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High Court orders fresh assessment of 16-year-old's needs after Discharge Care Programme Approach document under s117 MHA 1983 deemed unlawful

Thursday 1 July 2021

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Facts

AK was 16 years old. She challenged an assessment carried out under s.117 of the Mental Health Act 1983 (“MHA 83”) by Islington LBC and the second defendant, the Clinical Commissioning Group (CCG), in relation to her discharge from hospital.

AK had a diagnosis of autism and had a range of severe mental health issues. AK had been a resident in a secure psychiatric hospital since February 2019 and was detained under s.3 of the MHA 83 in October 2019. On 16 November 2020 AK was discharged to a residential placement in an independent special school.

Islington LBC and the CCG undertook an assessment for the purposes of AK's discharge and the planning for her ongoing care. In the assessment, they set out in a Discharge Care Programme Approach (DCPA) document. AK claimed that there were deficiencies in the DCPA. AK’s claim was that Islington LBC and the CCG had failed to comply with their duties under s.117 of MHA 83 and the "Code of Practice: Mental Health Act 1983". AK sought a mandatory order for a full assessment under s.117.

On granting the application for judicial review the Court held
That the code of practice gave statutory guidance to local authorities and they were therefore required to have regard to it. However, it was not statutory guidance for commissioners of health services. Where two bodies were responsible for the welfare of an individual and were working together for the purposes of s.117 MHA 1983, especially a vulnerable child, the responsibilities imposed on the local authority by statutory guidance had to be the applicable standard. The CCG was therefore obliged to follow the Code absent cogent reasons for not doing so.

The court held that on assessing the lawfulness of the s.117 MHA 83 assessment, it had to ensure that it did not take over the role of decision-maker. There was a need for objective and evidence-based analysis and not to involve "nit-picking" or making unrealistic expectations in criticising aspects of the plan. The DCPA was an important document. A person reading it, be they a carer, the person being cared for, or a parent should be able to glean from it the key aspects of the plan. It could not be vague or lack precision. It is a tool for the assistance of professionals and practitioners on the ground. The Court held that in this case, the document did not adequately identify AK's needs, how to meet them and who was to do that. The statutory guidance in the Code of Practice had not been followed and applied with sufficient rigour. The DCPA was dated on the day of discharge and could not have been discussed and considered in good time. AK's mother did not sign the DCPA, thus she could not have been consulted and provided with a copy in advance. There was no witness statement from the signatories of the DCPA and no other witness had referred to the Code being used as guidance as it should have been.

The Court held that overall, the DCPA was not thorough. The DCPA had simplistic analysis and identification of the nature of AK's needs without the necessary precise, focused and detailed manner in which those needs were to be met. The DCPA set out broad aspirations without giving the detailed practicalities for her day-to-day care and support.

The DCPA was incorrect. In relation to education, it stated that there were no concerns relating to AK's intellectual level and was contrary to the cognitive assessment and was a concerning omission.

The DCPA did not provide a vital and important bridging link enabling the new care provider to gain a clear insight into the key aspects of the plan going forward by informing them of AK's specific needs and how to meet them. No reason had been given for any departure from the Code.

The DCPA was unlawful. AK was granted a mandatory order requiring that a new assessment be conducted.

Commentary

This judgment identified the importance of compliance with the guidance in the Code of Practice issued under the Mental Health Act 1983 in completing assessments of need and the role of the care plan and the requirement of precision of such a plan in identifying and meeting the needs of a former psychiatric patient.

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