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.


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

Winner of the Mind Digital Media Award.


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10 thoughts on “Consequentialism

  1. If police officers took someone into custody & discovered it looked like they had a broken leg, would they take the patient to hospital? I hope so. Leaving someone in the cells in mental distress waiting for the NHS to take over seems cruel.

  2. In our trust the latest wheeze is to never admit to not having a bed available. A phrase is used which skirts around the issue but will hopefully,from the trusts view, remove them from trouble should the proverbial hit the fan, this in a trust planning further extensive cuts in beds and crisis teams thanks to cuts in funding. Staff completely demoralised and the more capable ones fleeing to other sexier areas such as primary care mental health or psychological therapies where the risks are much less and the funding much greater. Really worrying times ahead.

    1. I don’t know what area you live in but from what I hear on the ground what you say could apply most places in the country. Certainly is a good description of my own area. Staff are leaving in droves and it seems to leave the incapable and compassionate-less in charge. I get the feeling that the crisis team are so stressed that it won’t be long (if not already) that they will be supporting their own suicidal staff.
      As a service user I feel nothing but despair added on top of my depression lead despair that I will be able to access appropriate treatment. People like MHC keep on shouting along with the more capable service users and still nothing changes. I was asked yesterday by staff to raise an issue because the Trust is more likely to take notice of you than us.

  3. Several hundred years ago doctors lobbied to take over the asylums for money. They got the job instead of lay people and started looking for mental illness. Well…. they were doctors. Jump forward a few hundred years and its obvious that what we are looking at are social not medical issues. What seemed reasonable a few hundred years ago is just junk science. Ok… we are where we are…. psychiatric thinking has permeated the criminal justice system with a contaminant effect that leaves us with the horrible mess we have now.

    Social control dressed up as medical matter was never going to work out but no one was to know that.

    I feel sorry for the police because the mental health system, which is really a control system and has very very little to do with helping people (of course thats what mental health staff want to do…. its just not the actual unstated public mandate)….. sorry. I’ll start again. I feel sorry for the police who are increasingly left holding the baby here because by and large they work in a transparent and publicly accountable way unlike mental health services which work to an unspoken public mandate that they covertly carry out in the guise of medicine.

    The only way to end this mess involves getting rid of the insanity defence and other assorted mental health laws.

    I can’t see it happening any time soon. Not least because the “profession” of psychiatry has it head in the sand or just prefers to keep it in the sand because while most of them know its a mess untangling psychiatry from the criminal justice system seems an impossible task.

  4. Another thing…. their is no such thing as a person who is at high risk of suicide…. that is possible to discern. This is pure fantasy…. if it was possible we would be able to identify such people and intervene but the sad fact is people are much more complex than the medical model suggests. All pretence and talk of risk assessments is pure guff. Psychiatrists are sadly expected to be able to predict the future behaviour of human beings mystic meg style…. and its not possible…. no amount of training will ever make it so. It can not be done. But the game goes on. People sleep sound in their beds safe knowing that their friendly neighbourhood psychiatrist knows who is crazy and who is not and who might kill themselves and who wont and who will take up a musical instrument in the next six months…. no not the last one…. but the point is its just as silly as the predicting suicide guestimate….

    Its a mess.

  5. Already commented on next post – but what do you suggest? Ignore everyone who is ill? Leave them to be psychotic? Leave them to commit suicide?

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