I’ve been unable to stop thinking about yesterday’s incident involving a mentally unwell sixteen year old girl in police custody for two days! TWO DAYS!? If the police did that to any criminal they would be investigated by the IPCC.
I admit, I’m probably more appalled by it tonight than I was last night. This is partly because there has been a fair amount of social media debriefing and debate going on about it, much of it expressing admiration for ACC Paul NETHERTON’s willingness to speak out and push the envelope. We learned today that the girl’s mother had taken chocolates to the police station to thank the officers for their efforts to do as much as possible. It turns out they had even made the effort to fetch her a McDonald’s meal rather than keep subjecting her to microwavable police food! I’m proud that it has been a repeated theme in my work this week, to hear of patients and families who thought the officers they dealt with treated them with dignity and compassion, notwithstanding that their encounter may well have been in circumstances we’d rather not contemplate. I was glad to see that seemed to be the perception here, too.
THE LEAST WORST OPTION
So why this second post? – to highlight an issue about ‘thinking’ and about conflicts in law. I seem to have witnessed a recurring dialogue that focussed on all the relatively unimportant reasons that nothing more could be done rather than on the glaringly obvious reason why walls should have been broken down long before a senior police had to get involved.
For example, I know that on other occasions where a CAMHS bed has been unavailable, a child has sometimes been admitted to an adult mental health ward, with specialist nursing support to ensure safeguarding. I also know of occasions where a Mental Health Trust has shut down its s136 Place of Safety and temporarily used that space to admit a CAMHS patient who remained there for six weeks until a bed was arranged, despite the fact that the trust concerned would not otherwise allow the s136 suite to be used for 72hrs to assess a child – but they were happy enough to have the child there for six weeks!? We know that on occasions, a CAMHS patient has been ‘sectioned’ to an children’s ward in an acute hospital or to a specialist children’s hospital which has a ‘CAMHS’ wing, possibly with additional nursing support.
Nobody thinks that any of these things are inherently great ideas that we should be looking to very casually – they may be things you may start to consider that might be just a bit better, if still far from ideal. I’m wondering how many mental health professionals will have read the previous paragraph and be thinking, “Hang on! You can’t just do that because …”?! I want to argue that this is the beginning of inappropriate focus on the legalities involved. Let’s look at the one massive reason for moving heaven and earth to sort this, not the nine less important reasons to just let things run their course —
- “You can’t admit a child into an adult mental health ward, because it is a safeguarding risk” – the NHS have to report such things as a Serious Untoward Incident and conduct a thorough review. Fair enough – we can all understand why this happens. Doesn’t mean it’s always a worse idea that the problem you’re fixing by doing it. It happens from time to time and if illegal, protracted detention in police custody is not a point where we start to think about it, when do we think about doing it?!
- “You can’t close a place of safety down and admit someone there – it’s not a commissioned bed that is available for admissions!” – that is a remark about NHS bureaucracy, isn’t it. We know that there are many circumstances where wards are run over 100% capacity. If this is such an outrage, why does it ever happen? – presumably in situations where it is less of an outrage that than the outrage that would otherwise prevail?!
- “You can’t detain a mentally unwell child on a ward of other acutely sick children, it just isn’t fair.” – so the child with mental health problems loses out, because physically ill children have to take priority? What was that you said about parity of esteem?! This presumes that physically ill children can’t be noisy, disruptive or emotionally affected by the experience they’re going through which is one hell of an assumption to make.
Well, guess what? – you can’t illegally detain a child in a cell block either, beyond the timescales prescribed by law. And so the decision becomes about which set of regrettable circumstances to which you’d prefer to be party – something that is about trying to do the best we can, however unideal it is, where we try to get close to the legal frameworks that govern us all; or something where we put issues other than patients at the forefront of our thinking? Mental health professionals can become unwitting accomplices to intransigence when they won’t consider how to bash through the commissioning, budgetary and over-functionalised bureaucracy that is our NHS system – remember that in MS v UK, the degradation occurred in police custody but it was the NHS who were found liable, not the police.
I understand the reasons why something is not ideal, but what I’ve been hearing all weekend is why we’re going to rigidly adhere to organisational preferences and guidelines despite the very great likelihood that a child’s fundamental human rights were compromised. So let’s look at this in a bit more detail and think about it legally.
CONFLICTS OF LAWS
There are many situations in which laws can conflict and contradict and we see this in European Convention caselaw. We carry on with domestic laws until arguments are occasionally put forward that even more fundamental rights are being jeopardized. One example was the introduction of the Mental Capacity Act in 2005. The year before, the so-called ‘Bournwood’ case was a challenge brought by a man who had been detained for a long time in institutional care. It was argued that he was unable to look after himself and his own affairs because of his condition but because he had a learning disability and was not “abnormally aggressive or seriously irresponsible” (s1 MHA 1983) the Mental Health Act 1983 could not be applied. Clinicians therefore ordered his detention under the Common Law Doctrine of Necessity. The man argued in HL v UK  that this detention being indefinite and without an obvious basis to review or appeal, it violated his Article 5 rights to liberty and security. He won and as a result, the UK Government introduced the Mental Capacity Act 2005 and subsequently the Deprivation of Liberty Safeguards, to cater for such situations. It still means that individuals with similar conditions and needs can be detained or deprived of their liberty in some circumstances but it provides a framework around that situation, including a right to challenge it.
We could give other examples: in MS v UK  a man was detained in police custody as a place of safety, after being detained under s136 of the Mental Health Act. Nothing specifically prevents this from happening as our domestic law caters for this very situation and allows it to happen on an exceptional basis. However, because of MS’s particular presentation in the hours and days following his detention by the police, he argued that by being left in that place of safety for over two and a half days subsequent to being assessed as requiring an urgent admission, he had suffered inhumane and degrading treatment. He won this argument and it was nothing like sufficient for the Mental Health Trust involved to argue that he hadn’t really come to harm and that his detention had followed a legal process. The point was that they way in which that process unfolded was the problem that degraded him. Had that processes unfolded following the detention of another patient, presenting differently, there may well have been no violation of Article 3.
So some situations force a choice upon those professionals involved: what would you rather breach – your organisation’s bureacracy, health service guidelines, statutory guidelines like a Code of Practice; an Act of Parliament like the Mental Health Act 1983 or the Police and Criminal Evidence Act 1984; or the European Convention on Human Rights? I’ve written about this kind of thing before: sometimes it’s about choosing the least worst option from a range of potentially bad ideas. But in the absence of some good ideas, you might have to make the best of things?!
That’s what work at the interface of policing and mental health is all about!
COMMON SENSE TEST
So let’s ask some really basic questions: is it better or is it worse for a 16yr old child, acutely unwell, to be legally detained in a mental health unit that is having to draft in some extra staff to help keep her safe because they are running at 104% capacity rather than be in police custody, surrounded by cops and the other prisoners that are brought in? I won’t graphically describe what some prisoners are like in custody – we can all just agree that it’s a hell-hole of noise, filth and violence.
If you’re going to have to breach something we’d all prefer not to breach, are you going to worry more about violating internal NHS process or violating a child’s fundamental human rights? If I’m honest, I don’t even find that a hard question: I’m going to breach the process that has failed to ensure her fundamental rights and dignity and my explanation will be “I have a positive duty to ensure this happens as she was being held illegally before I made my decision.” As a police officer, I have faced this very dilemma: I’ve been posted to work in areas where the locally agreed joint protocol for how the Mental Health Act will work, breached the Mental Health Act Code of Practice or simply didn’t exist. I have also worked in areas where the Code itself may well have been complied with, but to do so would have put people in danger that could lead to me being prosecuted for negligence and neglect. So sometimes, I was in effect directed to do things that other legal structures direct me to avoid.
And so I have a choice to make, whether I want it or not – and so does every mental health professional involved in emergency mental health care.
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