What right do we have to call ourselves civilised?

By Caroline Hurst, Chartered Legal Executive. Court of Protection Department

On 3 August 2017, Sir James Munby handed down a judgment which has sparked a public and media frenzy. It was an extraordinary attack (at least from a member of the judiciary) on the government for the dire lack of mental health provision – in this case to meet the needs of a 17-year-old girl.

X is 17 years old. On 15 June 2017, Sir James Munby made a care order conferring parental responsibility on the Local Authority. At the time the order was made, X was detained in a secure unit (referred to as ZX) pursuant to a Detention and Training Order, handed down by the Youth Court. She is due to be released from the unit on 14 August 2017.

Unusually, in this case, the care order was made without there being a care plan in place for X when she is released from ZX.

A number of assessments were carried out on X throughout the course of the proceedings; the primary assessments relied on in this case were carried out by Dr Oppenheim. It was her view that X has an insecure attachment disorder, emotionally unstable personality disorder, attention deficit hyperactivity disorder, conduct disorder and borderline learning difficulties. Dr Oppenheim was of the view that X did not fulfil the criteria for a psychiatric diagnosis of mental illness. She further concluded that the diagnoses did not constitute an impairment or disturbance in the functioning of the mind or brain such that she would lack a capacity to make various choices and decisions (although there is no evidence which identifies on what decisions the capacity assessment addressed).

It is well reported that X has attempted to commit suicide on a number of occasions whilst at ZX. These attempts were concerted and have increased in severity. The guardian appointed by the court for the purpose of the care proceedings, witnessed X repeatedly banging her face and head against the wall. The guardian said of the incident “I have never seen or heard anything like it in my 32 years of practice.”

A number of emails and reports were provided to the court from ZX, many of which painted an alarming and increasingly dangerous picture for X. For example they state:

“X’s goal is not to go to her home town, it is to kill herself”

“The care plan to send her back to any community setting, especially her home town, is a suicide mission to a catastrophic level”.

Details of the measures that X is subject to in ZX make for very sad reading. X is subject to 2:1 support with constant observation. Once asleep, she is subject to 1:1, again constant supervision, and at any time that X may wake up during the night, the support reverts to 2:1 again. Her bedroom can only be described as a cell with nothing but a mattress on the floor.

It was concluded following a number of assessments that X needed to be accommodated in low secure mental health provision. However, there were none available at the time of Sir James making the care order. A further hearing was listed to provide more time for the various statutory agencies involved, to attempt to secure a placement for X.

At the end of the judgment, in June 2017, Munby states:

35. “…If the fears of ZX are well founded…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?”

As is now evident from the judgment released yesterday, no placement has been found for X. It is therefore now a real possibility that she will be released from ZX with nowhere to go and no service in place to provide any type of mental health input or to keep her safe. The potential of what may happen does not need identifying here. Safe to say it would be devastating.

There are just six placements in the country of the nature which X requires. The only identified placement which would be able to support X has a six-month waiting list.

The recent judgment of Sir James notes the following alarming level of interventions: restraints have had to be used on 117 occasions since X was placed at ZX; there have been 102 significant incidents of self-harm; 45 assaults; 25 attempted assaults; and 16 incidents of significant damage to property.

Absolutely appropriately, in my personal opinion, Sir James set out his frustration and incredulity in the judgment. He describes the lack of appropriate provision as “an outrage”.

I set out paragraph 37 of his judgment, in its entirety because I believe it sums up the strength of public feeling in this topical and highly sensitive area:

“What this case demonstrates, as if further demonstration is still required of what is a well-known scandal, is the disgraceful and utterly shaming lack of proper provision in this country of the clinical, residential and other support services so desperately needed by the increasing numbers of children and young people afflicted with the same kind of difficulties as X is burdened with. We are, even in these times of austerity, one of the richest countries in the world. Our children and young people are our future. X is part of our future. It is a disgrace to any country with pretensions to civilisation, compassion and dare one say it, basic human decency, that a judge in 2017 should be faced with the problems thrown up by this case and should have to express himself in such terms.”

He further adds in paragraph 38:

“…If this is the best we can do for X and others in similar crisis, what right to we, what right do the system, our society and indeed the state itself, have to call ourselves civilised The honest answer to this question should make us all feel ashamed.”

It is a stark summary of the current state of mental health provision in this country. This is a situation which many practitioners (including those in our mental health and child care law teams) face every day (although not always at such a severity as with X). The scarcity of resources means that people like X end up back in the community without the support which is identified that they need and many end up in the criminal justice system, or indeed worse.

Scarcity of resources, whether that be financial or in terms of staff, sadly means that we are left in this type of situation all too often. Not just in relation to young people, but across all age ranges. All practitioners in this area can do is to hope that those with the power to make a difference, sit up and take heed of what Sir James has said and attempt to fix this very broken system, or else it may well be the case, as Sir James points out, that “we will have blood on our hands”.


Disclaimer: The contents of this article are for the purposes of general awareness only.  They do not purport to constitute legal or professional advice, and the law may have changed since this article was published.  Readers should not act on the basis of the information included and should take appropriate professional advice on their own particular circumstances.