Summary: Peter Edwards, director of Peter Edwards Law, a specialist mental health and capacity law firm, considers the impact and significance of the Re X (a child) Cases 3 – 5 before Sir James Munby (the so-called “blood on our hands” case).
1. What’s the background to this case?
In the linked cases, Re X (a child) Cases 3 – 5, Sir James Munby, President of the Family Division, with no power to do so, influenced and put pressure on the Government and NHS England by use of the media.
He directed that his judgment (No. 3) be sent to the Chief Executive Officer of NHS England, to the Secretary of State for the Home Department, to the Secretary of State for Health, to the Secretary of State for Education, and to the Secretary of State for Justice. On the 3rd August, following his comments (below), the case hit the headlines.
“37. 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.
38. … If this is the best we can do for X, and others in similar crisis, what right do 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. For my own part, acutely conscious of my powerlessness – of my inability to do more for X – I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.
39. If, when in eleven days’ time she is released from ZX, we, the system, society, the State, are unable to provide X with the supportive and safe placement she so desperately needs, and if, in consequence, she is enabled to make another attempt on her life, then I can only say, with bleak emphasis: we will have blood on our hands.”
Just how much court time (and cost) had been taken up by this case was made clear when President Munby stated, at the commencement of X (A Child) (No 5)  EWHC 2141 (Fam), that:
“This is my fifth, and I hope final, judgment in this troubling matter. It is being handed down on 17 August 2017. My last judgment was handed down on 7 August 2017: Re X (A Child) (No 4)  EWHC 2084 (Fam). I had previously handed down judgments on 12 September 2016 (In re X (A Child) (Jurisdiction: Secure Accommodation), In re Y (A Child) (Jurisdiction: Secure Accommodation)  EWHC 2271 (Fam),  Fam 80), on 28 June 2017 (Re X (A Child) (No 2)  EWHC 1585 (Fam)), and on 3 August 2017 (Re X (A Child) (No 3)  EWHC 2036 (Fam)).”
The case concerns a 17-year-old woman who had been detained under criminal law after being sentenced by a Youth Court. She was due to be released from secure custody on the 14th August 2017, but the secure unit said that it could not detain her beyond the end of her sentence.
The background was vividly summed up by the President when he stated in judgment No. 3 (paragraph 6) that it was the opinion of the entire staff at the secure unit that “X’s intention to kill herself has ‘intensified’” and that “the care plan to send her back to any community setting, especially [her home town] ‘is a suicide mission to a catastrophic level’. Staff do not think it will take more than 24 to 48 hours before they receive a phone call stating that X has made a successful attempt on her life.”
It was therefore the view of all the professionals involved that she needed to be admitted to an inpatient mental health unit for further assessment and treatment as she posed a real and imminent risk of suicide if she was released. In her current unit she required constant 2:1 observations at no more than an arm’s length at all times, with eight staff on standby to restrain her.
Despite the fact that X required an adolescent psychiatric bed in a low secure unit (LSU), the President was told that no such bed was currently available or was likely to be in the foreseeable future. In judgment No. 3, the President made reference to his own second ruling from June 2017 in which he stated that unless some progress was made:
“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?” 
Furthermore, in judgment No. 3, again making reference to his second judgment, the President stated:
“I could hardly have been clearer, both in describing X’s needs and in stressing the imperative to find an appropriate placement for her before her release from ZX. For all that has actually been achieved in the last few weeks, however, despite unrelenting efforts both by the local authority and by other agencies, I might as well have been talking to myself in the middle of the Sahara.”
Following judgment No. 3, the response from NHS England was that, in the absence of the availability of an LSU, a placement in a Psychiatric Intensive Care Unit (PICU) under Child and Adolescent Mental Health Services (CAMHS) would be the least worst option.
She was transferred on Thursday 10th August 2017. But there is no doubt that without the outrage in the media, this would not have happened, and that, if the professionals involved were correct about her risk, the next coverage on the case would have been that of an inquest.
2. What were the issues?
The issues involved were both straightforward and highly complex. With regards to the former, the evidence overwhelmingly suggested that if appropriate supported care was not available, it was likely that this disturbed young woman would take her own life.
In an ideal world, this case would not have come to court. Indeed, there are a number of powers under the Mental Health Act 1983 (MHA) that should have delivered adequate protection without the use of the court. There is a power under section 47, for example, to transfer a person from custody to a hospital for treatment of mental disorder during sentence. This decision would therefore have been made by the relevant Secretary of State on the advice of two clinicians, rather than the court, and it could have been made at a much earlier stage during X’s sentence.
In addition, there can be little doubt that X met the criteria for detention under s.3 of the MHA. This would have authorised her detention in hospital for treatment and she would have had a right of appeal to a mental health tribunal. There is no minimum age for detention under the MHA; had she been accepted by a secure mental health unit, the assistance of the court would not have been required.
But the case came to court and was heard before Sir James Munby, who was powerless to help – unable to conjure a bed in an appropriate unit when none was available – yet he felt he had to try to do something. His approach was initially to draw the case to the attention of decision makers and when that failed, he used language that was bound to attract publicity – stating that we would have “blood on our hands” if we failed X.
These judgments say nothing new, simply further demonstrating the powerlessness of the judiciary when faced with a lack of resources. This was also vividly demonstrated in North Yorkshire County Council v MAG  EWCOP 5,  MHLO 26, a case where a district judge tried and failed to obtain appropriate accommodation for MAG by refusing to sanction a deprivation of liberty because it was not in MAG’s best interests. Such a course of action was hardly surprising when you looked at the facts. Namely, that MAG could not stand independently and his flat was too small for his wheelchair. He could only get around by pulling himself along the floor and up on to chairs and his bed, which resulted in painful bursitis in both knees and calluses to his knees and ankles. As no alternative was available, on appeal Cobb J reflected the powerlessness of the Court of Protection and ruled that deprivation of liberty was in his best interests.
3. What did the court decide, and why?
Unfortunately, the Court did not really decide anything. The plan for X to move to a hospital was approved at hearing No. 5, but having achieved her safety (at least in the short term), the judge had few other options. As he had eloquently said at Re X (No.4):
“18. Conscious of the dangers of falling into the fallacious trap of post hoc ergo propter hoc, I cannot escape the powerful feeling that, but for my judgment, the steps subsequently taken would have been neither as effective nor as speedily effective as appears to have been the case. This, however, is not a matter for congratulation; on the contrary, it is, of itself, yet further cause for concern. The provision of the care that someone like X needs should not be dependent upon judicial involvement, nor should someone like X be privileged just because her case comes before a very senior judge. I emphasise this because a mass of informed, if anecdotal, opinion indicates that X’s is not an isolated case and that there are far too many young women in similar predicaments. How are they to be protected?”
The great achievement of this case, and of the President himself, was to throw light on this “disgrace”, thereby potentially helping not just X, but others in similar situations.
Ultimately, this particular case absorbed a significant amount of time and resources; if the costs are less than £500,000 when all are taken into account, I would be very surprised. Had a bed been available, as it eventually was, and had the proper powers in the MHA been used, these costs, and valuable professional time could have been avoided.
The eventual care taken in identifying the best place for X is in powerful contrast to detentions under the MHA (which do not involve the Court), however, where the lack of appropriate beds is a daily challenge in both child and adult psychiatry. Many patients are sent miles from their homes (if a bed can be found at all) and little thought is given as to whether the placement is appropriate.
4. To what extent is the judgment helpful?
This judgment made a difference not only to the young woman, X, but also to others. This is evident in judgment No. 4 where a letter from 4th August 2017 was quoted. It was sent from NHS England’s North of England Specialised Commissioning Team:
“On 3 August, there were extensive external discussions within NHS England and with external providers. In particular, there was consideration of a plan to convert PICU beds at [ZZ] into LSU beds – at the time of this letter, this option is still being actively explored. Such a conversion would take 3-4 weeks, but would have the benefit of not only providing a place for X, but also providing more LSU beds nationally (which would relieve the strain on PICUs as they are currently providing care to children and young people awaiting LSU beds).”
I am aware that, as a direct result of this case, additional beds are being opening in a specialist unit to cater for those in a similar situation to X.
But the frustration felt by the President during this case is a frustration felt by many in related professions. Sir James Munby articulated it beautifully in his third judgment on the case:
“I feel shame and embarrassment; shame, as a human being, as a citizen and as an agent of the State, embarrassment as President of the Family Division, and, as such, Head of Family Justice, that I can do no more for X.”
Although this case does not further develop Court of Protection case law, by drawing attention to this case, the President certainly made a difference.
First published on LexisNexis