Re X (a child) No 3 (2017)

Today, the head of the Family Division has handed down a judgment containing some of the most extraordinary language I’ve ever known a senior judge to use, questioning whether the issues before him mean we can lay claim to being a civilised society and warning that we may soon “have blood on our hands.”

WOW! …. just WOW!!!

It concerns the case of a 17yr old young woman, currently detained under criminal law after being sentenced by a Youth Court and who is due to be released from that secure custody location 11 days from now – the 14th August. It is agreed by prison staff, mental health and social care professionals that she requires admission to an inpatient mental health unit for further assessment and treatment, one estimate being that she may need to be there for as much as two years in the opinion of the Consultant Child and Adolescent Psychiatrist who wrote a report. It is further agreed that she poses and real and imminent risk of suicide if released, staff fearful that she wouldn't be alive more than 24hrs or so. I’d encourage you to open the ruling and read it: it's quite remarkable, not least because Annex A to outlines the current lengths the custodial staff are having to go to, to keep her safe. Highlights of this include, constant 2:1 observations at no more than arms length at all times, 8 staff on standby to restrain her and it outlines various risks and issues which give rise to the need for this level of intrusion. Trust me: the previous sentence you've just read doesn’t even get close to outlining to scale and depth of challenge for staff attempting to keep this vulnerable young woman alive.

X, as she is known in the legal rulings, requires a low-secure adolescent psychiatric bed that is not available. There are six of these facilities in the country and all are currently full. None anticipate a bed becoming available in the next few months and the clock on that sentence is ticking down with just 11 days remaining. In today’s judgement, Justice Mumby refers to his own second ruling from June in which he states that unless some progress is made, he "we should be left with little but the hope that the police would have had occasion to take X into custody before she was able to cause herself irreparable harm. Is that really the best the care system and the family justice system can achieve?” (in paragraph 8 of today’s ruling). The judge has directed a copy of the judgment be copied to the Secretaries of State for Health, Justice and Education in addition to the Home Secretary.

But my main area of focus is obviously “we should be left with little but the hope the police …” I can see why he says it, but let’s take that to it’s logical conclusion, shall we?!


Well, we could help kick the can down the road for a bit … if that helped?!

Of course, if X were released the police could get involved in responding to her, but it’s already at least doubtful that decision would survive contact with Article 2 ECHR given the risks. There is a statutory mechanism available today to transfer someone from the ‘prison’ estate to the mental health system: it’s section 47 or 48 of the MHA. Not doing that then releasing an obviously suicidal person begs its own legal questions because the prison service cannot act in a way that fails to ensure convention rights – the right to life being more important than the others in the most immediate sense. Obviously, they're all important. I digress …

So, you could call the police on 999 … “I need officers now to detain someone outside under s136 MHA who is about to be released.” This has happened before around the country and it's usually exceptionally difficult stuff because we invite the police with no planning or knowledge to do as they're told when they're highly confused about what's occurring and why and in the certain knowledge that they're not appropriate professionals to be caring for people, certainly not people as complex and vulnerable as X. But first things first, let’s hope the officers get there quickly enough and actually do encounter her, otherwise we’ve immediately got a high risk missing person inquiry on our hands. Assuming they do, they will inevitably consider section 136 MHA, to remove the young woman to a Place of Safety for assessment. She can be held there for 72hrs, for necessary arrangements to be made. The legal pedant in me wonders whether using section 136 is right when we don't need any assessment of that person's needs.  Section 136 is for the purposes of allowing the individual to be 'examined … and the making of necessary arrangements'. We already know the assessment: it's already been done; we also know the arrangements should have been earlier and weren't.

However, no police officer in the country will be arguing that, they will be wanting to keep X safe but given the judge has spent over a month pressurising the system to no avail and has quite appropriately issued a rocket in today’s ruling, I do admit to wondering whether an extra three days will help us achieve in fourteen days what he’s already worried about achieving in 11 days and which hasn’t been achieved over the last 40 or 50 days. It seems likely that if we get to the point of s136 being used, it will probably expire again without a bed becoming available. We already know from the ruling that the low-secure CAMHS bed is unlikely to become available for several months, according to today’s ruling.

So eventually the poor old custody officer will face the decision that the prison system will face in 11 days time: do we release an obviously suicidal person from custody, quite probably in violation of Article 2, or risk violating Articles 3, 5 and 8 to keep her alive? I must admit, I have some of my own views about just kicking this further down the road to the police instead of considering now those arguments the police will have to consider after 72hrs of s136 when they will be less well placed to do so. It would be an abrogation of an obvious kind. If the objective here is to pursue admission to a mental health unit and that this could happen today under s47 if a bed existed, why not just continue to hold the young person under the current arrangements until that bed emerges? Would section 139 not apply to the prison’s actions?! To be fair to them, it’s not clear that it would as I’m not aware of that argument being tested in court and lawyers seem to disagree. In fairness, though – don’t they always?! Whether prison or police, we could always ask that question, would the organisation rather be sued for trying to keep someone safe and alive, rather than questioned about why they took deliberate decisions which endangered the person because other organisations were unable to deliver on their part of the deal. If things were going swimmingly for this young woman’s transfer to an appropriate care facility, she would not be released at all, but transferred. There is an argument for saying, “Keep her detained and alive, then!” and whilst this is a moral, not a legal argument, I’d be interested to know the reasons why a court would condemn professionals who took this view.

But then it all comes back to the original point: this situation is complex beyond words and if you chose not to do so when I first mentioned it, go and read Annex A of the ruling and ask yourself: are the police the correct organisation to be running in to that unwarned whilst being implored to ‘Do Something!’ … that's all it amounts to. I suspect the police service towards whom this tragic case seems to be heading will know absolutely nothing about it whatsoever and it would seem a contingency plan of some kind is needed in case it comes to that, as the judge seems to fear it might.

Complex beyond words and even more tragic. I repeat: I’ve never known judge’s remarks of this kind in a case like this and I can’t say that I disagree with any of them.

Update (4/8/17) – a bed was found just over 24hrs after the publication of the judge's remarks.

Update (7/8/17) – the ongoing difficulties in making this happen are reflected in a further High Court ruling, "No 4".

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

Winner of the Mind Digital Media Award.


9 thoughts on “Re X (a child) No 3 (2017)

  1. I believe Lord Justice Mumby is retiring soon – I sincerely wish him well.
    It’s fitting that he has expressed judicial and self-righteous anger. I just hope those he has directed his remarks to will actually take notice and, instead of instructing their P.R. departments to churn out platitudes, will take appropriate action.
    I also hope the press publish his remarks and thus put pressure on those bodies who could do much better.
    Tragic for the child in question – a disgrace for the rest of us.
    Thanks for your efforts.

  2. Just a quick thought….although a child/young woman of 17 but with a recommendation from a psychiatrist of a stay in an appropriate unit of at least 2 years…..and with no CAMHS provision, has there been some consideration for a transfer to an adult LSU placement. Such a move will automatically be a safeguarding issue but, as with so many decisions, would this be a lesser bad decision than having to release….

  3. Dear Mentalhealthcop,
    I agree with you.
    And I pray that Justice Munby will be heeded.
    He is a great beacon of hope for our country.
    Thank you so much for your blog.
    Best wishes

  4. Appalling treatment. But we all know that being suicidal and self harming is not enough to get you an inpatient bed once you are an adult (at 18). ….Separately the decision not to move her to hospital a long time ago is disgraceful. But again possibly symptomatic of the way self harm is often treated.

  5. And of course she is in the worst sort of environment at the moment. There is also a real split between how self harm and attempted suicide is treated and how harm to others is. You can be left to harm yourself in ways that would result in immediate action if you were doing it to someone else. I think there is also a feeling that nothing can be done…..whereas medication and therapy ( if needed) can be totally life transforming.

  6. Presumably she will need 2:1 or 1:1 care when she is initially transfered to hospital. This would mitigate any safeguarding concerns from being in an adult low secure bed.

    NHS commissioners seem to always be too far in the background when frontline staff are struggling with dilemmas like these. They further hide behind guidance and policies. Meanwhile the needs of the vulnerable come last.

    I saw the same thing just yesterday in my area where two providers spent hours arguing about who should have the patient whilst they sat detained in a cell. Then NHS England took an age to authorise finances.

    The whole system is not working for the service user and is cronically underfunded.

    It will be disgusting if she ends up in a police cell after 11 days.

  7. Dear Mentalhealthcop
    Your last commentator has just given me a thought – why do all these patients have to be in a “hospital” rather than, say, in a suitably adapted accommodation such as I saw on television where people are housed in safe places with extra supervision and help to get them free from their mental traumas?
    Is such a programme possible for, say, getting care homes to be adapted or say, hotels?
    Just a thought. After all, the professionals do not need a hospital in which to work and nor do patients need to be in hospital for treatment necessarily.
    And it could have wider benefits of trying to address a major problem in our society.
    What do you think?
    Best wishes

    1. In this case because she needs treatment (therapy and medication and ongoing care) which logically can only be given in a hospital.. Hopefully she will then be able to get well and live a happy, independent life.

  8. Dear Mentalhealthcop
    Having listened very carefully to people on television both consultant psychiatrists and former patients, one thing in common is that many do not believe that a mental health unit is the right place at all. And my concern is that if the professionals and end-users feel this way, then surely we should be investigating alternative methods and means of optimal provision for both the consultants and their patients.
    Best wishes

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