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!
Winner of the Mind Digital Media Award.