An impossible decision
Doctors make decisions and are mainly used to making difficult decisions which involve not simply clinical facts but family, ethical, legal and societal factors. Nevertheless, we are lucky to have an ultimate fall-back, the legal system, when decisions are ‘impossible’. In England and Wales, this is the Court of Protection which, fortunately, has some exceptionally talented, humane, thoughtful judges working in it. This recently published judgement (14th July 2021; here) illustrates everything well. Additionally, this particular judgement records a judge struggling with his conscience and values when faced with a decision where no outcome was remotely acceptable. The background illustrates the failure of the government of a rich country to show concern for the poor, the weak, or the vulnerable members of its society. I will draw attention to some parts; I recommend reading the whole judgement but only when you feel strong. The case is an extreme examplw of the challenges faced in rehabilitation referred to in expert capability five.
Table of Contents
Preamble - from the judgement
I will start with paragraph 64 from the end of the judgement:
“Judgments given by a court should be sober and measured. Superlatives should be avoided. It is likewise prudent that a judge carefully police a judgment for the presence of adjectives. However, and as the hearing proved, in this case it is simply not possible to convey the appropriate sense of alarm without recourse to such language. In this case, having observed that in his thirty years at the Bar he had never been in a position of having to ask a court to authorise a regime for a child “as shameful as this one is”, Mr Martin conceded on behalf of the local authority that, boiled down to its essence, his submission was simply that the court must today prefer the lesser of two acknowledged evils, the hospital ward or the street, in circumstances where there is currently no alternative placement. But that is not a solution that can be countenanced in a civilised society. The test laid down by the law is not which is the lesser of two evils but what is in the child’s best interests having regard to the child’s welfare as the paramount consideration. The ‘parens patriae’ inherent jurisdiction of the court is protective in nature. As I have observed above, it would border on the obscene to use a protective jurisdiction to continue Y’ current bleak and dangerous situation simply because those with responsibility for making proper provision for vulnerable children in this jurisdiction have failed to discharge that responsibility.”
To this I will add paragraph 71:
“However, the foregoing provisions of the ECHR and the UNCRC, and the case law arising out of those provisions, once again highlight the obligations on the State to make proper provision for the physical and psychological recovery and social reintegration of children who have suffered neglect, exploitation, or abuse.”
The case involves a boy known as Y, now aged 12 years. The information given here comes from the judgement, and I have no other information. The main features appear to be as follows. For each segment, I will add a brief comment in italics.
His father is said to have attention deficit hyperactivity disorder, and his father states that he, too, was abused and suffered a traumatic childhood. He attributes his attention deficit hyperactivity disorder to his childhood. He also uses cannabis.
It is well established that parents who suffer abuse or other deprivations in childhood are more likely to abuse their children. SureStart was a support mechanism started about 20 years ago, but it has been ‘defunded’ by our Government since 2008. The evidence suggested that SureStart reduced poor parenting in vulnerable families.
The boy, born in 2009, first came to the local authority’s attention in 2011 when aged two years. His father was abusing drugs and alcohol, being violent towards his mother, and making many threats. He was under a child protection plan for four years but still suffered unexplained injuries. In 2015 he was taken into care.
The continuation of a risky situation, with evidence of harm, probably arose partly because foster parents are scarce and do not receive sufficient financial and practical support to encourage taking on more challenging children. At the same time, available resources from the government were being cut so that monitoring would have been easier because there needed to be more staff and an increasing caseload for departments.
He returned to his father in 2016 after an assessment made by someone using a Parents Assessment Manual referred to in the judgement as “a positive PAMS assessment”. This particular assessment was developed to assist in evaluating parents with a learning disability (here); it does not sound appropriate when the parent has problems with alcohol, drugs, and control over his emotions.
It is concerning that an assessment of a person’s parenting ability was made based on a test designed for people with a learning disability when the parent concerned has a different kind of problem. This reflects a drive to standardise assessment in the mistaken belief that a standard review is better than a targeted assessment by a skilled professional. It also reflects the general process of devaluing professional expertise that the government has followed over at least ten years across all professions.
In September 2020, he was again placed under a child protection plan until May 2021. Matters deteriorated, and the boy started self-harming and being violent. On July 1st 2021, he was placed in a residential placement under an emergency protection order. On July 3rd, he attempted to strangle himself and was admitted to the hospital, where he was unapproachable because of his aggression.
For four years, from the age of 7 to 11 years, he lived with an abusive father without, it seems, any support or supervision despite documented previous harm.
He remained in a paediatric ward from 4th to 14th July 2021, needing doses of major and minor tranquillisers, physical restraint (15 police present on one occasion), locking doors, and removal of objects to reduce the risk of harm to himself or others.
The legal case
The case came to court to decide for the hospital, who were asking whether they could continue to hold him against his will on a children’s ward; it was a Deprivation of Liberty Safeguarding question. It was set out in the judgement thus in paragraph 4:
“Wigan Metropolitan Borough Council applies for an order authorising the continued deprivation of Y’ liberty on the hospital ward, that application having been issued on 6 July 2021. Y is also the subject of care proceedings under Part IV of the Children Act 1989, issued on 1 July 2021. On 8 July 2021, the Designated Family Judge for Greater Manchester, Her Honour Judge Singleton QC, made Y the subject of an interim care order and an interim order authorising the deprivation of his liberty and re-allocated this matter to me for hearing.”
Some of the issues raised in the case will now be discussed.
Does Y have a mental illness?
His behaviour is the main problem: he self-harms, hits out, threatens and attacks people, destroys property, he does not cooperate with anyone. He has not had any overt brain injury, nor does he have any known brain disease. There has never been any suggestion of learning disability or cognitive impairment. Nonetheless, his liberty is being restricted by a Mental Capacity Act 2005 process, not through the Mental Health Act.
He was assessed for mental illness. The judgement records (para 21):
“On 7 July 2021 Y was seen by an Approved Mental Health Professional (hereafter AMPH) for a formal mental health assessment. The AMPH sought to engage Y as a means of conducting her assessment, which commenced at 1pm on 7 July 2021. During the course of their exchange Y stated that he wanted to sleep on the streets and did not want to go home as he wished to kill his father and himself. Y informed the AMPH that when he self-harms it is with the intention of killing himself. When asked if he wanted to see or speak to his father Y became agitated and began to place objects in his mouth. Thereafter, Y became highly agitated, managed to kick the door of the ward open and attempted to abscond. Y became aggressive to staff and attempted to damage property. He was restrained by security staff. Once back on the ward Y became highly aggressive again and the police were called. The police officers were required to restrain Y and he was given a dose of rapid tranquiliser. Y made further attempt to harm himself at a later point by putting a carrier bag over his head and wrapping it tight. He was restrained for his own safety and passed out. When he came round he started banging his head against a wall and again attempted to kick down the ward to the door. Y attempted to punch the security staff and spat at them.
The outcome of the mental health assessment by the AMPH was that Y was not detainable under s.2 of the Mental Health Act 1983 and did not require a Tier 4 bed. This conclusion was reached based on the view of the AMPH that Y’ behaviour was “trauma based”.“
The assessor refused to assess again, but has since relented; at the time of the judgement no further assessment had been undertaken. The Mental Health Trust would not assist. The judgement records: “the mental health Trust asserts it was not in fact commissioned to provide such staff to the hospital Trust but attempted to do so as “a matter of good will””
The judge wrote: “Within the foregoing context, the case law arising from the Mental Health Act 1983 highlights the difficulty that can arise in seeking to distinguish between psychiatric illness and the psychological impact of trauma. The difficulty in making the distinction between psychological distress consequent upon trauma and symptoms amounting to a diagnosable psychiatric illness were noted by the Court of Appeal in R v D  EWCA Crim 1139 at ” followed by a quotation from the judgement at the link above.
This is the first time that I have heard that the cause of a mental health problem determined exclusively that a mental health problem was or was not a mental illness. What trauma, and how much? Trauma of a single short-term event, or a life-time of trauma. Physical trauma, or psychological trauma? Much depression and anxiety can be traced back to a trauma, if one wishes to do so. Given that all illness is multifactorial, does trauma have be account for 50%, 70% or how much, and how is that judged. My cynical side thinks this is an easy way to abrogate responsibility.
What the judge chose not to say is perhaps more telling. It is quite obvious that this boy’s illness (if it can be called that) is going to cost someone a large sum of money over any years. If a mental health organisation makes a diagnosis of a mental health condition, responsibility for funding care will pass to that organisation, probably for the lifetime of the patient. It is hardly surprising that an organisation that is already under-resourced would avoid, if possible, willingly and knowingly accepting responsibility for a very costly patient when there are arguments that can absolve them of that responsibility.
In cases such as this, and they are quite frequent in rehabilitation services seeing people with acquired brain injury, one sees a game (!) of ‘pass the parcel’ where everyone tries to avoid receiving the ‘parcel of responsibility for long-term care’. Patients do not ‘fall through the gaps’, they are ‘pushed through the gaps’, however small the gap is.
The only resolution to this difficulty is for the money needed to be allocated to the patient and to go with the patient, whoever takes responsibility. Further, this resource needs to extend across all organisations, but especially between health and social services. In this case education will also need to be party to any resource available.
Mental Health Act of Mental Capacity Act
The boy’s case was heard in court in the context of the Mental Capacity Act, and he was held under a Deprivation of Liberty Safeguarding Order which allows deprivation of liberty. It does not require a treatment to be available (in contrast to the Mental Health Act); indeed it does not legitimise treatment directly, only through a best interests process.
Was it, and is it still appropriate to hold him under that Act? He could easily be described as having “an impairment of, or a disturbance in the functioning of, the mind or brain” in that his behaviour was well outside what could be considered normal for a 12 year old boy.
Of course, it could be argued that it is normal for any child who has suffered what he had suffered to act in this way. But if a boy is knifed in the stomach, and screams with pain, do we say “Oh yes, well that is normal when you have been stabbed.”? And do we say, “Oh yes, it is normal to bleed excessively from a stab wound.”? No, and nor should his unfortunate past be a cause that disenfranchises him from receiving proper care.
Another Judge had decided on July 8th that it was appropriate to hold him under the Mental Capacity Act, if only because there was no option of holding him under the Mental Health Act. Furthermore, in this judgement, there is no dispute or discussion about the appropriateness of considering the decision in the context of the Mental Capacity Act.
Nevertheless, the judge does highlight the difficulty in managing cases in this large boundary Zone. The recent consultation on the White Paper about reforming the Mental Health Act (here, page 61) highlights that there is a problem, but is not proposing any early solution. A piece of research by the King’s Fund which, unfortunately, only consulted people working in Mental Health services, also highlighted the difficulties. (here) I suspect they are more extensive than the King’s Fund report suggests, but the point is made.
From the perspective of this case, there are several major problems with using the Mental Capacity Act. It cannot be used to move someone to a safe place, but only to keep him (or her) there. It cannot be used to authorise treatment, but if capacity is lost for treatment decisions, a best interests mechanism can be used. There is no service or budget to fund people deprived of their liberty under the Act; no-one has responsibility for funding necessary care.
Does Y have an illness?
If it is agreed that Y does not have a mental illness, and I find that position challenging to accept, then the next question is whether he has any condition. Being considered ill would enable him to be cared for by health services.
I note, first, that when he presented to the hospital, there was no debate: he needed acute health care, and, on the advice of a consultant psychiatrist, he was admitted as an emergency to a paediatric ward. He is still considered to lack capacity and thus must have an impairment of his brain or mind which, indeed, is a health condition and therefore means he is ill.
Putting aside the argument that lack of capacity means someone has an illness, I will review other evidence.
There seems little doubt that he needs more than just a home. He needs specialised care from a service that can analyse the cause of his behaviour and distress so that he can be helped. Maintenance is also required to preserve his safety and, if possible, well-being and, in addition, to protect others who may otherwise be injured or stressed.
At present (assuming no change since 13th July 2021), he needs skilled care able to use a mixture of interventions: drugs, though the legal basis for using drugs is unclear to me; behavioural interventions, without his agreement and again the legal basis is unclear to me; and physical restraint, again without a clear legal basis.
The professions most likely to be able to help include psychologists, to analyse the behaviour and contributing factors and to contribute to the treatment plan; psychiatrists, to do the same but also advise on medical (drug) treatments; paediatricians, to consider his general, bodily health; nurses with mental health training; teachers to re-establish his education; and probably other professions unknown to me. Except for teachers, these are healthcare professionals.
There is no definition of what constitutes an illness. It is a societal judgement based on two premises: the person has some dysfunction affecting their life, and the dysfunction can be reduced or managed by healthcare services. This boy certainly has a problem, and his life will be saved and, hopefully, improved by healthcare expertise. Therefore I conclude that he does have an illness.
One could indefinitely dispute the cause because there is no one cause. The illness has a multifactorial genesis, resulting from 12 years of very unsatisfactory parental and societal care and support. The avoidable lack of social support services for him and his parents is the cause.
Having concluded that he is the responsibility of healthcare, the difficulty is that the only section of healthcare that could help him will not accept responsibility (i.e. mental health services), probably because they are so under-resourced that they could not even help if they did take responsibility.
The Local Authority (Social Services)
The judgement makes it quite clear that responsibility for this child lies with the State, and that means the government as they represent the State:
“Within this context, the court has discharged its duty, applying the principles the law requires of it, to give its considered answer on the two questions that fall for determination on the local authority application. That answer is that it is not in Y’ best interests to authorise his continued deprivation of liberty on a paediatric ward. The court having discharged its duty, the obligation now falls on other arms of the State to take the steps required consequent upon the courts’ decision, having regard to mandatory duties imposed on the State by statute and by the international treaties to which the State is a contracting party.“
In the immediate future, this responsibility will fall on social services. However, as I established earlier, this boy needs (will benefit from) input from a healthcare team of professionals, and social services need access to this and are in a position to contract healthcare services.
The primary reason that responsibility falls on Social Services is that he is currently placed in a ward where his behaviour has disrupted specialist paediatric care for a whole region. At least three days of operating have been cancelled.
He needs somewhere to live and to be safe. The judge recorded that “despite extensive efforts that have ranged across a search of regulated residential placements, unregulated residential placements and the secure accommodate estate, the local authority has been unable to find an alternative placement for Y, let alone one that is appropriate to his extensive and highly complex needs.” This is now a common situation facing clinical teams and courts.
The Judge also highlights that the State (i.e. the government) are ultimately responsible:
More widely, and again as made clear by Sir James Munby in in Re X (No 3) (A Child)  EWHC 2036 at , Arts 2, 3 and 8 of the ECHR impose positive obligations on the State, in the form of both the local authority and the State itself. Art 2 contains a positive obligation on the State to take appropriate steps to safeguard the lives of those within its jurisdiction where the authorities know or ought to know of the existence of a real and immediate risk to life. Art 3 enshrines a positive obligation on the State to take steps to prevent treatment that is inhuman or degrading. Art 8 embodies a positive obligation on the State to adopt measures designed to secure respect for private and family life. Pursuant to s.6 of the Human Rights Act 1998, and within the foregoing context, it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
Thus full responsibility for this state of affairs lies with the government, which have cut Local Authority funding, commercialised the provision of specialist care services, reduced regulation, allowed unregulated services to develop, and generally failed a vulnerable section of the population. Platitudes from the Department of Health and Social Care about the amount of money allocated to services are usually not even relevant and never address the fundamental problem.
The judge has acted on his conclusion:
It is, once again, my intention to direct that a copy of this judgment is provided:
- to the Children’s Commissioner for England;
- to Lord Wolfson of Tredegar QC, Parliamentary Under Secretary of State for Justice;
- to the Rt Hon Gavin Williamson CBE MP, Secretary of State for Education;
- to Josh MacAllister, Chair of the Review of Children’s Social Care;
- to Vicky Ford MP, Minister for Children;
- to Isabelle Trowler, the Chief Social Worker; and
- to Ofsted.
I hope that this has interested you and that you are as appalled as I am that one of the wealthiest countries of the world is routinely failing its vulnerable, defenceless, usually poor, usually socially deprived population, especially but not only children. Twelve years of progressive cuts to a myriad of social support services – money, day centres, social workers, housing budgets, care budgets and so on – has led directly to this horrific case. Think about it, and do something (not violent or threatening) to shame our so-called leaders into taking seriously their responsibility to underprivileged and vulnerable members of our society rather than serving the well-off.