Sentencing remarks have been published after the guilty plea of Owen Herbert for manslaughter on the grounds of diminished responsibility, actual bodily harm and assault on an emergency worker. Mr Herbert has been given a restricted hospital order (s37/41 of the Mental Health Act 1983) and remains in Broadmoor high security hospital, where he was prior to sentencing.
This is a really tragic case which involved a vulnerable mental health patient killing another patient on a low secure ward, assaulting a second patient and then punching a nurse who responded to the security alarm that was activated when the attacks began. The judge lamented these events were “so entirely avoidable”. Initially, Mr Herbert was charged with murder and attempted murder, but has pleaded guilty to manslaughter on the grounds of diminished responsibility and ABH. It’s worth noting it doesn’t massively alter the outcome, given his illness was always likely to lead to a partial defence of diminished responsibility and that meant the only realistic outcome would be a the restricted hospital order he has been given.
Mr Herbert had been unwell for a long time, ultimately diagnosed with treatment resistant schizophrenia and in September 2021 was admitted to hospital under s2 MHA for assessment on a psychiatric intensive care unit. Discharged home in early October, he was then reluctant to take medication, began using cannabis and engaged in various risky behaviours involving weapons which his father took from him on occasion. Amidst profound family concerns, he was eventually assessed again for admission under the MHA and re-admitted to the same hospital. However, upon arrival, the PICU refused to accept him (the sentencing remarks don’t say why) and he was admitted instead to a low-secure ward in the same hospital.
THE JUDGES COMMENTS
At the end of the published remarks, the Judge made mention of his referral to the Secretary of State for Health, to review the case and ensure lessons are learned to prevent recurrence of these kinds of events. This, again, seems to be an example of the ‘no beds’ situation. We know that some patients requiring a particular type of inpatient bed have been placed in lower secure areas. This is a case of someone requiring a psychiatric intensive care unit bed, but being placed on a low-secure ward. You may remember the MS v UK human rights case (the incident was 2004, the ECHR judgment was 2012) and that centred on a human rights deprivation in a police custody setting which occurred because the NHS was arguing with itself about whether a medium secure bed or a PICU bed was required – each part of the NHS suggesting the other was more appropriate. Finally, you may recall the case in Greater Manchester where a man was detained in police custody for three days and GMP had to threaten legal action to bring about and end to the person’s time in the cells? When admitted to hospital, he was admitted to a ward of less ‘therapeutic security’ than would be ideal and shortly after admission, serious damage was caused to the ward.
So admitting patients to the ‘wrong’ kind of bed or mental health ward can be consequential and we’ve always known this. In Mr Herbert’s case, it obviously was the intention that he be re-admitted to the PICU where he was previously cared for. The judge’s published remarks offers no explanation as to why the PICU refused to accept him in – we should bear in mind it’s normally part of the discussion before the Approved Mental Health Professional completes the MHA application that the receiving hospital ward would confirm their willingness to receive the person, otherwise what’s the point of making the application there to start with. That’s something that may come out of any inquiry that results from this.
I’m left with the three words from the judge somewhat ringing in my ears – “so entirely avoidable”. In one sense it was: admitting patients to inappropriate ward environments where there is obvious potential for risk arising from them carrying weapons and being thought (even by their own family) to stand a chance of hurting others is replete with obvious danger. On the other hand, however, securing admission to a psychiatric intensive care unit without undue delay is common place and the NHS struggles most days to admit people to specialist beds in a timely way. In that sense, especially because of other examples of various untoward outcomes, it’s not necessarily avoidable – the system is under all kinds of sustained, chronic pressure and I’m not sure I see that changing any time soon.
NB: a warning to all AMHPs who may read the sentencing remarks – the AMHP acronym is used incorrectly within the document and someone thinks the ‘p’ stands for practitioner!
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2023
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