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?!
WHAT COULD THE POLICE DO?
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".
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