’ residential homes, and adults’ specialist placements. Unfortunately, “despite the very extensive and continual efforts of the local authority to identify any suitable, alternative placement for NA, and including secure accommodation options, one had not been identified” (statement for the local authority).
I have observed a series of five hearings, all primarily concerned with finding a suitable placement for NA. I think there have also been other hearings in this same six-month period that I have not observed. So far, there is still no suitable placement for NA.
The problem seems to be a scarcity of suitable accommodation for someone with NA’s constellation of needs.
This blog post updates a previous post covering the hearings of 2nd July 2021, 16th July 2021, and 26th October 2021, which I’ve also summarised below.
The two new hearings, not previously reported, are those of 16th November 2021 and 14th December 2021.
It is hoped that this blog post will provide useful background for anyone concerned about secure accommodation for young people, who might also want to watch the next hearing, which is provisionally listed for 24th February 2022.
The hearing of 2nd July 2021, before Mrs Justice Judd.
When this hearing took place, NA was being held inappropriately in an A&E bed after “a significant episode of dysregulation” between 25th and 27th June 2021 in the care home where she’d been living.
She’d been continuously awake and “experiencing mania” for 72 hours, during which she gained access to the roof and threatened to kill herself. She threw boiling water from a kettle over staff caring for her, and threw nail polish remover into the eyes of a carer saying she wanted to blind them. She armed herself with knives and parts from a broken bed and threatened staff. She set fire to a tea towel, saying she wanted to burn the house down.
The day before this hearing she’d been assessed as not meeting the criteria for detention under the Mental Health Act 1983, but there was nowhere to discharge her to because the care home was unable to agree to NA returning, saying it could not keep NA and others safe.
The local authority had been trying “desperately” to find somewhere but had not been successful and asked for a three-week adjournment, which Mrs Justice Judd granted. (More details in an earlier blog.)
The hearing of 16th July 2021, before Mrs Justice Judd
At this hearing it was reported that an “emergency” placement had been found for NA in an annex (for her sole residence) to the main building of a children’s home.
She had carers with her on a 4:1 basis, 24 hours a day. “Staff have been pulled in from elsewhere to provide the support she needs, and have received appropriate levels of training in relation to restraint.”
There was some difficulty with respect to authorising NA’s deprivation of liberty: it was opposed by counsel for NA via the Official Solicitor on the grounds that there was insufficient evidence to displace the presumption that NA has capacity to make her own decisions about care and residence – at least at times – and because there is at the moment no evidence as to NA’s own wishes and feelings in this regard.
Faced with an impossibly difficult situation, Mrs Justice Judd authorised depriving NA of her liberty for an interim period, but did so under the inherent jurisdiction rather than the Mental Capacity Act 2005.
An expert was instructed – the Consultant Psychiatrist, Dr Claudia Camden-Smith, to report on NA’s mental capacity in relation to a number of areas including capacity to make her own decisions about where she lives and the care she receives, and whether she has capacity to refuse COVID vaccination (which she hasn’t had, and says she doesn’t want). The report was due at the end of October 2021.
Meanwhile, there had been a further period of dysregulation (the day after the previous hearing) involving alleged assault and criminal damage (at the hospital, before moving to the interim placement), following which NA had been arrested and detained in police custody, where she was verbally and physically aggressive and racially abusive. (More information in an earlier blog post.)
The hearing on 26th October 2021, before Sir Jonathan Cohen
There was still no suitable placement available for NA. Some of the options that had been under consideration were now no longer considered suitable due to the risks she has posed recently during some further periods of dysregulation.
It was reported, for example, that a week or so earlier (on 18th October 2021) NA had attacked a staff member, dragging her downstairs, punching and kicking her in the back and ribs. She said she wanted to kill her and crack her head open. She was restrained. On release, she pressed the emergency release button into the carpark and went out and damaged vehicles. When the police were called, she went back inside and hid, but was carried from the building and placed on suicide watch in police custody. In the police cell she was observed to be hitting her head and pushing her acrylic fingernails up her nose to create blood which she spat around the cell.
The crisis intervention team caring for NA were, it was reported, “truly shocked by the extent of the violence and aggression and accompanying risk”and were raising the possibility that NA has an undiagnosed psychosis. She now needs 6:1 care to keep her and others safe.
There was also no expert report because NA had refused to see Dr Camden-Smith. (More information in an earlier blog post.)
The hearing on 16th November 2021, before Mr Justice Poole
My understanding is that an application had been made to vacate this hearing because there had been no progress in finding a suitable placement for NA, and so “it would be in NA’s best interests to maintain her current placement and care arrangements and for the matter to be returned to court in approximately 4 weeks time. By the next court date, it is envisaged that the available accommodation and transition plans will have crystalised.” (Lucy Leeming, counsel for the Local Authority).
The judge, Mr Justice Nigel Poole, required the hearing to take place.
“I was reluctant to approve the papers [without a hearing]”, he said, “given the extensive restrictions that authorisation has been given for, and that are still sought, and given the length of time that P has been in accommodation that’s been considered unsuitable”.
And so, he said “I required the full attendance of the court”.
At the hearing counsel for the local authority, updated the court on four matters:
- Despite a nation-wide search, there was still no placement. Three possible placements were under consideration, and the preferred option would be available by the end of the following month after as-yet-unresolved application for registration by the Care Quality Commission.
- NA has been charged with the offences of criminal damage and common assault, with “a raft of further criminal offences in the background”. “We are”, said counsel of NA via the Official Solicitor (Arianne Kelly) “alive to the fact that there may be an impact on accommodation if a custodial sentence were to follow”.
- There had (finally) been a meeting between NA and Dr Camden-Smith on 11th November 2021 and it was expected that Dr Camden-Smith would submit her report by the 7th December 2021 deadline.
- There was concern about grooming – and police were aware of this. NA’s phone had been taken from her and retained for police inspection. She’s agreed not to use Facebook and to share use of her phone with those caring for her. There is no capacity assessment in respect of NA’s use of the internet and social media platforms.
At the end of the hearing, Mr Justice Poole said he would approve the order sought, and extend the authorisation of NA’s deprivation of liberty. This order covers a list of restrictions, including support by care staff at a ratio of 6:1 (“the highest I’ve so far encountered”), as well as “removal of items which could be used by NA to hurt herself, and extensive other restrictions”. He approved the order because he was satisfied that “if not so restricted she would be at risk of serious harm”.
The hearing on 14th December 2021, before Mr Justice Poole
There was still no progress on where NA should live, and no news about the criminal proceedings against her, which had been adjourned until 21 December 2021.
The local authority (represented by Lucy Leeming) said that the “deeply regrettable position” was that the hoped-for placement was no longer available. The preferred placement had withdrawn its offer of accommodation for NA on the grounds that it would be a 5-month process for staff to be protected against Hepatitis B. Given that the local authority had been “absolutely frank” with the placement about NA’s behaviour and medical diagnosis from the outset, it was “with a great deal of dismay that I inform the court that we came so far along the process, only for the offer to be removed”. One of the other options that had been explored was also no longer available due to “concern from the landlord about a resident in the neighbouring flat who is elderly and vulnerable”.
Counsel for the local authority reported that the expert report from Dr Camden-Smith, Consultant Psychiatrist, has now been received. Dr Camden-Smith has confirmed that NA is autistic and has a learning disability and complex Post Traumatic Stress Disorder, or Developmental Trauma Disorder – all of which are disorders or impairments in the function of the mind or brain, for the purpose of the Mental Capacity Act 2005. (The expert did not find that NA suffers from a psychotic disorder, as suspected by current care providers.).
It was reported that Dr Camden-Smith concludes that NA lacks capacity to conduct litigation, and to make decisions in respect of residence, care and treatment – including medication and consenting to or refusing COVID vaccination. She does not, however, consider it to be in NA’s best interests for the vaccine to be administered against NA’s wishes, due to the likelihood of NA finding the experience highly distressing and the likely need for high levels of restraint in order to administer the vaccine. (If the court accepts this conclusion, it will be only the second case I have seen in which COVID vaccination was not considered to be in a protected party’s best interests.)
What counsel for the local authority found “most troubling” was Dr Camden-Smith’s conclusion that due to the very high level of risk that NA poses, “NA may not be safe in the community, full stop, and that she needs admission to a Medium Secure Unit in a hospital”.
Even if the parties and court accept this conclusion, the options for such an admission are very limited. Of the two women’s Medium Secure Units for those with learning disability, one is closed for admissions due to an inadequate CQC rating, and the other is hundreds of miles from the family home and is over-subscribed. As a result, NA would likely be admitted to a generic Medium Secure Unit (rather than one specifically for autistic women) – and the evidence is that autistic women in these units do very badly and many are discharged with higher levels of self-harm than when they were admitted. Nonetheless, counsel for the local authority acknowledged that a benefit of such a placement would be that NA has suffered significant social isolation at her current placement and an admission to a hospital would provide NA with a safe environment in which to form relationships with peers.
Counsel for the local authority also drew attention to the fact that Dr Camden-Smith’s report emphasised the critical involvement of the Special Support Team and the need for them to work collaboratively with NA’s carers to develop and implement a Positive Behaviour Support plan.
Counsel for NA via the Official Solicitor (Arianna Kelly) said there were some concerns about Dr Camden-Smith’s findings (“some of which contradict each other”), including what I understood to have been Dr Camden-Smith’s suggestion “that there might be potential benefits to NA of entering the prison system”. This, said counsel, would be “an incredibly damaging and harmful environment for NA and one that we have been trying to avoid for her”. A pre-trial hearing concerning the criminal charges against NA is coming up shortly and the Crown Prosecution Service are still deciding on the charges. Counsel expressed concern that the “real focus of this case” should now be on the fact that NA is “fast turning 18”, and from age 18 she can no longer stay in the annex to the children’s home where she has been detained for the past five months. “It is utterly imperative that clear plans are in place for after her 18th birthday”.
Counsel for NA’s mother (represented by Mungo Wenban-Smith) raised questions about contact, saying that NA wanted contact with her mother and other members of her family before Christmas. The mother’s main concern in terms of the broad direction of travel of the case was about placements a long way from the family home which would make contact difficult.
Judge’s questions and ex tempore judgment
The judge was clearly concerned about what was (and wasn’t) happening in this case.
He referred to an earlier “cri de coeur” from the local authority to escalate the case to the Children’s Commissioner back in September (I didn’t attend a September hearing and am not sure what this referred to). He asked “Was that done?” Counsel for the local authority said it had not been done: “Learned judges did express their dismay as to the situation, but nothing further happened”.
“It’s been 5 months now – forgive my pessimism that we may be in the same situation in February at the next hearing”, replied the judge. He suggested informing the Secretary of State for Education.
“The local authority has long said it’s crying out for help….Every possible route to finding a solution for this young and incredibly vulnerable woman is needed”, said counsel for the local authority.
The judge asked how much it was costing to keep NA in her current, unsuitable, accommodation and was told it currently costs £60,000 per week, which counsel for the local authority described as “a staggering cost which has come about through there being a complete lack of alternative resources”.
The judge then gave a brief oral judgment.
He authorised the continuing deprivation of NA’s liberty in the (unsuitable) placement where she’s been for more than 5 months. This was not a case, said the judge, where he was “so perturbed by the current placement that I’d consider not authorising her placement there. It has provided a degree of stability”.
He did however feel that the toll on the care staff and the social worker was “beyond that which they should reasonably be expected to bear” and wanted “publicly and sincerely to thank them for all that they’ve done and continue to do for NA”.
The judge also made a “respectful request” for information and documents from the overseas country where NA grew up in the hope that these might assist mental health professionals in understanding and treating NA.
The local authority had, he said, “… invited the Court to escalate the matter to the Department of Education and the Children’s Commissioner. This case is reflective of a national crisis. Support from central government is needed. As far as I’m aware, neither were informed or provided with information. It seems to me that now that should happen”.
He gave permission for relevant case papers to be disclosed to NHS England and to the Secretary of State for Education “with a view they each are invited to provide information and witness statements to the Court”.
The next hearing will be held (remotely) on 24th February 2022.
Celia Kitzinger is co-director (with Gill Loomes-Quinn) of the Open Justice Court of Protection Project. She tweets @KitzingerCelia