Children in Crisis: Legal considerations for care in a paediatric setting

It’s a new year, though for many in the health and social caring professions it seems no less likely to herald difficult dilemma’s regarding the treatment of children who feel compelled to harm themselves and end up in a paediatric setting, than the year before. In our advisory health and social care practices, this has primarily played out in the context of children and young people detained, (either under the Mental Health Act 1983 (MHA) or via the inherent jurisdiction of the High Court), on paediatric wards whilst an alternative community or inpatient placement is sought.

This situation is difficult for all and can introduce division between families, local authorities commissioning care, acute hospital Trust’s on whose paediatric ward the patient is being looked after, and practitioners from the mental health Trust particularly around whether the child meets the criteria for inpatient psychiatric admission.

These questions, (particularly detention under the MHA), can turn upon the question of what ‘treatment’ the child is receiving, noting that a criterion for s3 MHA detention is that ‘appropriate medical treatment’ must be available.

Over the last year these tensions have also been playing out in the courts, and we will seek to explore and apply some of the principles arising from two such cases last year, with the usual health warning that this is not intended to be a complete statement of the law and is no substitute for specific legal advice.

The [mental health] tribunal view - SF v Avon and Wiltshire Mental Health Trust [2023] UKUT 205 (AAC)

This was an appeal to the Upper Tribunal (UT) against the First-tier Tribunal’s (FTT) judgement that 1:1 observation and restraint to prevent the patient from the effects of their propensity to self-harm did constitute ‘appropriate medical treatment’ under the MHA. For reference, the MHA statutory definition of medical treatment is wide and ‘includes nursing, psychological intervention and specialist mental health habilitation, rehabilitation and care…the purpose of which is to alleviate or prevent a worsening of the disorder or one of more of its symptoms or manifestations’ (s.145 MHA).

Whilst this case related to an adult, the MHA principles apply equally to children. The patient in this case had a diagnosis of Autistic Spectrum Disorder (ASD) and Complex Post Traumatic Stress Disorder (CPTSD). The treating psychiatrist noted that the primary treatment was ‘psychosocial support’ though this was not available on the ward. In addition to other forms of support with anxiety, depression and rigid thinking, the patient was nursed on constant 1:1 observations ‘to reduce the risk of deliberate self-harm/death’ and discharge planning was underway, although hindered by a lack of engagement on the part of the patient, meaning there was no safe package of care in the community.

The FTT took the view that the lack of any safe alternative, and the need to stop the patient killing or seriously injuring themselves, did amount to appropriate treatment finding that ‘the benefit of the inpatient treatment was to keep [the patient] physically well, safe and protect those seeking to care for her’, and ‘did offer therapeutic benefit in the short term’, notwithstanding the fact that the necessary ‘psychosocial treatment’ was not available on the ward.

In giving judgement the UT acknowledged that restraint can form a legitimate part of a treatment plan, but that did not necessarily mean it fell within the definition of ‘medical treatment’ in the MHA sense, finding that ‘[t]o do so it must have the purpose (at a minimum) of preventing a worsening of a relevant symptom or manifestation (in this case [the patient’s] urge to harm herself or others)’ and that ‘in the case of a neurodiverse patient…such an outcome does not seem likely…such an intervention is likely to exacerbate a neurodiverse patient’s frustration and need for control and to increase their anxiety.’

The evidential basis of the UT’s finding above that supervision to prevent a vulnerable, mentally unwell patient from inflicting harm upon themselves is counter-productive, is not clear from the judgement. But having made a determination that care of this sort is of no therapeutic benefit, the UT goes on to determine that it cannot therefore constitute appropriate medical treatment for MHA purposes, noting ‘where the only treatment available is provided for the purpose of maintaining physical safety, without treating the mental disorder itself, would be to frustrate parliament’s statutory purpose’.

The judge also goes onto indicate that discharge planning did not constitute treatment, stating that ‘if discharge planning had reached a stasis, then it is difficult to see how it can be said to have been ‘available’.’

What can be drawn from this?

Whether the underlying premise that detaining a person to reduce the chances of their inflicting harm on themselves is counter therapeutic, (with or without anything further), is correct is a matter for clinical debate, but there is a concern that the UT analysis has become too reductionist, ignoring the arguably important therapeutic effect of keeping somebody at risk of death from their condition alive, which in any other health setting, (save in cases of complete futility – not so here), would probably be regarded as a success. The judge in this case has reason to think observation and intervention has a negative effect on the patient, though having worked with mental health providers over many years, it may be said that nursing staff, (as well as providing an observational and interventional safety net), will often have training around therapeutic approaches to patients, will have an important role in trying to understand and help the patient with their problems, and liaise with those responsible for community provision in trying to understand and resolve environmental contributors to the development of the problems with a view to discharge. As such, the judge’s conclusion that treatment was out with that permissible to warrant MHA detention should not be taken at face value, as it could be wrong and will remain a matter for clinical judgement in any given situation.

The MHA is clear that the minimum threshold to qualify for appropriate medical treatment is to prevent a worsening of a patient’s symptoms. It would seem arguable that a care plan designed to prevent a person affected by mental disorder with an associated and uncontrollable impulse to do themselves harm would at the very least fit the criteria for care preventing a worsening of that symptom, i.e. stopping an impulse to cause harm from resulting in actual harm.

This judgement needs to be approached cautiously by those providing care under the MHA. The first reading of this may lend itself towards the view that there is no lawful basis for detaining such a patient, with the risk that they may come to be released in unsafe circumstances. Dealing as we do with inquests and related criminal/regulatory prosecutions, it appears at least arguable that release in these circumstances, (followed by a foreseeable patient death), could breach the right to life afforded protection by virtue of the Human Rights Act and may form the basis of a gross breach of duty with potential criminal implications.

Whilst unmentioned in this judgement, it has long been recognised in mental health law, (see Nottinghamshire Healthcare NHS Trust v RC [2014] EWHC 1317 (CoP)), that the treatment of the physical consequences of mental disorder, such as the propensity to harm and the effects thereafter, falls within the definition of medical treatment, including 1:1 observations. The issue here for clinicians is perspective. Clinicians will often feel frustrated that a patient remains on the ward awaiting some form of community provision, and may start to talk about treatment as inappropriate or without benefit, but it is often the case that there is no safe alternative or ability to safely release the patient without them coming to harm until the package is in place. As such, inpatient admission, where the patient does not or cannot consent, will arguably continue to remain appropriate.

So what does this mean for children on paediatric wards with a compulsion to self-harm and are they detainable?

This was considered by the High Court in Lancashire County Council v X [2023] EWHC 2667 (fam), regarding a 15 year old on 4:1 supervision to mitigate against serious attempts to self-harm, with a diagnosis of ADHD. The judge, having recited a list of serious attempts episodes of self-harm, noted the MHA assessment which had concluded the child was not detainable, and remarked that ‘what in older people would be described as the manifestations of a mental disorder are taken to be “behavioural” and therefore, it seems, not appropriate for treatment under section in a psychiatric hospital’.

During the multiple hearings over a short period the judge ordered psychiatric professionals to appear to explain, and they said that ‘there were no obvious signs of a diagnosable mental health condition that would warrant admission’, that the behaviour was a response to trauma and adverse childhood experience, and that ‘she would require longer term therapeutic work in collaboration with a contained and varying environment’. The judge was concerned by this, noting the absence of local authority commissioned secure children’s care, (citing 7 beds being available nationally as of October 2023), stating ‘I remain troubled that this young women….is not detainable’.

In contrast to the SF judgement above, the judge in this case said ‘treatment in hospital is not necessary if (but only if) there is suitable care available outside Hospital. If that placement is not available within a reasonable timescale, then treatment in hospital is surely necessary’.

In this case and these comments notwithstanding, noting that the court could not force the hand of MHA decision makers, (save perhaps through judicial review), the judge went on to exercise his power under the inherent jurisdiction of the High Court to authorise the paediatric hospital placement.

What can we take away from these competing judicial positions?

The contrasting judicial approach tells us that there are no wrong or right answers on the subject of MHA detention in these difficult situations, and each case will turn ultimately on the specific facts and clinical judgement.

Whilst it is right to say that if the treatment genuinely made a patient worse the appropriate medical treatment criteria justifying detention under the MHA would not be met, it should not be inferred from the SF judgement that observation and intervention to prevent harm cannot constitute appropriate medical treatment under the MHA. This will be a clinical judgement based upon whether the measure is a necessary and proportionate step in either stopping the condition from getting worse or making it better, noting there is good reason to think that taking steps to keep a patient at risk of death alive so that steps can be undertaken to address the cause of the condition, would constitute appropriate medical treatment.

Equally, a clinical team may quite reasonably conclude that psychiatric admission of a child with high levels of observation and restraint may not constitute appropriate medical treatment for MHA purposes, but that does not mean the observation and restraint would not remain essential, (at least until the underlying causes can be better understood and addressed), just that it would need to be authorised by either parental consent or more likely the High Court.

Mental health teams and decision makers must act in accordance with their professional duties, and where there is a decision to detain or not detain, rational and reasonable reasons must be given. Such decisions will, where practicable, need be taken in consultation with all involved, with fair warning of any decisions to detain or discharge.

Where the MHA is not likely to apply advice should be sought as soon as possible upon lawful basis of any continuing care, noting, where it falls out with the zone of parental control and consent, it can be authorised by the High Court or Court of Protection in the alternative.