England and Wales Family Court Decisions (other Judges)

IMPORTANT NOTICE

 

 

 

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

LEEDS DISTRICT REGISTRY

 

 

CASE NO LS17C00361

Leeds Civil Hearing Centre

Coverdale House

Leeds

8 February 2018

 

Before:

RECORDER DARREN HOWE QC

Sitting as a Judge of the High Court

 

BETWEEN

A LOCAL AUTHORITY

Applicant

and

 

M

1^st Respondent

and

 

T

(By his Children’s Guardian)

 

2^nd Respondent

 

 

Ms Lisa McCormick (instructed by the Local Authority Legal Department) appeared on behalf of the Applicant.

Ms Philippa Wordsworth (instructed by Sugaré & Co) appeared on behalf of the Mother.

Mr Richard Howard (of Graham Stowe Bateson) appeared on behalf of the Child.

 

 

 

Re T (A Child: Care Order: Beyond Parental Control: Deprivation of Liberty: Authority to Administer Medication) (No 2)

 

Judgment

 

 

The Parties and the Applications to be Determined

1.      In these proceedings I am again concerned with the welfare of one child, who I shall refer to as T. T is 13 years old and currently resides in a specialist residential unit, X unit, and is the subject of an interim care order.

3.      Within the judgment, I set out my reasons for concluding that it was necessary for the Local Authority to seek the approval of the Court, under the Inherent Jurisdiction, for the administration of certain drugs to T to commence; an administration that was opposed by T’s mother, who I shall refer to as M.

4.      I also declined M’s application to make certain declarations concerning T’s contact with her and declarations concerning time T may spend outside of X unit. I refused those applications on the basis that the matters should be addressed within T’s care plan. The social worker [SW] gave assurances in her oral evidence that the care plan could be amended to reflect the concerns of the court, concerns that were shared by both SW and by T’s Children’s Guardian [CG]. Following the conclusion of the evidence and the receipt of submissions, the Local Authority filed and served a statement from SW and a document from X unit giving reasons why T could not spend time beyond the confines of the grounds of X unit, either with or without M, save for trips out in a car during which T is not permitted to leave the vehicle. I indicated on 5^th January that these documents raised no new material and I found the change of position by SW, as set out in the new statement, to be unpersuasive. I further indicated that, if the care plan was not to be amended, I retained jurisdiction under section 34 Children Act 1989 to make an order for contact and would consider any applications, that M might make, on 8^th February 2017.

5.      As there was no amendment to the Local Authority’s care plan I did not, on 5^th January, make a final care order or any final orders, save for an order under the inherent jurisdiction authorizing the local authority to deprive T of his liberty at X unit. I adjourned consideration of the review process for that authorization until 8 February 2018.

6.      The local authority has now filed an amended care plan that meets the terms of indications I gave on 5 January. Its content is agreed by the Guardian but not expressly agreed by M.

7.      M has not attended this hearing. She has not attended for contact with T since she received my decision on 5 January 2018, despite being advised by the local authority that T is asking for her. She has given instructions to her legal representatives that she is too distressed to have contact with T at this time. A position statement was filed on behalf of M confirming that she remains opposed to risperidone and melatonin being administered to T. M has not given instructions on the amended terms of the care plan.

8.      I set out, in my judgment of 5 January 2018, my reasons for concluding that it was necessary to make a care order concerning T. I have carefully considered the terms of the amended care plan and am satisfied that the new provisions appropriately recognize T‘s need to have time away from X unit and enjoying resources available in the community. I therefore approve the care plan and make a final care order

9.      The remaining issues for the court to determine are as follows:

 

(a)   Whether a declaration should be made that it is in T’s best interests for him to receive the drugs risperidone and Melatonin; and

(b)  What should be the review process for the DOL authorization granted on 5^th January 2018.

 

 

Is it in T’s best interests for him to receive the drugs Risperidone and Melatonin?

 

The Evidence

 

10.  At §150 of my previous judgment, I summarise the expert evidence received from Dr Singh concerning the risks and benefits of the use of risperidone and melatonin. Dr Singh was unable to assist the court as to whether it was in T’s best interests to receive either drug as, in his opinion, that recommendation could only be made by a psychiatrist who had clinical responsibility for T’s care.

11.  That psychiatrist is Dr B. I have received a detailed written report from Dr B and heard his oral evidence on 8^th February. In his report, Dr B says the following:

(i)                “T displays a number of challenging behaviour. He often tries to abscond. He shreds his clothes, beddings and mum's clothes. He goes through stages of different behaviour for example during the summer months he self-induced vomiting. He also picks his hair out of his head leaving a large patch on his head. T smears faeces including putting it in his mouth. He also pick at the wall creating large holes in the walls. T requires an extremely high level of supervision at all times. He damages property often and puts himself at risk when damaging property”.

(ii)              “T has had involvement from CAMHS especially regarding his sleep pattern and behaviour. His CAMHS worker took a sleep routine and behavioural analysis. She indicated that the lack of sleep is impacting on T's concentration and resulting in him displaying these challenging behaviour, therefore addressing his sleep routine may be the key to solving the challenging”.

(iii)            “T has exhibited heightened state of anxiety since his placement at X unit. His presentation may be different in education and residential areas of the unit but essentially driven by similar state of anxiety. T would regularly shred his clothes up to 3-5 times daily.  He would typically shred his clothes as soon as he returns from school and prefers to be naked or have a piece of blanket covering him.  He would also shred blankets, duvets, pillows and mattresses. He would then post these items through the window.  There has been nights that he has shredded 6 duvets. Any gap or loose thread on a piece of clothing results in the clothing being shredded.  He was provided with a thick army blanket thought to be robust enough and anti-tear but he managed to shred this. He also manages to do this occasionally with his teeth. He has now been provided with a mattress used in prison, which has been bolted down into his bed base. So far this measure has stopped the shredding of his mattress”.

(iv)            “T has become obsessed and fixated on property damage.  He would want the doors shut at times and at other times opened.  He has pulled off 2 doors from the frames and damaged door handles.  He pulled the skirting off the wall and pulled the floorboards out. His floor had to be converted to ceramic flooring.  He has pulled off the air vent and managed to take the electric socket off the wall.  He picks around the window ledge until it becomes loose.  He has also broken window handles off the window. He has pulled out plaster from the wall leaving several patches of holes in the wall.  He manages to use a metal spoon at times to cause environmental damage”.

(v)              “T smears faeces up to 3 times a day.  The frequency of this has increased in the last 3 weeks.  He is not settling down at night and has a poor sleep pattern. He has not slept before 12 midnight since his placement. Typically, he will be awake until 4am and not able to achieve more that 3-4 hours of sleep on a typical night.  He is unsettled throughout the night. When he wakes, he may ask for a biscuit and then begin to smear faeces.  He cannot tolerate curtains in his flat.  He likes to walk around naked and walks around without shoes.  As a result his feet can be sore.  He has access to his bathroom at all times”.

(vi)            “T becomes aggressive to staff when demands are placed on him or when attempts are made to redirect him from his obsessions.  He often cannot tolerate staff in his flat.  He would push them and wave 'bye' to them. During periods of heightened anxiety he would kick, bite, pull their hair, spit at them, cry loudly and attempt to shred their clothes off”.

(vii)          “He has robust psychosocial intervention strategies in place including behavioural management strategies, sensory integration strategies, sleep hygiene strategies, communication strategies and education intervention plan which have thus far not ameliorated his challenging behaviour”.

 

 

12.  It is Dr B’s opinion that “T should be afforded the opportunity for a trial of pharmacological intervention as part of his whole management plan”. In his report he describes melatonin as a naturally occurring hormone involved in regulating the body clock and sleeping pattern. He says that side effects are uncommon but can include headache, hyperactivity, abdominal pain abnormal dreams, anxiety, chest pain and dizziness. However, he advises that clinical experience suggests that melatonin can be of value in treating sleep disorder in children with conditions such as autism. He recommends that, if administered, T’s sleeping pattern be monitored to assess the effectiveness of melatonin but he cautions that “It is difficult to ascertain if indeed T will respond to Melatonin or a different type of hypnotic.  Occasionally a trial of different medication either alone or in combination is required to achieve the desired outcome. It is established that T's poor sleep pattern has a knock on effect on his presentation during the day”.

13.  Dr B’s proposals for monitoring the effectiveness of the melatonin are for T to remain on a sleep chart for the pattern of his sleep to be monitored. He says in his report that T’s response to treatment, and any side effects, will be monitored regularly under his supervision by the monthly reviews he intends to hold and by regular discussions with the clinical staff.

14.  When considering the administration of risperidone, Dr B gives his reasons for recommending its use as follows:

(i)                T suffers from anxiety associated with autism.

(ii)              the nature and severity of his challenging behaviour is predominately driven by anxiety.

(iii)            it is the hope that, by reducing his constant level of anxiety, other aspects of his behaviour will improve accordingly.

(iv)            his anxiety needs to be reduced in order for T to be able to engage with psychosocial strategies to improve his quality of life.

(v)              risperidone is prescribed to address the anxiety that leads to aggression associated with autism.

(vi)            the use of a risperidone will be extremely helpful in ameliorating the anxiety leading to  the aggression associated with T's  autism.

(vii)          the effect of this medication can be described as a 'life changer' in children who respond positively to it.

 

15.  Dr B describes in his report that the potential side effects can include agitation, drowsiness, increased appetite and weight gain, tremors and an increased prolactin level (a hormone produced in the pituitary gland that is important in men and women for reproductive health but primarily associated with helping women produce milk after child birth). Raised prolactin levels can have the long-term consequence of causing brittle bones and this side effect needs to be carefully monitored; something Dr B states that he undertakes in his everyday practice.

16.  It is Dr B’s plan to start T on the lowest effective dose and then monitor the side effects and take routine blood tests to monitor prolactin levels. His report states that the effect of the medication will be reviewed after 3 to 4 weeks, in line with NICE guidelines. The monitoring of any side effects will be undertaken by way of the Liverpool University Side Effect Rating Scale [LUNSERS), a tool that can be used by the staff at X unit and Dr B will review T each month.

17.  Dr Bwas asked to consider the effect on T of melatonin and risperidone in combination. In his report he says “Concurrent use of Risperidone and Melatonin can increase the central nervous system depressant effects which might affect the ability to perform skilled tasks and driving. It is hoped that the sedative effect of these medications in combination will occur at night and help in improving his sleep pattern. There is no expectation that T will be performing any skilled tasks but it will be important that any sedative effect from the medications are monitored closely and its impact on his day time activities is limited to the barest minimum”.

18.  Dr B reviewed T on 22 January 2018 and reports that T’s presentation has not improved since he first recommended the use of these medications back in August 2017. Dr B also had the opportunity, on 22 January 2018, to discuss the proposed medications with M. Dr B reports that M remained reluctant to agree to the use of both medication due to her fear that T will suffer side effects. It appears that M was not reassures despite the monitoring process that Dr Bintends to implement.

19.  Dr B concludes his report by saying “In as much as the decision to commence a child on psychotropic medication needs to be taken seriously, it is my opinion that T's sleep pattern and challenging behaviour will require the adjunct of pharmacological intervention as part of his management plan in order to prevent his heighten level of anxiety and distress, and provide the opportunity for him to be able to engage in psychosocial strategies to improve his quality of life”.

20.  When he gave his oral evidence, Dr B said that he would not prescribe a dose of risperidone higher than 2mg per day as higher doses carry a greater risk of producing side effects. He is of the opinion that side effects such as weight gain can be managed by way of diet and exercise but he is more concerned about a raised prolactin level. He said that this would be monitored by way of yearly blood tests as the risks from this are a ‘slow-burn’ rather than an immediate risk of harm. He accepted that taking a blood sample from T might not be easy, particularly if the risperidone is not having the desired effect. Dr B accepted that it may be necessary to use restraint to obtain a blood sample from T but, given that this is just once per year, the distress that may be caused by taking the blood sample was, in Dr B’s view, outweighed by the benefits of the medication.

21.  It was Dr B’s evidence that there is a good chance that the use of risperidone will have the intended effects of reducing T’s anxiety but, he accepted that it may be necessary to use it in combination with another drug, aripiprazole. This antipsychotic is not licensed for use with children but is licensed for use in adults and Dr B said that he has had good results when using aripiprazole in combination with risperidone.

22.  When cross-examined by Ms Wordsworth, Dr B said that aripirazole is used by him to augment the effects of risperidone where progress has been made but there is stillroom for improvement. He told me that the fact that it is not licensed for use with children did not prevent him from prescribing it for children and he has seen good results with it in other patients.

23.  Given the views I expressed in my previous judgment concerning X unit’s failure to adequately supervise T to the extent that he was able to extract 8 of his toe nails, Ms Wordsworth asked Dr B a number of questions concerning how T would be monitored for the presence of side-effects. Dr B said that he has regular contact with the staff at X unit by telephone, although he visits just once each month. He was confident that any side effects would be noticed as the observation of all the children and young people at X unit is part of everyday duties of the staff. He accepted that it was of concern that there had been failings in the monitoring of T at X unit as, if he is not given information, there is the potential for his analysis of T’s medical needs to be undermined. However, Dr B is of the opinion that the use of LUNSERS, a monitoring process that is not used with any other resident at X unit and is being applied with T due to M’s concerns about the use of medication, will, in Dr B’s view, ensure that side effects are noticed. It is perhaps surprising that LUNSERS is to be used just once every 3 months but it was Dr B’s view that between these times, the observations of the carers would be adequate monitoring. It is Dr B’s opinion that side effects are noticed by the observation of subtle changes in T’s behaviour and that the two members of staff who supervise T during the day are best placed to see any signs. Dr B was very firmly of the opinion that side effects are unlikely to arise at the low dose of the medication that he is recommending.

24.  Dr B accepted that, if the use of risperidone is authorized, it is likely that it will be prescribed in the long-term. Ms Worthsworth asked Dr B what would be the ‘exit plan’ from its use but it was clear from Dr B’s evidence that there are no pre-planned goals towards withdrawal as he told me that if the medication is working, it is best not to change it as that can then lead to a deterioration that then requires a greater dose to recover the same level of benefit that was previously obtained at a lower dose. Dr B said that some patients take risperidone for years if it is effective. For there to be a plan for risperdone to be discontinued, Dr B said he would want to see a reduction in T’s destructive behaviours, a reduction in self-harming, a reduction in the shredding of clothes and more engagement by T is the activities at X unit. Dr B accepted that there had been a reduction in the frequency of T pulling clumps of hair from his head and that there had been no repeat of toe-nail removal. Dr B understands T to continue to rub his face, causing it to be sore, from time to time but the reduction in these behaviours did not change his recommendation that T would benefit from the use of risperidone.

25.  When asked about the use of melatonin, Dr B said that he proposed starting T on a dose of 2mg per day but that this could increase to 10mg per day if necessary. He did not accept that T would be drowsy during the day from the use of melatonin at night and advised that it is a medication that can be reduced over time as a regular sleep pattern is established.

26.  Dr B was asked by Mr Howard if it was his plan to commence use of both drugs simultaneously. Dr B said that ideally he would not start 2 drugs at the same time but when he made this recommendation back in August, T’s behaviours were quite intense and he was of the view that drug therapy would assist. After some thought, Dr B said that, if the court authorized the use of these medications, he would commence melatonin first and then introduce the risperidone after 2 months if the use of melatonin had not produced sufficient improvements.

27.  Both in his report and in his oral evidence, Dr B referred to the use of medications other than risperidone and melatonin. He said that there needs to be flexibility for him to use other drug therapies if the medications he first prescribes do not produce the desired result. He said that T’s behaviour has not yet reached the stage where he cannot be managed by X unit but Dr B raised this possibility in support of his view that he needs to have some freedom to make clinical decisions as to what drugs should be used when the need for changes arise.

28.  On 8 February 2018, the only evidence I heard was that of Dr B. For the reasons given above, M has not attended this hearing. The social worker [SW] has provided an updating statement. In her statement, SW says that she feels reassured by the content of Dr B’s report and she supports the administration of both drugs. She says that she intends to view the sleep charts and to request information about any signs of side effects when she visits the unit. As Ms McCormick said in closing submissions, SW will be part of the monitoring process.

29.  I received a position statement on behalf of the Guardian [CG]. CG supports the administration of both drugs and agrees the content of the amended care plan.

30.  Before moving to analyse the evidence presented and the submissions made on behalf of each party, it is necessary for me to set out the legal principles that I must consider when determining this application.

 

The Declarations Sought by the Local Authority

31.  On 4^th December 2017 I granted the local authority permission to apply within the inherent jurisdiction of the High Court for the purposes of its application seeking authorization to administer a vaccination to T. I extended the scope of that application to include the administration of risperidone and melatonin.

32.  For the reasons given in my judgment of 5 January 2018, I concluded that it would be inappropriate, given M’s opposition, for the local authority to give consent to the administration of risperidone and melatonin. On 16 January 2018, the judgment of Munby P in the matter of AB [2018] EWFC 3, was published. At paragraph 24(iii), Munby P says:

 

“Whatever its strict rights may be, a local authority will usually be ill-advised to rely upon its parental responsibility under section 33(3)(a) of the 1989 Act as entitling it to authorise medical treatment opposed by parents who also have parental responsibility: see Barnet London Borough Council v AL and others [2017] EWHC 125 (Fam), [2017] 4 WLR 53, para 32, and the discussion in Re C (Children: Power to Choose Forenames) [2016] EWCA Civ 374, [2017] 1 FLR 487, paras 92-95.”

 

33.  On 5^th January 2018, the local authority sought time to decide if it wished to seek an appeal of my decision or proceed with an application for declarations. No application for permission to appeal has been made and the local authority now seeks declarations in the following terms:

“T is to receive a natural sleeping aid (such as melatonin), and/or an antipsychotic (e.g risperidone) at a dose and a frequency required necessary by qualified medical professionals with the purpose of relieving his anxiety to allow him to thrive”.

34.  In her closing submissions, Ms McCormick sought an additional declaration as follows:

“the above declarations do not prevent those providing medical treatment to the child from giving any medical treatment that they consider to be in the best interests of the child at any particular time”.

 

The Law

35.  The parties are agreed as to the legal principles that apply to the local authority’s application. Ms McCormick relies on the judgment in LCC v A, B, C, D [2011] EWHC 4033 where Theis J says the following:

 

9.   There is no dispute between the parties as to the law. Once the inherent jurisdiction is invoked the welfare of the child is the paramount consideration. 

 

10. The Court of Appeal in Re J (A Minor) (Wardship: Medical Treatment) [1991] 1 FLR 366 considered the future medical management of a severely brain-damaged premature baby with a considerably shortened life expectancy. Lord Donaldson MR said 370 respectively "… The court, when exercising the parent's patriae jurisdiction, takes over the rights and duties of the parents, although this is not to say that the parents will be excluded from the decision-making process. Nevertheless, in the end, the responsibility for the decision whether to give or to withhold consent is that of the court alone."

11.  In this case the dispute is the exercise of parental responsibility as between the parents and the Local Authority. I have been referred to a number of cases that look at how the parent's views should be considered by the court. In Re Z (A Minor)(Freedom of Publication) [1996] 1 FLR 191  Sir Thomas Bingham MR said at 217 B-C: "I would for my part accept without reservation that the decision of a devoted and responsible parent should be treated with respect.  It should certainly not be disregarded or lightly set aside.  But the role of the court is to exercise an independent and objective judgment.  If that judgment is in accord with that of the devoted and responsible parent, well and good.  If it is not, then it is the duty of the court, after giving due weight to the view of the devoted and responsible parent, to give effect to its own judgment.  That is what it is there for.  Its judgment may of course be wrong.  So may that of the parent. But once the jurisdiction of the court is invoked its clear duty is to reach and express the best judgment it can". In Re T (Wardship: Medical Treatment) [1997] 1 FLR 502 Butler Sloss P said at 509 that "…..it is clear that when an application under the inherent jurisdiction is made to the court the welfare of the child is the paramount consideration. The consent or refusal of consent of the parents is an important consideration to weigh in the balancing exercise to be carried out by the judge. In that context the extent to which the court will have regard to the view of the parent will depend upon the court's assessment of that view. But as Sir Thomas Bingham MR said in Re Z, the court decides and in doing so may overrule the decision of a reasonable parent".

12. The court also has to carefully consider Article 8 of the European Convention and, in particular, consider whether what is proposed is a justified and proportionate interference with family life.

 

36.  As set out by MacDonald J at in Re SL (Permission to Vaccinate) [2017] EWHC 125 (Fam)

“Thus, where there is a dispute between those holding parental responsibility (whether as between parents or between parents and a local authority holding a care order) as to whether such a vaccination or vaccinations should take place the court has jurisdiction to determine the dispute.  In determining the question before the court, the welfare of the child is the paramount consideration of the court.  Within this context, the court must accord appropriate weight to the views of the parent or parents having assessed those views and must exercise an independent and objective judgment on the basis of the totality of the evidence before it, including, but not limited to, the expert evidence”.

37.  I am not concerned with a one off vaccination, or a short course of vaccinations, but with the administration of medication to a child over what is expected to be a prolonged period of time. However, the parties agree, correctly in my judgment, that the legal principles set out above apply to this determination. I have to weigh the advantages and risks of the treatment proposed and reach an independent and objective decision that best promotes T’s welfare, whilst giving appropriate weight to M’s objections.

 

Discussion and Decision

38.  On behalf of M, Ms Wordsworth argues that the risks to T of the use of these drugs outweigh the benefits. When M gave her evidence before me in December 2017, she was concerned that the presence of side effects from the use of both drugs would be difficult to identify in T, as he is non-verbal. M was concerned that the drugs were to be used due to T’s difficult behaviour and the sedative effect of these drugs would make him easier to manage at X unit. It was clear to me that M took the view that these drugs were being prescribed for the convenience of the carers rather than for T’s own benefit.

39.  Having heard Dr B’s evidence, I am satisfied that a desire to sedate T during hours when he should be awake forms no part of Dr B’s decision making. He told me that this drug combination is commonly used with autistic children to improve their sleep and reduce anxiety for the purpose of enabling their participation in the psychosocial strategies employed by staff to assist them manage daily life tasks.

40.  As I found in my judgment of 5 January 2018, M’s concerns about the presence of side effects, when looked at generally, are reasonable. M spoke with Dr B on 22^nd January and was advised as to the reasons for the recommendation for the use of these drugs specifically for T. This discussion did not change M’s opinion, although I have not heard evidence from her as to why Dr B’s assurances do not alleviate her concerns and M was not present in court when there was further investigation of the steps to be taken to protect T, as far as is possible, from suffering side effects.

41.  Dr B was confident in his oral evidence that the use of melatonin would have positive results. I remind myself that pharmacological sleeping-aids were recommended for T by CAMHS some years ago. M opposed their use at the time and T’s nighttime activities, as described in my 5 January judgment, exposed him to significant harm. I accept the evidence before me that it is crucial that steps are taken to establish a regular sleeping pattern for T as his lack of sleep, and his activities when not sleeping, have a negative impact on him during the day and interfere with his ability to participate in the activities of the day.

42.  His levels of anxiety remain high, as demonstrated by his behaviours within X unit. I accept the evidence of Dr B that risperdone is likely to have a positive effect. As he says in his report, the use of risperdone could be a ‘game-changer’ for T. If he is less anxious, he is less likely to be aggressive and destructive and he will be more likely to, over time, learn how to manage his behaviour in a way that will increase his access to activities and the community.

43.  On the basis of the evidence that I have heard and read, the potential benefits of the use of both medications are significant but I have to balance those benefits against the potential risks. When looked at generally, risperidone is a drug that comes with the risk of worrying side effects. However, when considering the dosages recommended by Dr B, the likelihood of side effects arising is low. I accept Dr B’s evidence that side effects are unlikely with the doses he has recommended.

44.  To protect T, as far as is possible, from developing side effects, Dr B and X unit are to follow the LUNSERS monitoring process. This is to be employed for T as a special measure that is not employed with other patients. I acknowledge M’s fears that X unit will not adequately monitor T, fears that are, in part, supported by the findings that I made on 5 January. However, Dr B has read my judgment. He is aware of the criticisms that I made of the supervision of T and he is to impose the additional safeguard of LUNSERS. SW is also very much aware of the concerns about supervision and I am confident that she will act as an effective additional safeguard for T and will, I am sure, be active in questioning X unit as to T’s progress on these drugs. If I were to authorize their use, SW will be alert to the potential for side effects and questioning of the staff as to their continued monitoring.

45.  M was not present in court when Dr B gave evidence of the need to take a blood sample from T, once each year, to monitor him for increased prolactin levels. I am sure, from what I know about T, that taking a blood sample is likely to be a difficult task. Dr B told me that staff has taken T’s blood pressure on one occasion and it may be that the benefit of risperidone will be that he becomes calmer and will submit to a blood test. If he does not, Dr B’s view is that a restraint will be used to obtain a blood sample but the distress caused by this restraint will be greatly outweighed by the benefit of the medication. Having considered all the evidence, I agree that the benefit to T, both in the short and into the long term, outweighs the distress that T will suffer if a restraint is required to obtain a blood sample.

46.  It was not until Dr B gave his oral evidence that it was clear that the administration of these drugs is likely to be a long-term rather than a short-term measure. Ms Wordsworth properly questions how a reduction or cessation of the use of these drugs will come about. Dr B gave the best evidence that he could as to the improvement that he would need to see before a reduction or removal of these drugs could be considered. I remind myself of the degree of T’s impairment as described by Dr Singh and as demonstrated by his behaviours, as described in this and my 5 January judgment. I accept Dr B’s evidence that it is extremely difficult to predict when, if the drugs are administered, the time will come when their cessation could be considered.

47.  The side effects of melatonin are much less severe than those that can occur with risperidone. Indeed, in clinical trials the side effects that were reported by those who were administered melatonin mirrored those reported by participants who had been given a placebo. I accept Dr B’s evidence that T is very unlikely to experience drowsiness during the day if having melatonin at night. M’s other objection to the use of melatonin is that it assists in inducing sleep but is less helpful in maintain sleep; that M believes to be T’s difficulty. Dr B’s observations in his report demonstrate that T has difficulty in going to sleep and in staying asleep. It is Dr B’s evidence that melatonin will assist with both and I accept his evidence.

48.  As M and the local authority are unable to agree, I have to reach my own conclusion as to whether T should receive these medications. I am not being asked to authorize the use of ‘unlicensed’ mediations, as referred to by Dr B in his oral evidence. The local authority volunteered an assurance that it would not agree to the use of such drugs in the absence of agreement by M and would make a further application to the court should a dispute arise. However, I am being asked to grant declarations that permit the use of licensed antipsychotics, not limited to the use of risperidone, and the use of  ‘natural’ sleep aids. By the use of the words ‘natural’, I am not considering the use of pharmacological hypnotics such as benzodiazapines, nonbenzodiazepines or quinazolines.

49.  Ms Wordsworth argues that I should limit the declarations to the use of the 2 specific drugs that are currently recommended by Dr B. It is Ms Wordsworth submission that the use of any other drug has not been discussed with M and, therefore, she does not have instructions as to what M’s position on these more widely worded declarations might be. Had M attended the hearing, she would have had the opportunity to give instructions. Ms McCormick’s skeleton argument that sets out the wording of the declarations sought by the local authority was not received until the morning of 8 February, so there was no opportunity for M to consider what is being sought and, although I recognize that M had limited her contact with her solicitors prior to this hearing, she did make contact to provide the instructions that are contained in her position statement.

50.  Parents are afforded a significant degree of autonomy when considering whether to agree to drug therapies recommended by medical professionals. M is not opposing the administration of life saving medical care but expressing her own assessment of what she understands to be the risks of use of these drugs with her son. I must therefore afford proper weight to her views. Given the findings that I made concerning X unit’s supervision of T in my 5 January judgment, M’s fears that side effects will not be identified have a solid foundation.

51.  However, what is being proposed is administration of life-enhancing medication that, if successful, is likely to have a significant impact on T’s ability to reach his full potential, whatever that potential may be. M’s assessment of the likelihood of side effects is not supported by the expert medical evidence I have heard from Dr B. I am also satisfied that, failings having been identified, that the steps to be taken by Dr B and SW are sufficient to address the need for T to be closely monitored. I am also satisfied that Dr B’s incremental approach to the introduction and use of both drugs, provides the opportunity to observe the effect of the drugs on T’s behaviours.

52.  In my judgment, the weight I can give to M’s objection is reduced as she has maintained, but not explained, why she continues to oppose the introduction of these drugs despite having spoken to Dr B on 22 January and having had the opportunity to review his report. M was not present to hear his evidence and consider for herself the safeguards that he has proposed and consider his expert evidence as to the limited likelihood of side effects occurring at the dosages proposed.

53.  I have had regard to M’s article 8 rights to respect for her family life. I accept that the authorization by the court for the use of medications in T, against the wishes of M, is a significant interference with M’s article 8 rights. I can only entertain such an interference in circumstances where that interference is permissible within the terms of Article 8(2), in that it is prescribed in domestic law, pursues a legitimate aim, is necessary and proportionate. As set out above, the High Court has jurisdiction in our domestic law to authorize this interference with M’s family life. The legitimate aim is to protect the health of a minor by ensuring that he receives medical care that is designed to assist him in reaching his full potential. Despite the possibility of the occurrence of side effects, having considered all the evidence before me, I am satisfied that steps proposed by the local authority are necessary and proportionate. Dr B expressed the view that T has made very limited progress at X unit in the last 7 months and the addition of pharmacological therapies is an important part of his care plan going forward. I accept Dr B’s evidence and am satisfied that, in the absence of granting the declarations sought, T will continue to be denied the drugs recommended and this will, in my judgment, impair his development.

 

Conclusion

54.  For the reasons given, I am satisfied that it is appropriate to make a declaration, under the inherent jurisdiction of the High Court, that it is in T’s best interests for the local authority to have permission to agree the administration of risperidone and melatonin.

55.  I recognize Dr B’s desire for a free hand in deciding what drugs he can use to treat T but I have to properly recognize M’s objections and the lack of notice to her of the possibility of using a wider range of antipsychotics. I balance that lack of notice against M’s failure to attend this hearing but I have concluded that it would be wrong to grant a wider-ranging declaration, particularly given that (i) there is no current plan to introduce any medication other than risperidone and melatonin and (ii) Dr Bs evidence that he would not consider introducing any other antipsychotic until he was satisfied that the risperidone was not working as hoped. I also take into account that the only other antipsychotic referred to by Dr B was the drug not licensed for use in children and, if a decision is made that this should be tried, the local authority has given an assurance that it would seek a further declaration if there was a dispute with M concerning the use of an unlicensed drug.

56.  On behalf of M, Ms Wordsworth invites me, if granting declarations, to limit the authority granted to the dosages currently proposed by Dr B. It is argued that the chances of side effects occurring rise as dosage levels increase and the need to increase either drug to a level that would result in a higher risk of side effects should be reviewed by the court, given the evidence heard that the current levels proposed carry a limited risk of side effects.

57.  I have been referred to the decision of Wall LJ, giving the judgment of the Court of Appeal in Wyatt v Portsmouth Hospital NHS Trust [2005] EWCA Civ 1181 at paragraphs 117 and 188: 

117. We would, however, as a matter of practice, counsel caution in making declarations involving seriously damaged or gravely ill children, which are open-ended. In the same way that this court said in R (Burke) v GMC that it is not the function of the court to be used as a general advice centre (see paragraph 21 of this court's judgment), it is, in our view, not the function of the court to oversee the treatment plan for a gravely ill child. That function is for the doctors in consultation with the child's parents. Judges take decisions on the basis of particular factual sub-strata. The court's function is to make a particular decision on a particular issue.

118. As a general proposition, therefore, we have reservations about judges making open-ended declarations, which they may have to re-visit if circumstances change. But all that said, we came to the clear conclusion that Hedley J had indeed thought through the implications of what he was doing, and was entitled both to make and renew the declarations.

58.  I am, of course, not concerned with a child who has a condition that is life threatening. As I have already described, the medication that I have been asked to authorize is life enhancing rather than life saving. In my judgment, the principle set out in Wyatt v Portsmouth, that it is not the function of the court to oversee the treatment of a child, is applicable to the circumstances of this case, given that the authorization sought will apply for an indefinite period. I have made a specific decision on evidence heard as to T’s needs as they are today, but that evidence included hearing expert opinion as to how dosage levels may need to increase if T does not respond to the drugs prescribed at lower dosages. In my judgment it is necessary, to ensure that T is able to have access to a course of treatment that reflects his needs as they change, not to limit the declarations to a specific maximum dosage. The decision as to the appropriate dose to prescribe is a medical decision for the doctors providing care for T in consultation with those who hold parental responsibility. Given M’s opposition to the administration of either of these medications, in my judgment she is likely to oppose any increase in the dosages used and it is necessary for local authority to have the permission of the court to consent to a greater amount of the same drug if this is what Dr B advises is necessary. Of course, the local authority can only grant consent against M’s wishes if it considers it proportionate to do so. On the evidence I have heard, I have concluded that it would be proportionate for the local authority to agree to increasing dosages of risperidone and melatonin should that be recommended by the team caring for T.

59.  It is my hope, should the administration of these medications bring about positive outcomes for T, that M will recognize the benefits of drug therapies and will be more receptive to any proposals for alterations in the drugs to be used. The declarations I grant are limited to ‘natural’ sleeping aids and risperidone. Should there be a dispute as to the introduction of any other drugs or a change in any other aspect of T’s care that is opposed by M, it will be for the local authority to consider whether it needs to seek the approval of the court or exercise its ability to override M’s wishes by the use of its overarching parental responsibility under section 33(3) Children Act 1989. Whether recourse to the court is necessary will depend upon the nature of the decision to be made.

60.  In my judgment it is necessary to grant the 2^nd declaration sought by the local authority, so as to ensure that there is no confusion as to what is, and is not permitted. My decision is limited to the drugs to be provided to T to manage his sleep pattern and to address his anxiety. The declarations granted are not intended to inhibit any other aspect of his medical care.

 

Review of the Deprivation of Liberty Authorisation Granted on 5 January 2018

61.  Since my decision on 5 January 2018, Munby P has published his judgment in the case of A-F (Children) [2018] EWHC 138 (Fam). Guidance has been provided as to how the court should manage its review of a deprivation of liberty [DOL] authorization granted concerning a child who is the subject of a care order.

62.  At §55 of his judgment, Munby P says:

“Continuing review is crucial to the continued lawfulness of any "confinement". What is required are:

i) Regular reviews by the local authority as part of its normal processes in respect of any child in care.

ii) A review by a judge at least once every 12 months. The matter must be brought back before the judge without waiting for the next 12-monthly review if there has been any significant change (whether deterioration or improvement) in the child's condition or if it is proposed to move the child to a different placement.

iii) The child must be a party to the review and have a guardian (if at all possible the guardian who has previously acted for the child).

iv) If there has been no significant change of circumstances since the previous hearing / review, the review can take place on the papers, though the judge can of course direct an oral hearing. The form of the next review is a matter on which the judge can give appropriate directions at the conclusion of the previous hearing.”

63.  For the reasons given on 5 January 2018, I determined that the first review of the DOL should take place in 6 months. I have not been asked to review that decision and have heard no evidence that leads me to conclude that it would be appropriate to hold a review at a later time, recognizing as I do that a review could be held in 12 months but with an earlier review being held should the need arise by the local authority making an earlier application. The 1^st review at 6 months was fixed as I accepted the evidence of the guardian that T’s developmental stage required a review at 6 months rather than 12 months. I also take into account the improvements in T’s presentation that are hoped to arise as a result of the administration of the drugs now approved for use and the possible impact this may have on the need to restrict T’s liberty.

64.  At §56 of the judgment in A-F, Munby P recommends that proceedings should not be kept alive for the purposes of review but should be concluded on the making of a care order. I shall, therefore, make final orders today but give directions that apply upon the local authority issuing its application for the review of the DOL authorization. Those directions will include the provision of an updating psychiatric assessment and an updating statement from SW. T will be a party to the review proceedings and will have a guardian appointed for him, preferably the same guardian who has acted for him in these proceedings, who will provide a report for the review.

65.  The evidence filed for the review hearing shall address the matters set out by Munby P at §51 and 52 of A-F:

 

“The evidence in support of the substantive application (interim or final) should address the following matters and include:

i) The nature of the regime in which it is proposed to place the child, identifying and describing, in particular, those features which it is said do or may involve "confinement". Identification of the salient features will suffice; minute detail is not required.

ii) The child's circumstances, identifying and describing, in particular, those aspects of the child's situation which it is said require that the child be placed as proposed and be subjected to the proposed regime and, where possible, the future prognosis.

iii) Why it is said that the proposed placement and regime are necessary and proportionate in meeting the child's welfare needs and that no less restrictive regime will do.

iv) The views of the child, the child's parents and the Independent Reviewing Officer, the most recent care plan, the minutes of the most recent LAC or other statutory review and any recent reports in relation to the child's physical and/or mental health (typically the most recent documents will suffice). 

Whether and to what extent new evidence (e.g., up-to-date reports) will need to be obtained, or whether reliance on existing evidence will suffice, must depend upon (a) the extent to which the existing evidence covers the various matters referred to above, (b) the age of the existing evidence (how up-to-date is it?) and (c) the extent to which there have been any significant changes since the existing evidence was prepared. The evidence from the guardian, which I envisage can often be quite short, will typically focus on the "confinement" and "deprivation of liberty" issues; unless there has been a very significant change in the child's circumstances, the application under the inherent jurisdiction should not be an occasion for re-opening the wider welfare issues previously determined in the care proceedings.”

66.  The application for a further authorization will be considered on the papers unless any party seeks an oral hearing or the court concludes, having considered the evidence filed, that an oral hearing is required.

 

Post Script

67.  On 8 February 2018, after handing down this judgment in draft, I raised with the parties my concern for the use of the words ‘natural sleep aids’ in the declaration sought by the local authority, as I was not clear what sleep aids would be included within that description, if it was an appropriate classification for sleeping medications. With the agreement of all parties, the local authority sought further advice from Dr B. He advised that melatonin is a naturally occurring hormone but the version prescribed is synthetic. He said he is not able to prescribed natural sleeping aids such as Nytol and herbal remedies. Dr B suggested that he be authorised to administer ‘night hypnotics’. The parties agree that the use of the words ‘night hypnotic’ would include the use of benzodiazapines, nonbenzodiazepines or quinazolines. M was not on notice that these stronger hypnotic drugs were to be the subject of a declaration and the parties have agreed that the declaration should be limited to the use of melatonin. I will also make the additional declaration sought by the local authority in the following terms:

“This declaration does not prevent those providing medical care for T from giving any medical treatment that they considered to be in his best interest at any particular time, save for the routine use of sleeping aids and risperidone in accordance with the declaration set out above.”