Re C (Detention for Medical Treatment)
| Jurisdiction | England & Wales |
| Judgment Date | 1997 |
| Date | 1997 |
| Court | Family Division |
WALL, J
Child – girl of 16 suffering from anorexia nervosa – admitted to specialist clinic – refusing treatment and discharging herself – local authority given leave to invoke inherent jurisdiction – powers of court – how court should exercise the jurisdiction.
The child was born in 1980. She was the second of five children of an intelligent but very dysfunctional family. Social services had been involved with the family since 1982. The child suffered from anorexia nervosa. Her anorexia began in 1994. In July 1995 she was for the first time admitted to a private hospital specializing in eating disorders and run on boarding school lines ("the clinic"). In January 1996 she was discharged to her grandmother against medical advice and readmitted in April having lost 5 kgs in weight. After several further incidents of discharge, running away and readmission she was returned to the clinic by her parents on 9 December 1996, two weeks after her 16th birthday. She was emaciated, cold and at risk of collapse if not fed. The clinic at that point did not consider it appropriate to readmit the child without an order of the court. The local authority were anxious to continue to work with the child and her family and for this reason did not wish to apply for a care order. They therefore applied for and had been given leave under s 10O of the Children Act 1989 to invoke the court's inherent jurisdiction as parens patriae for an order to detain the child at or return her to the clinic without her consent and to give her medical treatment without her consent pending the present full hearing at which the Official Solicitor might act as amicus curiae.
Held – (1) The court had power to exercise the inherent jurisdiction to order the detention of a child over 16 for the purpose of treatment: Re W (A Minor) (Medical Treatment: Court's Jurisdiction)[1992] 2 FCR 785. Further, the court had power at common law to authorize the use of reasonable force as a necessary incident of treatment: see Norfolk and Norwich Healthcare NHS Trust v W[1997] 1 FCR 269 and Rochdale Healthcare NHS Trust v C[1997] 1 FCR 274.
(2) The welfare of the child was the court's paramount consideration. In the instant case it was in the child's best interests to be treated in the clinic and the treatment offered by the clinic was appropriate to her needs. The order sought by the local authority was in her best interests. Nevertheless, an order for the detention of a 16-year-old child against her will was a Draconian remedy. Although the powers of the court as parens patriae were theoretically limitless: see Re W (above), there were recognized boundaries beyond which the parens patriae jurisdiction would not be exercised, such as cases where, either because of the child's status or because of the subject-matter of the dispute: see Re Mohamed Arif
[1968] Ch 643 and A v Liverpool City Council [1982] AC 363. In this case the local authority, for perfectly proper reasons, did not wish to institute care proceedings. By the grant of leave under s 100 of the Children Act 1989 for the local authority to make application for the exercise of the court's inherent jurisdiction, a likelihood of significant harm had only been deemed to have been established on a prima facie basis. Nor had the threshold conditions been seen to be satisfied. Consequently, any order under the inherent jurisdiction in the present case should be time-limited and include stringent safeguards to protect the interests of the child.
(3) The clinic was not "secure accommodation" within the meaning of s 25 of the Children Act 1989 as it was not "accommodation provided for the purpose of restraining liberty". The primary purpose of placement of the child in the clinic was to achieve treatment: the accommodation provided a structure for that treatment. The fact that the child might be persuaded from leaving the premises did not of itself render the clinic "secure accommodation". However, in exercising the inherent jurisdiction it was important to have regard to the statutory scheme relating to "secure accommodation" as set out in s 25 of the 1989 Act, r 5.5 of the Family Proceedings Rules 1991, and regs 11 and 12 of the Children (Secure Accommodation) Regulations 1991. In this case the child had a history of absconding and if she absconded from the clinic was likely to suffer significant harm: this met the criteria of s 25(1) of the 1989 Act; the child was a party as was required by r 5.5 of the 1991 Rules, and a time-limit, subject to further extension, authorizing that the child be kept in the clinic would be set and this would meet the requirements of the 1991 Regulations.
(4) The inherent jurisdiction had to be exercised in the child's best interests. In deciding what was in her best interests her wishes and feelings were to be considered though the court could override her wishes if what she wanted was not in her best interests. It was relevant, though not decisive, to consider whether the child had the capacity to give or refuse consent to treatment. This capacity involved (i) comprehending and retaining treatment information, (ii) believing it, and (iii) weighing it in the balance to arrive at a choice. In this case the psychiatric evidence showed that the child was unable to weigh treatment information, balancing risks and needs, and accordingly was not able to give a valid consent to or refusal of treatment. Treatment in the clinic was in the best interests of the child. An order of the court was necessary if her treatment was to be maintained.
(5) The court did not have power to compel a local authority to apply for a care order: see Nottinghamshire County Council v P[1994] 1 FCR 624. Nor did it have power to compel the child to be admitted to hospital under the Mental Health Act 1983. While consideration should always be given to alternative routes, particularly at the stage at which leave to invoke the inherent jurisdiction under s 100 was being sought, if the court was satisfied that no statutory scheme was available it should not hesitate to use its powers under the inherent jurisdiction. A child might otherwise fall between several statutory stools and not receive the treatment needed.
Per curiam: The court regarded the presence of the minor in the unit and her adherence to its regime as integral to her treatment; it followed that it had power to authorize the use of reasonable force to detain and feed her. However, the court did not contemplate making such an order in this case since forcible feeding was antipathetic to the ethos of the clinic and no order in those terms was sought.
Statutory provisions referred to:Children Act 1989, ss 22(1), 25, 31 and 100.
Family Law Reform Act 1969, s 8.
Mental Health Act 1983, ss 3 and 5.
Children (Secure Accommodation) Regulations 1991, regs 2, 7, 11 and 12.
Children (Secure Accommodation) (No 2) Regulations 1991, reg 2.
Family Proceedings Rules 1991, r 5.5.
Cases referred to in judgment:A v Liverpool City Council [1982] AC 363; [1981] 2 WLR 948; [1991] 2 All ER 385.
Arif (Mohamed) (An Infant), Re [1968] Ch 643; [1986] 2 WLR 1290; sub nom Re A (An Infant), Hanif v Secretary of State for Home Affairs [1968] 2 All ER 145.
B (A Minor) (Treatment and Secure Accommodation), Re[1997] 1 FCR 618.
C (Adult: Refusal of Treatment), Re[1994] 2 FCR 151; [1994] 1 WLR 290; [1994] 1 All ER 819.
Norfolk and Norwich Healthcare NHS Trust v W[1997] 1 FCR 269.
Nottinghamshire County Council v P[1994] 1 FCR 624; [1994] Fam 18; [1993] 3 WLR 637; [1993] 3 All ER 815.
R v Northampton Juvenile Court, ex parte London Borough of Hammersmith and Fulham [1985] FLR 193.
Rochdale Healthcare NHS Trust v C[1997] 1 FCR 274.
South Glamorgan County Council v B[1993] 1 FCR 626.
Tameside and Glossop Acute Services Trust v CH[1996] 1 FCR 753.
W (A Minor) (Medical Treatment: Court's Jurisdiction), Re[1992] 2 FCR 785; [1993] Fam 64; [1992] 3 WLR 758; [1992] 4 All ER 627.
Alison Ball, QC for the local authority.
Roderick Wood, QC for the child.
David Turner for the parents.
James Munby, QC as amicus curiae.
MR JUSTICE WALL.The first defendant in these proceedings (C) was born on 23 November 1980 and is therefore 16. She suffers from anorexia nervosa. She is currently being treated at a private hospital specializing in the treatment of eating disorders in young people (the clinic). Her treatment at the clinic is being funded by the local area health authority. The clinic is run very much on boarding school lines, and employs four full-time teachers. C is on a "re-feeding programme" and is also in receipt of individual and family psychotherapy.
C is underweight. However, Dr D, the medical director of the clinic, told me that provided C remains at the clinic and continues to eat, she will achieve her target weight by 5 March 1997. Dr D initially said that if C achieved her target weight by that date, the clinic would consider discharging her a fortnight later on 19 March. For reasons which will emerge later, Dr D has since changed her mind. She is now much more cautious. She says that C's case will need to be reviewed in March and a decision taken, depending on C's behaviour and her response to psychotherapy. Dr D regards the maintenance over time of C's target weight as an essential part of the treatment.
Dr D also regards C's enforced presence in the clinic under an order of the court as an essential component of her treatment. The simple proposition she advances is that if C is not in the clinic she will not eat. Dr D now says in terms that without an order of the court she is not prepared to permit C to remain in the clinic on the clinic's treatment programme.
C disputes the need for an order. She says in her affidavit in the proceedings that she is in agreement with the treatment she is receiving and is content to stay in the clinic on a voluntary basis until such time as she can be properly discharged.
C's parents are parties to the current proceedings...
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