High Court asks CFA to sort out problems in opening beds in special care units – 2019vol2#3

During an application for a special care order at short notice the High Court judge raised the issue of the lack of progress in opening more beds in secure care units with senior counsel for the Child and Family Agency. “The Agency is well funded, expertly run and should be in a position to sort out this glitch in order to make use of what are hugely impressive facilities, which I have seen myself,” the judge said. The court heard that of the 26 beds in three secure units, only 15 were open due to staffing and other difficulties.

The special care order was granted for a teenage girl in late 2019 at short notice. The court heard the following week that that she had settled in to the unit and things were going relatively well so far. Both parents were present in court and supported the special care order.

The barrister for the CFA told the court that the unit had had to use the “safe room” in the unit to accommodate her and that it had been changed into a bedroom for her. “An additional smaller room has been cleared out for the purposes of using it as a de-escalation room,” added the barrister.

Counsel for the guardian ad litem (GAL) said the GAL had been out a few times to see the child and that a good early relationship had been established between them. “The room is better than no room being made available,” he remarked to the court, “but the issue of the camera [in the safe room] still remains, it needs to be covered.”

Making an observation on the room the girl had been given, the judge said that the issues on the ability to use the capacity available in secure care units had to be resolved.  “My concern is if there is a need at short notice to make another special care order, unless the issues identified by the Agency have been resolved, the position is going to be more difficult to resolve on the next occasion. As I see it, it is not that difficult to resolve the issues so the beds available there can be used. I’ll leave it in the list for the [upcoming first review next week] but I do require an update on that discrete issue which is no longer an issue in this case but is an issue in a peripheral way. What I want to hear is that the matter is resolved.”

The judge added that the security camera in the room was obviously an oversight and it simply needed to be covered. He also required that issue to be resolved without delay.

When the case returned to the Minors List the following week the court heard that the issue of the camera had been dealt with. It was very early days for the young girl in secure care but there were no significant issues. She was struggling with her sleep pattern as she had had irregular sleep prior to going into secure care and had not as yet been out on mobilities. The ACTS team were engaged. Counsel for the GAL told the court that the child’s frustrations and inability to contain her emotions were beginning to become more evident and the GAL felt the professionals would soon start to see the behaviour that brought her into special care.

Her father was in court and had had three access visits, he was also having regular phone contact. Both parents were happy that their daughter was in the right place for her needs.

Regarding the fact that A’s bedroom and been created by staff out of the unit’s safe room, the judge remarked that the modification in the safe room had been acceptable on the basis that the Agency would do something to make use of the facilities.

He had made the order for secure care in advance of a bed being available and perhaps he blinded-sided the Agency because the room had not been prepared in advance and approved by HIQA. However he was now seeking the update on the use of facilities.

Senior counsel for the Agency updated the court that another room in the secure care building had been converted into a safe room and was now available to the residents.

With regards to the factual position of beds available within the country for secure care, counsel for the CFA told the court that he could not give great comfort in relation to future availability of placements. “[Location 1] has 10 beds, there are five in operation. [Location2] has four beds, four are in operation [for one resident] but a particular issue there is a child who is becoming an adult is currently there and while that person is there it will be very difficult to envisage any new children being placed there, so that poses an obstacle. [Location 3], has 12 beds, six are in operation, two beds are in fact allocated to [one young person], with particular risk profile circumstances.

“Recruiting additional staff is the additional piece of the jigsaw, the recruitment process hasn’t borne any fruit to allow further beds to be opened. The Agency has come to the view that it is more likely than not it will not bear fruit,” he told the court.

Retaining staff was the other difficulty because of the challenges they faced in the special care system and approval had been sought from the relevant Department to increase the allowance of payments, but then declined by the Department of Public Expenditure and Reform. The Agency had gone back to argue the case, that in order to entice and retain staff an increase in their allowance was needed.

Counsel said that the Agency did not want to put that up as a panacea because maybe that part of the picture alone was not enough to entice numbers in and maintain them.

The third piece was the possibility of employing people with lesser qualifications and different qualifications. This had been discussed with the trade union, but they were not in agreement with the requisite qualifications being changed. Further discussion would be taking place but at this stage, the Agency could not say with any degree of optimism that any agreement would be reached with the union, therefore the Agency were constrained about the possibility of employing other people with different qualifications.

Furthermore, recruitment drives in other related areas to recruit staff with different qualifications had been unsuccessful. Therefore, it was not clear that even if an agreement was reached with the trade union it would lead to a number of people being recruited.

For now 15 beds were in operation [four of these were in operation for one resident, two were in operation for another resident], “it doesn’t look likely the Agency will be in a position to open any further beds in the near to immediate future. The Agency does accept there is a problem, there have been two judgments in relation to how the process should work. Once a determination is made that the child requires secure care then an application will have to be made for secure care.

“The Agency will have to do everything it can but I have to flag it that there may be circumstances where an application is made and no bed is available and the Agency will have to take whatever consequences will flow from that. This is no great comfort for those managing this List but it is where things stand at the moment, that is the factual position,” said senior counsel for the CFA.

The judge replied that if a determination is made then the Agency would have to make an application and if the order is made by the court and no bed was available, then the Agency will have a problem.

“The sum total of what has happened in the period between the problem arising and today is that we have had a safe room replaced. I don’t want to be in a position that we’re having a discussion on the next occasion that the safe room is used as a place and whether or not HIQA have approved it in advance.

“I understand the union position, I understand the recruitment difficulties, but the Agency is well funded, expertly run and should be in a position to sort out this glitch in order to make use of what are hugely impressive facilities, which I have seen myself. It is not a problem at the moment because there isn’t anyone waiting on a bed, but it is only a matter of time, ultimately it’s a matter for the court if an order is made and no place is available but it’s a matter for the Agency to find a place if an order is made. I’ll leave it at that,” concluded the judge.