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.