“Do they have capacity?”

I’ve had a couple of comments (presumably) from police officers, regarding issues raised on the blog which raise a question over our use of the word ‘capacity’.  I’ve also heard the question hundreds of times, “Do they have capacity?”  It is almost as if we’ve worked out that this is the legal magic bullet to make black and white clarity from shades of grey complexity.

Of course, some would argue that the first error is to ask legal questions of health professionals (and vice versa).  That aside, an officer commented that they seek confirmation from hospitals who are reporting AWOL patients, “do they have capacity to refuse treatment?”  In turn, this then influences their policing response.  Whether this means “capacity to refuse treatment at the point they went missing” or “capacity to refuse treatment now” is unclear.  If someone ‘with capacity’ went missing (without agreement) and has subsequently spent a day and half bending their minds inside out with crack cocaine, they may not necessarily have capacity if they are found by the police in the local drug den.

Of course, it is right that the police understand what they are being asked to do.  I’ve often raised the point – if the NHS are reporting AWOL patients who were NOT detained under the MHA, are they asking for a ‘safe and well’ check or are they asking that if the person is found that the police should contact an AMHP to initiate an urgent MHA assessment for potential re-admission under the Act?  (Remember when despatching the police: we have no legal powers in private premises under the MHA without an AMHP securing a warrant under s135(1) or making an application for admission; and if the location of the patient is known, it is a role for MH services to recover the patient themselves, only being supported by the police where necessary because of risk.)

But I’ve heard this same question asked of DRs when patients assault staff, “Does he have capacity?” or “Does he have capacity to form the intent?”  Capacity for what?!  Capacity is situationally and task specific.  At the same time, someone may lack capacity to decide whether to accept life-saving medical treatment, whilst retaining the capacity to decide whether they should eat a meal.  Someone who has capacity to decline certain medical treatment now, may not have that capacity in 24 or 48 hour’s time.  It is a contextual and fluid concept so however it is addressed it needs to reflect the difference between the ‘mens rea’ for a common assault and that for a GBH with intent; as well as addresing ‘insanity’ laws.

Of course, ‘capacity’ is not the correct question for some of these situations anyway.  All cases turn on their merits, obviously, but some assaults are committed by patients who ‘lack capacity’ (in the general sense that this means anything at all) and they are detained against their will under a section of the Mental Health Act; but they “understand the nature and quality of the act” for the purposes of criminal investigation / trial.

A forensic psychiatrist once remarked, “I don’t ask you what drugs to prescribe, so why are you asking me legal questions?!  I can tell you he’s got schizophrenia and I can remark in general terms about cognitive reasoning and I can advise about whether there are any clinical reasons that prevent prosecution.  Whether that all amounts to ‘capacity’ or ‘intent’ or ‘recklessness’ is a matter for legal officials to decide because these are legal not medical concepts.”  (And of course, where patients who might lack capacity do understand the nature and quality of their act, it may or may not be in the public interest to prosecute them for it.)

So, ‘capacity assessment’ is not the panacea to policing situations that some think it is – it may not tell you what you actually need to know.  This is why professional training for police officers in MH issues is necessary.


23 thoughts on ““Do they have capacity?”

  1. The use of the word ‘capacity’ is the issue. When I ask officers to establish a missing person / AWOL patients capacity I am after exactly what, the slightly condescending, forensic psychiatrist you quote is prepared to give me!

    I do also feel your example of the crack cocaine is a little flawed. It is exactly what their mental state is at the time they refuse treatment that is important. If they represent a future risk to themselves through substance abuse or self neglect then that is an issue for mental health professionals to manage through admission under the act.

    The idea that I can police what a patient might do, who otherwise has ‘capacity’ is quite frankly a little Orwellian.

    Too often the police are used as a control measure to safeguard the risks that the MH professionals are taking by not admitting patients under the act, who then absent themselves and are suddenly ‘high’ risk because they might engage in behaviour that puts them at risk. We quite rightly insist on a clinical view to establish the risk or criminal intent and if tolerable decline to take action in both instances.

    Excuse the quality of this post, am tapping away on a mobile device!

    1. Agreed – ‘capacity’ is not the word to use most of the time. I think we’ve latched onto it inappropriately. The questions and need for input from DRs / nurses (or whoever) is absolutely key and I am not trying to say otherwise.

      Regarding ‘policing what patients might do’ – would just like to clarify: I’m not suggesting we even try. Only suggesting that our response to finding patients (if it is even appropriate for us to be finding them and / or considering recovering them) needs to be governed by what we actually find and not necessarily by what we thought we would find based upon the NHS’s assessment of ‘capacity’ [at the point of AWOL].

      (Can assure you the condescension is my writing style only – FP is a top bloke, gave much time and fought battles with the NHS to help the police reduce the impact).

  2. To seem to be missing a very important point. If the person has left hospital with signing a release form police will usually be called to visit the person. Th fact that the person who has had overall care over the patient should be aware of there ability to refuse treatment isn’t a legal question it’s about risk assessing and resourcing. Besides the fact that for police it’s more about having a defence in law rather than having a legal power (MCA 2005)

    Let’s say police visit an address we’re not medically trained so whilst we can say they’re save how can we say they’re well. After all they’ve just left hospital whilst recieving treatment.

    If a patient has returned home prior to finishing treatment nurse be better suited to attending the address.

    Police are the lowest ring of the ladder when it comes to making ‘Capacity’ assessment. Medical staff overseeing the care of a patient for several days can’t answer a simple question (and it is a very basic question) then why is the responsibility being passed to police.

    It’s simple. It’s a back covering exercise by staff, nothing more.

  3. Thanks for this post – it’s really interesting. You hit the nail on the head when you wrote ‘Capacity is situationally and task specific’. That is the legal position. The Mental Capacity Act (and the Code of Practice) are very clear about that. Legislation is also very clear on a number of other factors
    -Capacity is always assumed as a default position
    -The decision-maker about whether someone ‘has capacity’ or not is down to the person who wants to take the relevant action
    So a police office would appropriately make a capacity assessment for someone whom they might detain/arrest just as a doctor would appropriately make the capacity assessment for treatment decisions.
    ‘Sectioned Detention’ says

    ‘Police are the lowest ring of the ladder when it comes to making ‘Capacity’ assessment. Medical staff overseeing the care of a patient for several days can’t answer a simple question (and it is a very basic question) then why is the responsibility being passed to police.’

    And the answer (which I don’t think they’ll like) is that that is what the Mental Capacity Act says must happen. Mental Capacity is not static and one cannot make a decision ‘in advance’ about what someone’s capacity might be so whoever is the ‘decision-maker’ has to make the decision – at whatever ‘rung of the ladder’ they are at.

    I’ve found much desire (among health professionals and others) to try and pass off responsibility for capacity assessments to others but that isn’t the legal position.

    Again, much food for thought though! Perhaps I’ll write my own post about ‘capacity’ now!

    1. Thanks for this. Definitely do your own post. I think my main point, is that when the police use the word ‘capacity’, it’s often not in relation to situations which properly are concerning legal capacity but other legal things for which we’ve ended up using the word as a euphemism. And whether or not someone had ‘capacity’ [to decline inpatient mental health treatment, for example] is NOT the main issue when the police are being involved in AWOL enquiries.

      Here’s a thought: if a capacity assessment is required at an incident where the police are present, CALL AN AMBULANCE. Paramedics do have ‘mental capacity’ training although I admit to being stunned to find, that the NHS Ambulance Service often have no better, different or faster access to 24/7 MH services than the police do.

      1. I don’t think police are different from other professionals (including those in my own team – no names!) regarding nebulous definitions of what ‘capacity’ is – which is why it’s so useful to refer back to legal definitions.
        As for paramedics having mental capacity training, that isn’t the actual issue – because even without training the responsibility for making the decision lies with the ‘decision maker’. I have often had to explain mental capacity law to both police and paramedics (and colleagues) at length. All in all, I think it’s an area that has been generally undertrained and is misunderstood in relation to Mental Health and particularly regarding the Mental Health Act

    2. Some flawed logic there. The main decision maker is still the hospital as police are there to assist hospital finding the patients (every AWOL policy I’ve every read states this) which is why police ask this question. Of course it depends on the situation but if a patient has refused treatment ie walked out of the hospital it’s not unreasonably to ask the member of staff looking after them “when they left do you think they were able to understand the consequences of refusing treatment?”

      If they can’t answer that question then what kind of care have they been recieving. We’re not asking for the results a a full psyc evaluation.

      When police do arrive at an address and Joe Bloggs is refusing to answer to door it would be nice to have an idea of risk so we justify kicking doors in then dragging a patient kicking and screaming back to the ward should we have to.

      For those office wanting a handy reference for the MCA

      1. The key is that the decision about capacity when they leave the hospital may not be the same as it is ‘now’. I’m not saying this is ‘right’ but just how it is. Of course it’s not unreasonable to ask the medical team for their opinions but the decision remains with the officers.
        Ideally, we’d all work together!

      2. But the decision of the officer will be based on the medical assessments made at the hospital.

        This isn’t rocket science. IF just before the patient left they had no concerns about the mental health of the patient (this includes drug/alcohol issues etc) then the patient should be free to leave and police not called. However if there were concerns the patient should not have been allowed to leave and the police won’t be called.

        See how easy it is?

        Add to this the fact that non-life threatening patients would be better serviced by a nurse not police or paramedics then it should be very rare for police to be called to hospitals. But it’s not.

        Of course we should work together but that shouldn’t mean police picking up the slack for other organisations.

      3. I’ve got to be frank; I can think of little more foolish than to work on “medical assessments made at the hospital” when making decisions several hours or days after the fact and I’m not sure anybody was saying it was rocket science. IF just before a patient left (without agreement) there were no concerns about the mental health of the patient, then what on earth were they doing in a psychiatric hospital?! There will always be some level of concern about mental health for every inpatient. And some people are voluntary patients despite very pronounced concerns about their mental health.

        I see how easy this stuff is – everytime I look at the death in custody statistics and everytime I see police officers getting disciplined. So whether or not it would be better for a nurse “to go”, it seems to me our police colleagues sometimes keep offering their arm to a legal mangle. Best we understand what we’re doing when we get there, in my humble view.

        NB: none of this should be taken to mean that I think psychiatric services or their attitude to AWOL / risk are always spot on. Far from it. But you got to police what’s in front of you; not what you THINK is in front of you. Just my view.

  4. Its not about picking up slack, it’s about using the law and appreciating (based on history, information etc) that situations regarding capacity can change between hospital and the ‘situation’ which has arisen that needs the call-out.

    Working in silos helps noone and defining tasks as ‘ours’ and ‘theirs’ just create more intransigent thinking

  5. I was referring to ALL patients who leave hospital not just mental health patients.

    But if you want to keep it to Mental Health wards. A friend of mine sent off a Freedom of Information request to a MH hospital near him that’s been in the press.

    Here’s the reply:

    Q) How many mental health patients, either informal or formal have been reported Absent without Leave (AWOL) from the Edale Unit within the last 12 months?
    A)There were 97 patients reported AWOL in the last 12 months from the Edale Unit.
    Q) Of these patients how many were recorded AWOL more than once?
    A) 14 patients were recorded AWOL more than once.
    Q) What is the highest number of AWOL incidents recorded by the Edale Unit for an individual patient?
    A) The highest number of AWOL incidents recorded for an individual patient is 10.
    That sound like a well run hospital? None of the staff are away of the policy for AWOL patients and few if any of the managers do.

  6. I might be completely oblivious to the point that’s being made – possibly because I don’t work in a hospital – nor do I work in the police force. One hospital is shoddy re: AWOLs – that’s what is proved by those figures. I can’t see how it relates to the conversation previously about responsibilities in relation to capacity (and capacity is an issue for all patients – not just those who are in mental health wards) – after all, if you think about how many patients with dementia/acute confusional states etc there are in general hospitals, it’s not solely a psychiatric issue. Anyway, maybe it’s me that’s missing the point.
    Thanks MentalHealthCop for your post – it’s given me food for thought 🙂

    1. It is you missing the point. I was talking about all patients prior to the post about Edale house. But MHC said that he was only talking about people on MH wards. I then made the post. MCA covers being injured, on drugs and being drunk too as well as people with dementia.

      Which is why the point about asking about a patients mental state (specifically their ability to refuse treatment) is so important.

  7. I’m ‘pleased’ to see that the capacity issue is as much a debating point for others as it is for me and my colleagues working in a Nursing Home. It’s as clear as mud at times to us and we often have to make best interest decisions

  8. A yardstick we use for all patients (MH or not) to assess capacity (all patients should have capacity to make an informed decision) is the CURE test.

    Communicate. Can they communicate their decision (even if not verbally)?

    Understand. Can they understand the information that enables them to make a decision?

    Retain. Can the patient retain the information?

    Employ. Can the patient employ the information to make a/the decision effectively?

    Simple, but effective. I use this every time a patient has to make a decision, or consent to something. It’s also a tick list when we leave someone at home. Hope it helps.


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