Prioritising Human Rights

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.


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.


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 [2004] 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 [2012] 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!


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.

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.


34 thoughts on “Prioritising Human Rights

  1. Dear Mental Health Cop
    Please may I praise you for all you have done – and continue to do – to raise awareness of the plight of people with mental health issues.
    Best wishes

  2. Absolutely. We live in an enlightened and ethical society – don’t we????. Let us all stop making professional / disciplinary / agency defences the reason for poor decisions.
    THE LAW AND YOUR PROFESSIONAL REGISTRATION BODIES REQUIRE IT. The persons or children in crisis or at risk must be the priority. The law may need to be clarified and responsibilities defined. All agencies and their personnel should be willing and pro-active in resolving these cases when they occur, regardless of budgets and gate-keeping. THEN ensuring NO recurrence.

    It takes as much effort to fight a reasonable request to do the right thing as to do the right thing – which one do you want to live with?

  3. totally agree with your blog- it is often about choosing the the least awful option given the choices available (I don’t think this is acceptable but it is a fact of life in MH services at the moment). The only thing I would say is that on many occasions it is not just not possible to draft in some extra staff on to a ward – most acute wards are running at 25% under their designated staffing levels daily as there just aren’t the people to bring in. We rely on bank and agency staff to make up the numbers every day – staff are stretched close to breaking point. Would it still be the least worst option if the 16 year old had been admitted to a ward that had gone over its bed capacity and had subsequently managed to seriously hurt herself because of inadequate staffing levels?
    the Parity of Esteem phrase rolled out by politicians makes me cross every time I hear it- year on year cuts have decimated the services.

    1. I think the above comment shows the problem exactly,in these circumstances the NHS would have to take on short term staff to ensure she was kept safe. Surely that is a far far better solution than keeping her in police custody. I think every person of influence in NHS Trusts probably need to spend 12 hours or so in a cell in a custody suite, after being detained forcibly in the street, restrained and put in handcuffs at a weekend, to see what it is really like.

      1. Judy my point was that we physically can’t get the staff- if we could just pick up the phone and do it we would- many many times there is just no one that will help and wards run at critically unsafe levels.

      2. So due to poor staffing management the police can be used to bridge the gaps? Fair enough. Next time I’ve not enough officers I’ll call a gynaecologist to sort out a burglary that needs allocating.

  4. Just got home from a day witnessing the carnage that is frontline psychiatry in inner cities. 5 ppl waiting for a bed; all psychotic, all detained under the act and all likely to wait a long time/ be admitted far away. Criticism of frontline Staff for not prioritising does not begin to understand the pressures ppl are under day in day out involved in these cases. Meanwhile beds are cut further with plans for further reductions spuriously defended by talk of community alternatives. Despite the merits of home treatment it will never be appropriate for all and should be about a genuine alternative – not the only answer. But still the political/social media chatter talks of ‘improving services’. The only things that’s changing are for the worse and / or colours on a pathetic map.

    1. Defending or seeking to mitigating against human rights violations on the grounds of a shortage of economic resources is not a defence. As I’m making a legal argument about legal obligations, the “you don’t realise the pressures” argument cuts little mustard, quite honestly.

      I am sure it’s really hard for staff – I’m also sure that the very real pressures upon them are not first on my list of things to care about most whilst we’re busy goaling the unwell.

      1. The 5 are not detained. Otherwise unfortunately they would already be far away. It’s a legal process, pink forms & all!

        While I am not going to disagree with the police man & am not seeking to mitigate or cut mustard – if only it was that easy, I can do that with a blunt knife or even with my bare hands. But I cannot produce a psych bed. I can seek to be decent & caring & honest but I cannot make up for decades of chronic under funding & disparity of esteem.

        I am on the front line & feel the pressure & am really beginning to feel the sting of criticism that is being aimed at us. I might very well be being overly sensitive but the vast majority of us are trying our very best. We are not an amorphous group of uncaring individuals. Just like those of us who have mental health issues we are not all the same. We are not a stereo type of villains.

        The 1 in 4 figure means that we as parents, sons, daughters, husbands, wife’s, uncles, aunts, brothers, sisters, friends, lovers, colleagues etc ….. & as users know what this is about. I have seen stuff on twitter & blogs that would have you believe that we are the enemy, subservient to a corrupt & immoral system. We are often as powerless as anyone else in all this & we are also often angry & upset by it. IT MATTERS TO US. YOU MATTER TO US. ESPECIALLY WHEN YOU DON’T CARE FOR YOU OR INDEED ARE UNABLE TO CARE FOR YOU OR OTHERS.

        Maybe we can do more as individuals & lots of people are trying. But it is the whole thing that is not fit for purpose. As an AMHP I cannot produce a bed or make an ambulance turn up ……..!

        Like you I can seek to hold people to account, I can blow a whistle & stick my hand & head above the parapet. But I cannot fix it. I can maybe with you (everyone) be part of fixing it.

        Let him/her or organisation without sin cast the first stone ………. No organisation/s is without bad apples or always gets it right. Indeed sometimes they do it on purpose …… But that is perhaps another conversation.

        Many of my colleagues are fantastic & work really hard to do the right & legal thing.

      2. Well said – they’re not detained at all. They’re actually free to leave. Had another police force ring me today about a protracted delay in accessing a bed, creating a condition of illegal detention in an area where we know things were going casually, in legal terms. I’m amazed there aren’t more legal actions about this stuff, I really am.

        Take heart, though – what criticism is perceived, it is directed towards those who’ve made the strategic conditions within which you’re struggling. I voice them in this way, in roughly your direction and that of others, in the hope that you can use some of the points being raised in discussion with your managers. I do know, that frontline mental health professionals doing this, has helped in some areas where potential legal liabilities have been flagged by the police. I spent the last two days training IPCC investigators in what to look for in joint operating protocols when they are investigating serious police complaints. Obviously, sometimes complaints occur because the police stuff things up – fair enough: that’s down to us. We also know that some police complaints occur because officers were doing exactly the right thing and it went awry, or they were doing exactly what the local MH trust would prefer them to do, written down in a joint protocol that wouldn’t survive contact with the legal system.

        I offered the view that where IPCC investigations occur into MH related complaints and areas’ joint protocls were non-existant or sub-standard, the IPCC should make their view known and recommend to the force concerned that they improve it. It would assist forces achieve leverage with MH trusts that they were being directed by a statutory body to change policy.

      3. Then you can fall into line with the politicians and chattering classes on social media commenting on ideals which currently are miles away from the reality on the ground in some areas. Jump off that high horse and maybe try to understand what it would be like to be overwhelmed with seriously ill risky individuals on a day to day basis often lone working with no beds and an expectation that YOU find a bed right away. It reminds me of a recent incident where 10 yes 10 police officers arrived with a 136 detainee in cuffs, leg shackles etc and wanted to leave nay demanded to leave said individual alone with 1 middle aged nurse in a room. They could not believe there no other staff available/ no backup and at that moment I realised the differences in working between cops and frontline nurses. Would police have a recently seriously violent individual walking around the police station while the 1 staff member on duty was expected to watch him, interview him, keep everyone else safe along with the day job of finding beds for other admissions, attending incidents etc etc. Denying the reality of frontline mental staff and equating it with your very different experiences is crude and somewhat naive.

      4. There those police go again: expecting compliance with laws and agreed national standards. Asking, no demanding, that health professionals do what those very professionals’ health managers and unions said they’d do.

        The irony of this is that you’re barking invective about this and complaining that frontline police officers wouldn’t just do what you’d prefer they did because the problems that frontline mental health staff face are, you infer, caused by political or more strategic decisions about funding and services.

        Of course behind the police officers’ decision-making are senior officers with their priorities which are all too often compromised because half a police response team is dealing with preventable mental health crisis incidents and filling gaps in NHS resourcing.

        Fair enough when the opportunity presents itself but I rather object to being told what to prioritise by mental health professionals who have been known to demand we do what they said they’d do, even though their resourcing crisis is often the ten month most important thing to manage on a list of things to do now that I can only address three at a time.

        Oddly enough, police resources are also finite so sometimes officers are entitled to work out whether mental health services may be able to take on and do nothing more than what they actually said they might do and what the law requires.

        The reality is that sometimes the police run short of resources: I didn’t see any mental health nurses offering to help out with our demand management by going out in the early evening to do court witness warnings.

      5. This makes me realise beyond all doubt that you don’t know what the police do in police stations. I make no apologies for demanding that NHS services act lawfully – if your reality is different, I suggest you take up very forcefully and directly with your managers or via your unions. But irrespective of whether you do or whether you don’t and whether it works: what you can’t do is expect others to agree to tolerate human rights violations. Although it’s interesting (to say the least) to watch you try on a public forum.

    2. Sectioned Detention- I have never asked the police to ‘bridge the gap’ and really don’t see why you think sarcasm adds to the debate as it shouldn’t be a race to the bottom. We don’t get overtime and haven’t done for years by the way. there are just not enough beds if your police cells were full would you double up on the occupancy?

      “New figures we obtained from mental health trusts show that 468 beds have been closed over the past year, bringing the total closures to more than 2,100 since April 2011. And fresh data on bed demand shows that admission wards for acutely unwell adults have run at an average monthly occupancy level of 101% for the past two years. Several trusts have hit occupancy rates of over 120% some months. The recommended level is 85%.” community care.

      perhaps some successful cases at the European Courts will change this- then something good will have come from bad situation

      1. You may not have personally asked police to bridge the gap but if police housing a being responsible for a child due lack of beds isn’t us bridging the gap the what is? Or how about returning AWOL patients when their location is known? Besides how can it be a race to the bottom when we seem to already be there?

        What if our cells are full? They often are, the difference is we have contingency plans in place should it happen and an neighboring force would step in. MHC has written about this in previous blogs.

        Finally I don’t want cases to go to court fr them to tell us what we already know we should be doing.

      2. If i may police cells were full, wed use neighbouring custody areas but when they were wouldnt rule it out accepting that there are other options too. And we sometimes have to resort to them.

  5. So can we stop worrying about ‘parity of esteem’, ‘stigma’, ‘recovery’ etc etc and focus on the fact that some patients need hospital beds, sometimes for longer than is convenient to save their lives…….and that this must be a/the priority

    1. and frequently these days (like this morning) there are just NO beds available anywhere in the country (private or NHS) – all leave beds have already been occupied by admissions over the weekend and the 136 bed is in use- where does the next person go? I wish I had an answer but I don’t as all the options seem pretty dire to me.

      1. JK I can’t ride a horse & have not often been described as a political – so I will assume that your last comments were aimed at the boy in blue. U take care.

    2. Don’t know about the individual in that particular case, but I have a friend, young woman, who has in the past been very resistant when detained by the police under s136, or conveyed s2, s3. Handcuffs, restraints, multiple police officers to deliver her to hospital, but isn’t violent, just keen to escape. Please don’t assume that someone is violent because it takes a lot of police to deliver them safely.

    3. Thank u Mr MHC & I had much the same converstion. In the particular instance the issue was not just about the bed – though if one had been available followiing on from the MHA Assessment the matter would not have come about.

      There appears to have been some misunderatanding about the legal process regarding the MHA & MHA Assessment. The actions/decisions of police officers based on lacking of understanding contributed to the mess. We were able to improvise a solution.

      Sectioned Detection – it does also work both ways. The police are not always able to deploy/resource what you might consider legitimate demand & I am not just talking about MH jobs. I have seen officers overwhelmed & withdraw from public disorder incidents & in my own experience, as a victim of crime been less than impressed by police & CPS & court etc. I have also been in a police control room & seen the never ending logs/jobs so Plz don’t take this as a blanket criticism of the police. I could regale you with many positive stories also.

      Currently colleagues of mine are attempting to co-ordinate the execution of 135(1) Warrants & the delays there in from both the MH Trust providing a Place of Safety/bed & Police & ambo is not acceptable.

      1. AsifAMHP,

        You quite right and I’m the first to criticise the police response when they have done wrong, 135 warrants being one of them. We spent years saying to MH teams “can’t do anything without a warrant” so they start getting them and we still don’t do anything (well we do but very slowly). However we are acutely aware of our legal obligations (a charge of misconduct in public office tends to focus the mind) and will make them a priority.

        On a lighter note the extra £2bn the NHS are getting should sort it all out! **he said with tongue firmly in cheek**

    4. so have you ever had every cell in the country filled because that’s what’s happened with the beds in acute – not a bed available anywhere earlier this week. trying to provide care in such conditions is difficult enough but being blamed for the mess created by others makes it even worse.

      1. Always keep your sense of humour.

        Me trying v hard to avoid the miscoduct charges for anyone. But I am tempted to ask a friendly police officer to consider Sec 129.

        Twice this week, I am personally aware of your colleagues making decisions that would be open to legal challenge. Conversely their (& your)colleagues have supported the improvised solutions & we probably won’t end up in trouble. Multiply that across the country & there is an issue. 2bf I think it’s unreasonable to expect response officers to know it all, although maybe the custody sgt should know more.

        I have revisited & pointed others towards the Code of Practice (CoP) this week – again. The MHA & the CoP are very good places to start. It amazes & disappoints me when your realise just how many people involved in all this have know idea what these say! & I am not talking about police officers!

        Anyway you take care

      2. Certainly individual forces have faced this and because they have contingency plans (as required by law) they get activated when capacity is being outstripped by demand.

        You cam bend this one whichever way you like and if you want to take personally evidenced observations that relate to health organisations as a whole, that’s up to you. At the end of all that, what’s more important than any of us is the public we all serve and when their legal rights are violated we’re going ti have to take it kn the chin.

        Plenty that has been alluded to shows the police gets things wrong: it’s important that we’re all professional enough to accept the role we each play in our organisations where people have been let down. Do i agree with every policy decision in policinh taken by Chief Constables? – no. Do I have to acccept that where these decisions negatively affect the public and partners I might end up on the receiving end of the feedback whether I like it or not? – yes.

  6. Re amhp comment. Come and work in central london and I will show you many ppl on a daily basis waiting for a bed , sometimes forms completed which subsequently are changed when bed elsewhere is found. Sometimes after an individual has spent nights on a sofa with only the professionalism of staff finding blankets, acquiring food etc to keep them going. Though like yourself I find the sniping at frontline mental health staff tedious in the extreme and often completely at odds with the realities of the job.

  7. This is a powerful incident and I am reassured that Michaels excellent blog has prompted such a response, as it shows that people are of course, very concerned about the current pressures and levels of resource in Urgent Crisis Care, especially involving the young.

    I go to so many meetings within London regarding Mental Health, with various partners and statutory bodies. I continually hear a re-occurring message about beds and that Mental Health Trusts, CCG’s etc want to reduce beds or plan in future years, to reduce beds further. Bearing in mind the recent media stories about beds and the various figures quoted in the media around reductions, is there a time where someone will actually map the ‘demand’ and say STOP!

    I agree with a comment made by someone above, that of course in many cases, care in the community or with the support of a Home Treatment Team is just not suitable. Some, many patients, need care and support by being placed in a ‘bed’ on a ward. Should we keep shrinking this facility? Is it time to say STOP! ?? Taking into account the ‘Parity of esteem’ debate with Physical Health Care scenario’s, it’s like reducing the beds on a ward which manages cancer patients, or those with heart disease. It’s just not appropriate to keep cutting beds.
    “But it’s not just about beds.” ….that’s another thing I hear in various meetings from senior health officials. Of course its not, but sometimes it is just about getting the appropriate care to someone who needs it, a bed may just be that appropriate response. If beds are reduced further, does that not mean that fewer opportunities are available to treat patients who need that care?

    A very similar incident to that described in Michael’s blog, could have occurred in London recently. Similar circumstances, but police officers waited outside the Place of Safety with the person who was a young person (under 18). Hours ticked by before the Place of Safety accepted the person. There is an apparent lack of understanding about Place of Safety provision when it comes to dealing with the young and what can or cannot be done, where’s the right facility?

    ….I can assure you, it’s not a Police Cell. Anywhere but!

    That’s the message I hope people who read this blog and who read the associated messages walk away with. No young person should be detained in a police cell who is mentally unwell. So what we all going to do about it, to ensure it never happens again? Locally, are there things that can be thought about now, to ensure staff are aware of what to do. What’s the contingency? ….is there one?

  8. I’d be interested to know how many times police stations have found themselves with not one single spare cell, whether that be in the neighbouring county or four hundred miles away. Are there stats available on this? It’s an interesting comparison.

  9. I am just a relative/carer but what always astounds me is that the MHA and Code of Practice are very clear. So surely services should be designed and operated to meet their requirements. My day job is financial services, if we don’t operate in line with the laws and regulations that govern our business people get fired and go to prison. Why is mental health different?

  10. Hi Judy – less of the just relative/carer plz.

    Unfortunately I see the MHA misunderstood & CoP ignored everyday & no one held to account 😦

    In terms of financial services – my better half also has a proper job with a large financial services company & while we have seen the odd person/boss held to account I am yet to be convinced that the FCA is up to the job.

    I am nearly an old fashioned socialist & redistributor of wealth at heart & know when profit is the bottom line & motivation to be vigilant.

    Why is MH different? I would content that its even more important than £s because it’s about real peoples lives. But I guess that its a much bigger conversation ……….. take care.

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