Consequentialism

This post just seeks to ram home again what’s already known – there’s nothing new to see here, but we’re now one week on from the custody debacle in Devon which saw a young woman detained for two days whilst mental health services struggled to find a bed into which to admit her.  We know she was eventually admitted to an adult psychiatric bed, which is less than ideal, and we don’t know whether she remains there one week on.  What I do know is I’ve had several queries this week from custody officers and various forces’ mental health leads about this situation:  Someone was brought into custody for reasons originally unconnected to the Mental Health Act, they have been assessed as being in need of admission to hospital under the Act, but no bed is forthcoming.  The precise dilemma is: how do you manage the situation in custody if the delay in accessing the bed is protracted and beyond the timescales which normally apply to the police holding on to people?

There are a few scenarios –

• Someone was detained under s135/6 of the Mental Health Act – but the 72hr authority to hold them in a Place of Safety is now running out.
• Someone was arrested after an allegation of an offence – the legal decision around that allegation is it will not lead to a charge being brought now and the person will be released by virtue of s34(2) PACE.  They should be diverted under the Act into hospital.
• Someone was arrested to prevent a Breach of the Peace – for those who are unfamiliar with what happens here, officers will keep determining whilst the person remains in custody whether a Breach of the Peace is still anticipated and they will either, release the person once it is no longer apprehended, OR they will place that person in front of a Magistrate once they are available.  So what happens if the breach is no longer feared OR if the Magistrate becomes available.

• Contemplate yourself as the custody sergeant – knowing that the AMHP has not yet made an application and the Doctor who led the assessment is struggling to find a bed.  Even the duty inspector may have had a word on your behalf but it’s made no difference and it’s now decision-time.

You have a legal and ethical nightmare on your hands, don’t you?! Do you release the person from custody, out in to the street – after all, this is what the law is telling you to do in the first two situations.  In the third, the only other option is to place the person before a Magistrate.  I’m sure they would thank you whole-heartedly for asking them to deal with someone who is suspected to be very unwell but where there is no bed to access.  In any event, if we’ve now decided that someone is unwell, are we still looking at their presentation as a Breach of the Queen’s Peace or have we, more realistically, decided that the appropriate path to take is into the health and not the criminal justice system?

ETHICAL DILEMMA

How you look at this may depend to a degree on your ethics – are you more of a consequentialist or deontological philosopher?!  Is the morally ‘right’ thing to do, judged by the desirability of the outcome achieved or by whether or not we followed a standard of rules that we’ve all agreed are the rules we will abide by.  In these situations, I usually find most police officers will argue that ‘doing the right thing’ (as if that phrase means anything at all!) is achieved by keeping the person safe in the immediate sense, pushing hard for access to a bed, despite the fact that you are voluntarily walking in to an Article 5 European Convention of Human Rights nightmare.  A person shall not be deprived of their liberty except through a process defined by law.  Well, domestic law doesn’t authorise this – so are you also into false imprisonment territory?!

What about the opposite approach – maybe the custody officer thinks: “the law doesn’t allow me to do this without inflicting a potential human rights violation on the person … it’s not my fault that the AMHP and / or the Doctor and / or the NHS as a whole may be in breach of various parts of the Mental Health Act (s13/140) which collectively give rise to the AMHP being fairly impotent here.  Whilst we know it is never the AMHPs fault that they cannot access a bed, does this mean I should inflict a false imprisonment on another human being.  If I’m going to contemplate this illegal action, what other illegal actions am I going to contemplate?!” – is this another form of what some policing academics have caused ‘noble cause corruption’? Let’s be honest: if we were allowed to scoop up half and a dozen prolific offenders and detain them arbitrarily in custody for three days, we’d be pretty confident of preventing various crimes, potentially some very serious ones.  Doesn’t make it right, though, does it?!

So why might it be OK to detain a vulnerable person illegally when there’s no bed, but not prolific criminals when it will prevent crime?! Don’t both situations involve predictions of risks to individuals and others that we’re mitigating by our actions?  If we’re interested in the consequences of our decisions isn’t it the quality of the outcome that matters?  Deontologists would argue that it’s not – it’s about creating an objective framework that grounds our moral reasoning in something far more rigid, which prevents expedience from issue to issue.  So how are you going to decide what to do?!

ARTICLES TWO, THREE AND FIVE

We know from European case-law that the state owes a duty of care to people are known to be at high risk of suicide and a failure to discharge it can be a violation of Article 2 ECHR – SAVAGE and RABONE showed us this.  We also know that the ongoing detention of people in police custody in very difficult and disturbing circumstances can amount to a  violation of Article 3 ECHR – MS v UK [2012] showed us this.  We know that ongoing detention in locations which are not intended for the purpose to which someone’s detention is aimed, is a violation of Article 5 ECHR – Aerts v Belgium [1998] showed us this.  Finally, we know that being detained without a process prescribed by law, with safeguards, is a violation of Article 5 ECHR – HL v UK [2004] showed us this.

The above paragraph leaves the original dilemma wide open, so it is one that police forces and custody officers must face up to.  If you find yourself in the position of the Devon and Cornwall custody officers, what are you going to actually do?!

In the past, a police force has started legal action against the NHS to force the issue.  I’ve personally written a formal letter threatening to do so, in a similar situation during a murder investigation.  Last weekend, an ACC took to Twitter in order to bring pressure to bear and, so you know – all three of these things ‘worked’, in the sense that it brought a bed into view, where an application could be made.  When the IPCC investigated Greater Manchester Police for their 2004 incident, they stated that the force had little option to keep the man safe pending a bed being found and that whilst all actions after the decision under s34(2) PACE had been taken were  unlawful, they were, if you like, the least unlawful thing that GMP could have done.  The IPCC are consequentialists, it would seem!

But all of this post is a complete red-herring, isn’t it?!  The situation wouldn’t emerge in the first place if we had enough beds to deal with predictable demand and contingency plans, as implied by the Civil Contingencies Act 2005.  (Yes, I know the CCA doesn’t apply to NHS mental health trusts – but NHS England have told them to act as if it does.  And it does apply to CCGs and Local Health Boards in Wales.)

Why are AMHPs being placed in the position of not being able to make applications to hospitals, even in urgent circumstances.  It comes back to the commissioning of beds by CCGs (or by NHS England for children or for secure hospitals) and the current inability to match supply to demand.  I’ve long worried about the lack of contingency plans within the mental health system – because it seems, all to often, that the implications of this are either illegal detention by the police for someone who went to custody or, as highlighted by award winning journalist Andy McNICOLL from Community Care, suicides of (at least seven) patients where risk decisions were taken that it was acceptable for them to remain at home pending a bed becoming available.

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Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award

 

All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2014

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I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website – www.legislation.gov.uk