Is it OK if this post is a somewhat indulgent off-load of something exacerbates my stress levels and causes my blood pressure to rise?  Thanks.  Far too many times in the last few weeks, I’ve heard versions of these kinds of things in operational situations or during some presentations I’ve done to police / healthcare professionals –

  • “I need you to help me get this bloke to A&E because he doesn’t want to go and he lacks capacity?” said the paramedic.
  • “Doctor, I can’t prosecute this man unless you give me a statement confirming he had the capacity to forms the mens rea.” said the police officer.

AAARRRRGGGGGHHHHHH!?!?!?!  STOP IT! … please, stop it!?

This is me, just about now. >>>>>>>>>>>>>>>>>>>>>>>>>>>>>>

Capacity – is this just a word that a lot of people have latched on to, having misunderstood it and because they think it can easily make them sound like they know what they’re talking about and doing, when justifying their own action or inaction?

There are two things going on in my above examples: legal capacity as a method to determine whether or not the State may intervene in the best interests of a patient; and the use of the word ‘capacity’ as a proxy for proper understanding of the legal issues that arise during criminal investigation.  Let’s take them one at a time!


A few weeks ago, the House of Lords published a report on the operation and effectiveness of the Mental Capacity Act 2005.  I recall reading sometime around the release of this document that there was discussion about what ‘capacity’ actually meant and one respondent stated –

“Saying that someone lacks capacity is totally meaningless.” 

And so it is!

Some of us having been saying so for years!  Capacity is decision-specific: you may simultaneously lack capacity for one decision, whilst retaining the capacity for another decision.  This is because the information necessary to weigh the issues appropriately may vary in their complexity rendering some people unable to understand one issue, without affecting the other.

Imagine this — a person who is detained in hospital under the Mental Health Act is deemed to be in need of a life-saving operation for a general healthcare issue.  In the opinion of the psychiatrist and the other specialist consultant, they form the view that the patient is unable to understand the implications of their condition and the fact that they may die without treatment.  There could be a scenario in which a view is taken that this patient lacks capacity to take the decision about whether to accept or decline medical treatment.  Imagine that whilst these deliberations occur, the patient is offered a cup of tea by a nurse on the ward and they decline – it does not follow that because the patient is deemed to lack capacity on the first issue, that they must lack capacity on the second.  If the patient were at life threatening risk from dehydration, they wouldn’t be being offered tea there would be a more medical response to that, so assuming the patient eats / drinks more or less normally but is simply not thirsty now or would prefer something else, no-one would countenance forcing Earl Grey into them.

It is also true that a decision for which someone has capacity now might something for which they will lack capacity in an hour’s time, or less.  Capacity is fluid and assessment of it is specific to time and context – imagine a person who is intoxicated and injured to the head, following an assault upon them during a night out.  It may be that when the police and ambulance service turned up they lacked capacity to take decisions around medical treatment for an injury that may well be serious.  Four hours later when the alcohol is wearing off and medical obs have been performed a few times, they be deemed to have regained capacity and when they decide to leave without completing treatent there would be no good grounds to stop them and no serious or lasting consequences to that decision.

So when I turn up to an ambulance job and hear “He lacks capacity!” I just want to do a small interpretive dance.  For WHAT, precisely, does he lack capacity?  Paramedics tend to deal with illness and injury: if the paramedic is proposing to dress a superficial wound and the patient is refusing to let them, this could be akin to the person declining a cup of tea – it may be almost entirely without consequence.  To leave some minor wounds undressed may expose them to a minor risk of infection and may not look great, but they are certainly not going to die (from that, today).  It also may be that the decsision to decline was influence by alcohol or drugs that will wear off in a few hours and the question of wound treatment can be put to them again.

And even if someone has self-harmed by causing cuts to their arms in their own home and then declined medical treatment, it may be the case that they “lack capacity” around medical treatment, but other parts of the MCA would not allow the person to be immediately coerced to A&E.  Remember: to engage in anything which amounts to a deprivation of liberty under the MCA (and Cheshire West means that more situations are such deprivations), then paramedics and police officers would have to be able to show that it was a “life-sustaining intervention” or necessary to prevent a “serious deterioration in someone’s condition”.


Things become even more absurd when we start seeing “capacity” as a proxy for other legal considerations.  Capacity, is not a relevant term when considering our criminal law.  I won’t regurgitate many different blogs I’ve written on this topic, but would summarise the following points and I know that I’m simplifying this, potentially just a touch too much to make the point to non-lawyers and to non-investigators.  Please bear that in mind because I know holes could be picked!

  • The cognitive side of criminal offending is governed by the laws around concepts of intent and recklessness
  • Offences of simple intent require almost no conscious mental element at all, the mens rea – insanity is not a defence to offences of simple intent.
  • If you’re found driving a car on a road, you either do or do not have a driving licence, insurance and an MOT.  What you thought you had or how your cognitive state is affected by your mental health problems, other illness or substance use is neither here nor there.
  • Such issues may very well affect the public interest in a prosecution or may affect sentencing by the courts, but the basic ability to satisfy the evidential test for those offences is unaffected.
  • Even offences of basic or specific intent may not be affected in terms of proving the evidence exists to prosecute – either someone’s fist did hit someone else’s face unlawfully, or it didn’t and if that person understood it would hurt or injure, that is sufficient to prove the assault.
  • The fact that someone hit mental health nurse or police officer because a delusional condition made them incorrectly apprehend that person to be someone intent on causing them harm, is not a make-or-break factor.
  • Criteria which indicate someone is very seriously mentally ill do not necessarily obviate criminal liability – see the case of Christopher HAUGHTON in November 2011.
  • He was arrested, charged, remanded and prosecuted for attempted murder, several GBH and ABH offences and at all times from arrest to conviction, he was so seriously unwell that he met the criteria for admission to hospital under the Mental Health Act.
  • Ultimately, he was sentenced to a restricted hospital order which reflected this assessment of his serious mental ill-health, but none of that meant that he “lacked capacity to form the mens rea” or similar nonsense – he was still convicted.
  • Bear in mind that in terms of a specific intent to form mens rea, attempted murder is the most difficult offence on the statute book to prove – to prove murder there must be intent to kill or seriously injure, but for attempted murder there must be an intent to kill.
  • All cases should be assessed on their individual merits and we must resist the temptation to confuse and conflate the evidential test with the public interest test.
  • It may not be in the public interest to prosecute a seriously mentally unwell person for causing actual bodily harm to another but we should not think it impossible to prove the evidential part of the offence purely because we don’t think a prosecution has utility.

So there you go – and it’s now all off my chest!  Please spread the word as I will reluctantly admit it does my head in!  Far more importantly, it means we hear of cases where members of the public in the first set of circumstances are either removed from their homes in circumstances where the Sessey judgment makes it clear they should not be.  In the second misuse or abuse of the concept of capacity it means we may be missing a chance to bring people before criminal courts who should be there in order to let criminal courts take decisions that they alone can take.

There is work to do here – please help me get it done!

IMG_0053IMG_0052Winner of the President’s Medal from
the Royal College of Psychiatrists.

Winner of the Mind Digital Media Award.

11 thoughts on “Capacity

  1. 3 April 2014

    Dear Mental Health Cop

    I applaud you. Your insight needs to be taken to the Government. I posed specific questions to the Select Committee including “what is capacity”?

    You might as well ask how many angels dance on the top of a pin because the old religious question is now the Mental Capacity Act 2005 write large.

    Thank you and long may your commonsense prevail.

    Best wishes

    Rosemary Cantwell

  2. “Saying that someone lacks capacity is totally meaningless.” Yes I agree. However in the psychiatric setting it has power and means that patients who don’t want to swallow the “medication” will be said to have anosognosia, lack of insight, which soon becomes lack of capacity if efforts to make them take the drugs don’t work. Or that has been the experience of me and my family right up to this present day.

    Because there have been no other choices but drugs when we have experienced an altered mind state or psychosis. And the psychiatric hospital environment is not geared towards being an oasis in a storm or a place of respite. It’s a place where you are going to be labelled if in a psychosis and there will be no escape if there is “previous” in your psychiatric notes, “family history of” or any prior psychiatric treatment. Then “mental illness” becomes a reality, combined with “severe and enduring”.

    Some of us resisted the treatment, internally even though externally coerced, and made a full recovery despite the lifelong label in the notes. We may have written an advance statement or directive, saying we don’t want forced to take antipsychotics if in an altered mind state (as it gives us clinical depression) yet be fully aware that this may/will be overturned by the words “without capacity”. This is the present reality on the other side of the fence. Iatrogenic stigma:

  3. This is a most interesting blog – I do, however, have some observations and questions.

    There a number of points during the investigative process where “capacity” becomes an issue which must be addressed:

    Fitness to detain
    Fitness to interview

    Being two. If the answer to those two is “no” then it does create a few problems.

    There are offences – absolute offences – where mens rea is irrelevant but it is necessary in most offences.

    It is different from the actus reus which is the ACT itself – the actual application of force in an assault for example.

    So – taking the assault example – a patient may hurt members of staff by hitting them (actus reus) but the question is whether this was an act with criminal intent (mens rea) or a manifestation of the illness.

    What interests me is “at what point do you ask that question?”

    It DOES matter.

    The situation can be further complicated by a situation where staff deal with the aggressive patient with medical intervention (chemical restraint / sedative) and then report the matter afterwards as an “assault.”

    In order to medicate someone against their will you are using aspects of the Mental Health Act or Mental Capacity Act which are saying that the person lacks capacity.

    If that is the case – how can they form criminal intent?

    I think the problem is that no-one really knows how to deal with these situations properly (including myself) and they are not straight forward.

    I would say that simply because someone is sectioned and in hospital is not an automatic barrier to prosecution if it were necessary – but some officers think it is.

    Additionally – I would say that the whole capacity thing is misunderstood by both police and medics – particularly on front line “on the street” situations.

    The MCA does not provide a power of entry (as I have recently been challenged that it does) nor does it provide any power to compel someone to undergo a mental health assessment or even a simple medical assessment. It is for life sustaining treatment.

    The word “capacity” is bandied around by people as though it means something but I would argue that it does have a major bearing on a criminal investigation and how it is conducted – and actually – there is no clear guidance on

    When to ask
    Who to ask
    What to ask


    1. Mate – I don’t think that many, if any of things above are about legal capacity, strictly speaking. Certainly fitness to detained is about the medical wellbeing of people in custody and you could have a head injury or breathing problems that render you unfit for detention without affecting your capacity to take even quite profound decisions. Fitness to be interviewed is about understanding questions put to you, the legal significance of answering versus not answering and probably gets as close to capacity as anything in your comment.

      However, there is a particular comment of yours that I want to highlight (without appearing to pick on it, which is actually hard?!) … “Whether this was an act with criminal intent (mens rea) or a manifestation of the illness?” Actions amounting to offences or to acts done could be both, which is a point I’ve made before. Christopher HAUGHTON remains the best example: stabbed the officers in north London, attempting to kill one and causing GBH / ABH to many others. His actions were “a manifestation of his illness” but he was also criminally responsible. Same could be said of everyone convicted in manslaughter on the grounds of diminished responsibility. Contrast such outcomes with cases like that of Mohamoud ELMI who stabbed PC Adam KOCH in Birmingham last year – he was found not guilty by reason of insanity. Three different serious kinds of case, three different outcomes in the face of overwhelmingly serious mental illness – two that amount to provable criminal intent and one that doesn’t: but all a manifestation of illness.

      I stand by a point I previously made: that capacity is often confused and conflated for other legal issues and it is certainly misunderstood in terms of the public interest test.

    2. Bearing in mind it is for ‘life sustaining treatment’ wouldn’t there be a power of entry, albeit by proxy, under Section 17 PACE? A simple part of PACE many AHMPs think allows us to remove people too. Also an over used part for ‘Concern for welfares’

      Back on topic but I’m noticing Paramedics and hospital staff using it more and more then calling police as ‘enforcers’. Unfortunately, the police all to often usually don’t ask enough questions and a bit too quickly accept the role

  4. Great summary. As a Paramedic I applaud your understanding of a complex question. It’s challenging to apply with levels of understanding and cognition that can fluctuate. Often family / other parties are trying to infuence the decision.

  5. I want to drill down on this issue of capacity and ‘forming intent’, and fallacious thinking.

    I do wonder what people are thinking when they use the word ” form”…as in, to form intent. What exactly does that mean? Unless someone is comatose or catatonic, or brain damaged in some sort of way that I do not know of the proper medical terminology to describe, thoughts are constantly being – formed – while there is a stream of consciousness. Psychosis does not rob someone of thought formation. One may be tempted to retort that the word form is not significant, that intent is the word with import. However, I say that it is absolutely important. Form, in this context equates to cognition.

    Now, to intent… The brain of a person who is psychotic, i.e. neurologically (to emphasize that this is not a psychological phenomenon) detached from reality produces aberrant, bizarre, and in some cases dangerous thoughts that would not be produced in the stream of consciousness in the absence of the disorder or psychotic state. These thoughts can be goal-directed, i.e. “intent”. Even in a somnolent state, the brain can produce goal-directed thought, where there is intent to do something or other. So if a floridly psychotic person believes that his mother is the devil, he may certainly form the intent to kill what his brain believes to be the devil, yet he is neurologically detached from a normal waking reality. Of course, he “knows” that the consequence of his action will be death. He wants the devil to be killed. So what is this nonsense that a psychotic person may not be able to form criminal intent (if criminal means knowing that harm or death is the desired outcome).

    The human mind, with its primitive instinct to punish goes about like a technician in matters of the law, constructing a fallacious assertion that the mind afflicted with psychosis somehow cannot form intent to harm. The examination of capacity to form intent to harm is the improper cognitive exercise and the wrong legal test to be applied where psychosis is concerned. Within this context, it would be legitimate to ask if someone should be held criminally responsible for forming intent to harm while in the state of REM intrusion. We have just been driven into a state of incapacity to grapple with philosophical innocence. We are barbarians. This instinct compounded with widespread misunderstanding of psychosis creates these dangerous fallacies that repellant forensic clinicians do not care to challenge.

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