Autonomy and Mental Capacity

When you read this post, please don’t think about the pros and cons of vulnerable people being legally represented in custody.  This post is not about solicitors for vulnerable people.  Think about the right of personal autonomy – to take one’s own decisions where we have the capacity to do so.  This post is not a police officer lamenting about how great it may be if only people were not legally represented – either because it would be faster to deal with people or for any other reason.

I can’t imagine, for example, a situation where I would not want my son to have a solicitor if he were in police custody – guilty or innocent of any allegation; or if detained under the Mental Health Act.

This post is about how I want to live in world where we respect personal autonomy as far as we possibly can do so – there will come a point where my son has the right and the responsibility to make his own decision and this will happen well before he is eighteen years old.  I’m sure I will wrestle with this as generations have before me.

I wrote about a case previously briefly in “The Appropriate Adult” and having done so an alarm bell later went off in my head regarding something altogether more important arising from it.  You may remember, there had been a disagreement between a mental health professional who had come to act as an appropriate adult and the detainee they had turned up to assist.  An adult man, suffering with schizophrenia, had been arrested after being alleged to have caused criminal damage.  He was still awaiting interview when I left the police station to come home there having been something of a delay after his arrest because of the need to secure a Force Medical Examiner’s opinion about the impact of his schizophrenia upon the investigation, including consideration of whether a full Mental Health Act assessment may be needed.

We learned at the end of the FME’s examination, that the man was known to local community mental health services, had a forensic history as well as the previous convictions that we already knew about.  That said, mental health services informed the FME that he had been engaging with care after release from prison and they agreed with the FME that formal assessment for admission was not required.  The man was taking medication, keeping medical appointments and was stable in his recovery.  He was living free from any restriction on liberty arising from his mental illness; restricted only by the terms of his prison licence for his offending behaviours.

Therefore, the question for the police officers was whether he did or not did commit criminal damage; to make a decision about whether he should be charged with this and what impact, if any, that decision may have on his licence.  So we need to interview him and the FME had rightly said he would require an appropriate adult.  Unfortunately, there was no-one from friends or family who could undertake this role so we sought support from the local authority.

The appropriate adult who turned up was experienced and one of the first things he asked was whether the man had requested a solicitor?  He had not done so, despite it being offered.  The appropriate adult stated that a solicitor should have been called, incorrectly insisting that “all vulnerable adults in custody have to have an appropriate adult.  It is the law.”  It is not the law – not at all.

This disagreement became fascinating for two reasons: firstly, incorrectly quoting the laws within PACE to a sergeant is guaranteed to wind them up – especially the professional, experienced and knowledgable custody officer on duty at that time who knew without looking it up that what he had just heard was nonsense.  It was also fascinating for another reason: the detainee protested to the appropriate adult in front of the custody officer and said he didn’t want one.


Paragraph 6.5A of Code C of the Codes of Practice to the Police and Criminal Evidence Act is the answer: it provides that the appropriate adult has the right to insist upon a solicitor being called if they believe it is in the detainee’s best interests, however it reinforces that detainee cannot be compelled to see or accept the solicitor if they are adamant that they do not want one.  The law on this point was only amended in July 2012 to allow the appropriate adult to insist upon calling a solicitor.

So at this point my thoughts turned to the concept of mental capacity around this man’s decision and his own personal autonomy.  The law of England demands that this man be presumed to have capacity to take his own decisions unless an assessment concludes that he does not.  An unwise decision is not, of itself, reason to argue that someone lacks capacity and any attempt to take a decision against the wishes of someone else in their best interests should be predicated upon an assessment that they lack capacity.

Is it unwise to decline a solicitor in police custody?  Maybe, but not necessarily.  Maybe he knew exactly what he wanted to say about the allegation and was confident of doing so?  Who knows …

But many public sector organisations who agree to support mentally disordered suspects in custody have a blanket policy of insisting that all detainees be legally represented.  As many of the professionals who undertake this role are mental health professionals who operate in a world of patient empowerment against a legislative backdrop that attempts to respect individual autonomy, it seems at least curious that there is no individualization in this regard.

I also had one further concern:  did the appropriate adult inform the detainee in proper terms about his legal rights whilst he was busy attempting to over-rule him? – of course, it is not the role of the appropriate adult to give legal advice.  Maybe the detainee needed a solicitor to handle his appropriate adult, rather than the police?!

So was it made absolutely clear that a solicitor could not be forced upon the man and if he continued to resist his decision would be respected?  Home Office guidance to Appropriate Adults is available and it makes this clear.  In light of the fact that the appropriate adult incorrectly believed he had a right to insist the detainee be represented, it seems likely that he declined to explain the truth to the man detained, mainly because he did not know what the truth was.  As he was determined to exercise a policy of seeking legal advice against the wishes of a detainee – who we should remember was not acutely ill, not in need of admission under the Mental Health Act and who is presumed, by law, to have the capacity to take decisions – it seems improbable that a proper explanation of his legal rights was provided – that if he insisted upon not wanting a solicitor, none would be forced upon him.

Now – all of this is difficult stuff, isn’t it?  Anyone could read this and suggest that this is just a police officer arguing outrageously against the legal representation of vulnerable people in custody.  Actually, as stated at the start of this piece, what I am actually arguing for is respect for personal autonomy.  This post is not about legal representation, that is merely the vehicle for making the point.  If this man lacked the capacity to take the decision about legal representation – and there was no reason that he did following examination by a s12 Doctor – there is a legal opportunity to manage that.  Let us remember that an unwise decision does not mean someone lacks capacity and let us remember what the appropriate adult is for – it is to assist in communication and ensure fair treatment from the police.  Investigating and interviewing suspects without legal representation is not inherently oppressive or unfair – it happens everyday in this country where people have taken a free choice not to be represented.

Having arrested, detained and reviewed thousands of people in police custody over fifteen years, there are a range of valid, weird and private reasons for this.  Why should people with a mental disorder be treated any differently when their treatment is safeguarded by the appropriate adult ensuring proper conduct by officers and clear communication of what is occurring?  The man was demonstrably concerned that the appropriate adult’s decision to over-ride his wishes would – in his own opinion – unnecessarily extend his time in custody.  You may judge the importance of such a reason for declining a solicitor.  My point is, that it is his decision to make.

As I say – this post is not about legal representation at all; it is about autonomy.

Winner of the President’s Medal,
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award


All views expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2012

I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current.  Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.

Government legislation website –

6 thoughts on “Autonomy and Mental Capacity

  1. Where is it decided that the DP still says NO. When the legal rep arrives at the station? When they come into custody? Talked to the Apropriate Adult? Talked to the DP? And who will end up paying for and unused legal rep? Is it at the police expense?

    1. The AA has the right to ask for a solicitor to attend. How that solicitor reacts to that request is then a matter for them. I could imagine hypotheticals where a solicitor would attend, learn that the detainee was ‘adamant’ (not to have a solicitor) and then leave. I could also conceive that some solicitors would decline to attend if they know the detainee is adamant to be unrepresented, perhaps following conversation with the custody sergeant and / or appropriate adult. Any payment due would come from legal aid as it always is regarding legal advice in custody.

      1. You say it is his decision to make but surely only if he has the capacity to make the decision. As he has a diagnosis of schizophrenia,there may be grounds to conclude that he meets the criteria for a capacity test. In your example he has been examined by the doctor. Has the doctor concluded he is symptom free and has no ‘impairment of, or a disturbance in the functioning of, the mind or brain’? Then there is no grounds to complete the capacity assessment, or is he just saying that he is not acutely unwell. There may be an impairment without an acute presentation of illness.

        If there is still judged to be an impairment then maybe the AA would be in the best position to carry out the capacity test and maybe they should be provided training to do this. Maybe only after applying the capacity test to the decision can it be concluded that he has capacity (or not) and is therefore just making an unwise decision.

      2. So, by that standard we’ll have to pro-actively capacity test everyone in police custody for almost every decision they have to make if there is any suggestions they have a diagnosis, presumably including any rejection of food / drink … are you free 24/7 because AAs are often uniquely unqualified to do it?

        What purpose does a legal presumption of capacity and screening by a healthcare professional have, if we then need to proactively capacity test people for things which the law doesn’t require?

  2. Thank you for broaching such a complex subject. As a sufferer from rapid cycling bipolar (cyclothymia), I know first hand what it is to struggle to understand what is MY capacity at a given moment, and therefore my level of responsibility for my actions, and for letting others know what to do for me to restabilize me when I’m feeling a bit rocky. And therefore what is OTHER PEOPLE’s level of responsibility. It’s like a sort of back-and-forth dance, isn’t it? The same as it is with a growing child. Neuroscience has revealed that during puberty, the frontal lobe of the brain gets literally pruned: child connections are cut, making room for adult connections to be established. Therefore, teenagers lose moral/social thinking, and get into trouble more easily than, say, a 7-yr-old. By 25 we more or less settle into a pattern, and a person isn’t really an adult until then. However, we’re dealing with human beings, aren’t we? So we also have the ‘triune brain’ thing: oldest part of brain is reptilian (snake/lizard – fight/flight), 2nd oldest is mammalian (emotional reactions, defensiveness, territoriality, instincts), and then you have the little grey cells (neocortex) or thinking brain that’s supposed to overlay the other parts and produce the thinking before acting out process. Which as we know is flawed in all but the most saintly and intelligent of us.

    For myself, diagnosed 6 years ago, it was a matter of learning as much as I could about my condition, getting myself into a lifestyle that protected me enough (sheltered housing scheme, small world), learning about triggers, early warning signs and symptoms, and working with a psychotherapist to put coping strategies and an action plan into place (an ‘advance statement’) for others to use. From moment to moment, I wear my brain out keeping track and making sure I’m doing what’s helpful and as healthy as possible for myself – and those around me. If I’m unwell, I jolly well stay indoors and do something simple. If I absolutely have to go out, or I sense a change in mood/state whilst I’m out, I try to make sure there’s something there I’ve primed to know what to do, or I get a taxi home as quick as I can. I try only to mix with people who know what happens if I suddenly go white/red in the face and say ‘got to go – sorry!’

    I’m fortunate that bipolar people – in my experience – have an extraordinarly high standard of personal behaviour and especially in front of other people. And an extraordinarily degree of awareness of ourselves in relation to others i.e. wanting to be helpful/useful and contribute positively to the planet. Friends who had a diagnosis of bipolar but who indulged in antisocial behaviour generally end up rediagnosed with a personality disorder – though I don’t know if that’s right, not being a professional. My horror of upsetting anyone – even by saying a swear word or not listening to someone properly or forgetting to offer them a cuppa, little details like that – keep me reclusive. I’d rather be alone than be a problem.

    However, how would anyone handle me if I did go into crisis in a public place and not have anyone round to help – say if I was alone in a shopping centre and saw someone being attacked and decide to wade in to try and rescue them, and then I was turned on and got into a rage and hit people back? Would the mental health diagnosis stop my version of events being believed? Would the mental health services be called? Would my testimony – if asked for – be invalidated? Would I end up being sectioned or even put in prison, away from those who help me stay well? The thought terrifies me. Stigma lives on. I really respect you for trying to get to grips with all this stuff. It’s quite a minefield, isn’t it?

    I would love to do some public speaking to officers about mental health. I do that. Last one was POhWER Advocates AGM last month. I also write for Pendulum the magazine of Bipolar UK. Any chance? I believe – like you – in information and education and healthy discussion.

    Best wishes
    Jan Tchamani

    1. Dear Jan Tchamani
      You could make your evidence to the House of Lords Select Committee on the Mental Capacity Act 2005 as they are seeking evidence by start of September 2013.
      Good luck for your future.
      Rosemary Cantwell

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