Is she detainable under s.3 Mental Health Act? Two Trusts disagree and a placement is in jeopardy

By Celia Kitzinger, 13 February 2023

The teenager at the centre of this case had a traumatic childhood, involving neglect and abuse. She has “suicidal ideation” and a history of harming herself and other people. 

Until recently (for the last year or so) she was living in a secure children’s home.  Counsel for the ICB (Integrated Health Board), David Lawson) said there were “difficulties in providing care and involvement in the criminal justice system”.  It also appears that she was restrained for lengthy periods – sometimes hours.  

On her eighteenth birthday (when she would have had to leave the children’s home), she was detained in hospital under s.2 Mental Health Act [MHA] 1983 but then self-discharged on 11 January 2023, after being assessed to have capacity to make this decision herself.  She left, only to be returned by the police the next day under s.136 [MHA] 1983.  Another assessment found that she did not meet the criteria for detention, following which she left the placement again, was picked up by the police, and spent the night in custody.  She was then re-admitted under s.2 MHA 1983 – and that detention expires on Monday 13 February 2023.  The hospital is very clear that she does not meet the criteria for detention under  s.3 MHA, and will not make an application for this.

The case is in the Court of Protection because there is reason to believe that she lacks capacity under the Mental Capacity Act 2005 to make her own decisions about where she lives and the care she receives.

When I logged on to the video-link to observe this hearing (COP 14036761, before Mrs Justice Theis, 10^thFebruary 2023), I knew that a placement was urgently needed for after the weekend, and I expected to hear that it was all sorted.  I’d attended an earlier hearing in this case just last week and blogged about it here: “Approving discharge arrangements”), At that stage, just a few days ago, everyone was optimistic that there was a placement for her, and it was just a question of making final arrangements. It even seemed possible that the hearing would be vacated, if the parties could agree everything between themselves.

So I was surprised and saddened to find that everything had fallen apart in the last 24 hours.  

The hearing

The parties to this case are now:

• the applicant local authority, represented by David Lawson, of Serjeants’ Inn Chambers
• the young woman herself, represented via her litigation friend, the Official Solicitor (Benjamin Harrison, also of Serjeants’ Inn Chambers) 
• the Trust of the hospital where she is currently detained (Avril Rushe of No. 5 Barristers Chambers), and which proposes to discharge her (“the discharging Trust”)
• the receiving Trust which would be responsible for providing care when she moves to the new placement (represented by Olivia Kirkbride) (“the receiving Trust”)

The key difficulty that has arisen is with the provision of therapeutic care.  

The discharging Trust says that the criteria for detention under s. 3 MHA are not met and that continuing to detain the patient is causing her harm.  The receiving Trust says that those criteria are met and that discharging her into the community will cause harm. This difference of opinion only became clear in a meeting the day before the hearing.  This is, as counsel for the young woman at the centre of the case said, “very regrettable”, not least because she’s been given “mixed messages” about whether and when she will move out of the hospital.  The procedures followed (he said) are “not in line with NICE Guidance”.  If it had been clear last week that the receiving Trust was not going to provide therapy, then the hearing last week would have followed a very different course.  The judge has asked for a submission on how this situation has come about, and what can be done to make sure it doesn’t happen again.

The psychiatrist from the receiving Trust has reviewed the papers and reached the clear view that in her opinion this patient is detainable under s.3 MHA and that there’s a need of intensive therapeutic support that can’t be provided in the community.  The treatment needed, says the psychiatrist, can only be provided on an in-patient basis: what’s needed is a s.3 order and a placement with in-house support, i.e. transfer rather than discharge.  There are no services that the receiving Trust can or will offer in the community.  In their view, they cannot keep this young woman safe in the community.  

The discharging Trust had spent some time looking for other last-minute placements.  None were immediately available. Of those approached, some had already said no – concerned about the “aggression” (their word) and their ability to manage that.

The ICB was now asking for an order that, if discharged from detention under s.2 MHA 2005, the young woman will remain in the same placement (for the time being) detained under the Mental Capacity Act 2005.

The discharging Trust supported this position and said that since the receiving Trust was unable to provide care in the community, they would provide this care themselves via a community bespoke package (involving a specialist life-skills pathway and Dialectical Behavioural Therapy which, according to one doctor, she “absolutely requires”).  They need some time to put this package together, but hope to have it ready in a couple of weeks.

The receiving Trust reiterated that they cannot provide services that would meet this young woman’s needs (“so it would be an unsafe discharge”).  They have therefore declined the referral.  They are not accepting automatic transfer of this patient in six months’ time, but will assess, at that point, whether her needs can be safely met by their team.

The judge adjourned for two hours to allow the parties time to consult on, and rework, the draft Order they wanted her to approve.  I wasn’t able to rejoin in the afternoon, but I understand that the order remained in broadly the same form as was being fleshed out all morning.  The patient will remain in hospital upon the expiry of her s.2 detention on Monday 13^th February and her ongoing detention will be authorised by the Court of Protection under the Mental Capacity Act 2005, while plans are put in place to secure therapy for her in the community.

The judge will hear the case again at 10.30am on 6^th March 2023 (for half a day), when the court will consider any updated plan for a return to the community.

Celia Kitzinger is co-director of the Open Justice Court of Protection Project.  She has personally observed more than 390 hearings since 1^st May 2020.  She tweets @KitzingerCelia