Capacity to Consent

This BLOG has been some months in the thinking and making, including the need for me to pin down several people for a discussion. I’m grateful for their help, but I’ve decided to leave them un-named at this stage: because I want in no way to associate them with criticism of the ideas I sought them out to discuss. They helped confirm what I was thinking, so I’d like to take the hit if one is due from what follows in this post about the capacity of vulnerable to consent to a course of action.

The law presumes that people over the age of 16 have the capacity to make their own decisions and indeed, that they may take unwise decisions, provided they have the capacity to take them. The Mental Capacity Act itself outlines how capacity is enjoyed with regard to a particular decision where a person can communicate their decision, understand it, retain information relevant to making it and evaluate the decision by employing that information. Where an officer believes that a person is lacking capacity, they need to be especially wary of doing things ‘by consent’. It’s an ethical minefield!

By way of one further piece of background, consider the admission to hospital of a person who has been assessed under the Mental Health Act by an Approved Mental Health Professional (AMHP) and two DRs. If the assessment concludes that admission to hospital as an inpatient is necessary, the question must be considered of whether the person has the capacity to make that decision for themselves. Where they do, admission may proceed on a voluntary basis – and having admitted themselves to hospital on a voluntary basis, the patient is then free to leave at a later stage, subject to any developments in their mental health. If they lack capacity to take the decision, then the Mental Health Act must be used – this is clear in the new Code of Practice (2015) to the Act. Indeed, the Code goes further: if the capacity of a patient is known to be fluctuating for any reason, then the Act must still be used. Apart from anything else, use of the Act ensures that various checking mechanisms and safeguards kick in.


This post is about two situations –

  • The ‘voluntary’ removal to A&E of vulnerable by police or ambulance services, in order to access mental health assessment via psychiatric liaison services.
  • The ‘voluntary’ decision to remain with frontline police officers who may consider using s136, pending information or assessment by a street triage type of service.

Where a front line response police officer encounters a person who they believe to be vulnerable because of a mental health condition, they have a limited set of options available to them. Historically, it was to take someone on a voluntary basis to an A&E department; or to invoke section 136 of the Mental Health Act if they were in a public place and felt that voluntary removal was inappropriate. For an example of this dilemma in practice, see the case of Nicola EDGINGTON from 2011 – officers first encountered her in the private area of a taxi rank where s136 MHA could not be lawfully used and because she wanted to access help available via A&E, officers transported her there. They remained briefly to ensure she was booked in with reception, that staff would keep an eye on her until the assessment occured. She was later seen, assessed and admitted to hospital as an inpatient from where she absconded and murdered Sally HODKINS. There was a subsequent review by the IPCC about those decision.

In that situation, officers did not have the s136 option available: they encountered her in a private place, but once Nicola had voluntarily removed herself from that location, she surrendered her right not to be detained under s136 and officers could have used it at the A&E if they had felt the need. So this post focusses on the capacity of people like Nicola and hundreds of others to either attend or remain at A&E – does that person fully understand, retain and employ the information relevant to that decision, and can they communicate it? … and where the original encounter was in a public place, is that person free to leave that situation and have we made them aware of that? We are routinely obliged to explain things like that in other situations where there could be doubt as to whether or not officers are acting using legal powers: stop/search is one; voluntary interviews under caution are another.


Imagine another situation now that we have street triage schemes around England and Wales – front line officers encounter a person on a canal side or railway line after serious concerns for their welfare are reported – officers undertake a search and find that person in significant distress. They still just have the two main options, unless they contact street triage or ask triage to attend: voluntary A&E referral or use s136. Most triage schemes ask officers to contact them prior to instigating section 136 and indeed, this is a suggested step in the new Code of Practice chapter 16. Whilst that telephone call or radio call is being made and whilst triage are looking up patient records or travelling to the incident to undertake a face-to-face assessment, what is the legal status of that person, what is their capacity to take decisions that are open to them and have we fully explained what those options actually are?

imagine a man who has tried to access a railway line in a suicide attempt, railway staff pulling him back from the track and holding him a the platform edge until the police arrive – and when they do, they call for street triage who start making towards the railway station and it takes 20 minutes for triage arrive. I’ve expressed my view elsewhere that in such situations, it strikes me that person is held against their will so the legal basis needs to be clearly understood. Are the officers using s3 of the Criminal Law Act 1967 to prevent crime (further trespass on the railway)? – have they arrested the man for the offence of trespass on the railway and are waiting for triage’s medical advice before deciding where they should take him? – have they, in reality, detained him under s136 MHA because of the immediacy of the required action …. or are just holding him anyway, without reference to any legal powers in particular?!

But what about this capacity issue? Does the person concerned have the capacity to understand that voluntary removal to A&E could involve a twelve-hour wait in the department, do they know whether or not officers will remain with them, do they understand what could happen at the end of the assessment process and what would happen if they did not remain there until the end? You can repeat that for the triage encounter: do they realise how long they are agreeing to remain for, do they understand what may happen after the nurse has undertaken an assessment and what would be the consequence if they chose not to remain? If we think back to our Mental Health Act assessment by an AMHP and two DRs, above, we can see the difficult ethical territory each of these police decisions is in. It strikes me that where the police are dealing with a vulnerable person who lacks capacity and who is, in effect, detained anyway pending the arrival of triage, we may as well just be honest about the fact of that person’s detention and afford them their legal rights!


Two points on capacity, one of them based on a real situation in which a triage nurse had advised that voluntary admission to hospital was the correct outcome and that a bed was available. Response officers proceeded to use after a triage assessment and it gave rise to a long email thread between everyone involved. The officers had done so despite the nurse’s advice because they were unprepared to take the risk amidst a voluntary pathway that an individual would change their mind, exercise their right to leave and attempt to take their own life again. The nurse’s point was that once they are a voluntary patient in hospital, the ward staff could use a holding power under s5 MHA if the person attempted to exercise their right to leave.

This is back to de facto detention territory and more to the point, is legally wrong. Mental health and capacity law education for mental health nurses is less comprehensive than you might expect. If a patient has the capacity to consent to admission, they also have the capacity to choose to end their admission by leaving. If there is doubt about their capacity to consent or any sense in which they have a fluctuating level of capacity, then they should be fully assessed under the MHA – rather than at a canal side or on a motorway bridge – by an AMHP and two DRs with a view to using the Act itself.  So one thing we’ve learned about triage, is that mental health nurses don’t always understand the legal issues made plain in the Act and the Code. (This example is far from being my only example: there was also the email from the triage nurse to police encouraging them to do exactly what the judge in the Sessay case said officers should not do; and there were others besides.)

Finally, a slightly separate point which I feel it in fits here, hence my point about ‘taking flack’ in the opening paragraph: why can’t we have a proper discussion of these ethical and maybe even philosophical issues as they affect operational policing? I propose the position that we are somewhat prevented from doing so in the various meetings and conferences that I’ve attended. I’m all too aware when you raise these points, some will try to shut down the discussion because quite simply: street triage works, the end. It’s almost as if people’s rights don’t matter because of the perceived and obvious benevolence of the initiative. Yet where we see difficulty, or even controversy, in other areas of policing – like stop/search for example – we expect to see a proper level of thinking and discussion about it. And we also must never lose sight of the point that no-one in this country is obliged to engage with mental health services until such time as they are compelled by law to do so. Some patients don’t want to do so and many have very good reasons for this! We see senior people in politics and policing taking about the invidious invasion of people’s rights; the insidious impact of unconscious race bias and so on – we want to talk about people’s civil and human rights. We should do so here, not least because these things are not being properly evaluated.

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

Winner of the Mind Digital Media Award.

13 thoughts on “Capacity to Consent

  1. Working on an inpatient unit, I am regularly faced with patients who clearly have either no or fluctuating capacity who AMHPs, section 12 doctors and RMNs state can agree to informal admission. It’s a real problem legally, made all the more telling when you tell the admitting professional their patient is free to leave and they immediately tell me what a bad idea that would be!

  2. Great post as ever however I’d challenge your comment which reads “but once Nicola had voluntarily removed herself from that location, she surrendered her right not to be detained under s136 and officers could have used it at the A&E if they had felt the need.” Section 136 MHA says “If a constable FINDS in a place…..” I would argue she was never FOUND there. I know there is similar case law in relation to criminal offences however being FOUND was not an issue as it is not in the wording of the offence. A similar argument could (I would go so far as to say should) be had about removal from an address under the MCA by police then 136 MHA used later at A&E when officers have never left the patient at any point.

    Is there anyway the CoP could enlist the help of a Court of Protection judge for example to get guidance on some of these legally ambiguous yet rather common issues? Just a thought.

    1. Several people have looked at the point you question, not least the IPCC in their investigation of the incident and this point was raised in Nicola EDGINGTON’s criminal trial when her defence attempted to blame the officers for not using the power. The officers quite rightly argued they couldn’t have used the power at the first encountered but could have done much later when, in the A&E department, she decided to try and leave. They IPCC went to some lengths in its report to counter the suggestion that this decision not to use s136 had directly contributed to circumstances that allowed the killing to occur – a point being made by several people. They ultimately concluded that the officers could have used it, but that it was a judgement call about necessity and that in a sense, their decision had been vindicated by the fact that Nicola did, in fact, remain at A&E for assessment and was properly admitted as an inpatient. The other legal opinions I’ve encountered on this (mostly informal views but one formal opinion) all agree that voluntary movement from a private to a public place surrenders the situation originally encountered. In that sense, ‘finds’ is in the ongoing present tense, rather than specific to the original circumstances of the encounter. To give just two other examples, ‘drunk and incapable’ and ‘drunk in charge of a child’ both required that a person “is found” in a public place (etc..) You could also extend the same principle to some possession offences.

    2. Final point: Court of Protection judges don’t give legal advice except in the context of a particular case. You’d need to put a real situation before them for judgment, to see their views.

  3. Code of practice ch 13, particularly figure 6 and 13.57 – 13.62. Suggest that MEntal Capacity act and DoLS are very much an option.
    I suggest you may want to review your opening remarks about when the Mental Health Act must be used or provide relevant references in the code to demonstrate it.
    The use of the MHA is only a ‘must’ if the incapacitated patient is objecting to admission or treatment, or there is evidence they would have done so before losing capacity.

    1. Thanks, Matthew – I do understand that. Remember who the BLOG is for: frontline cops, most of whom have never heard of DoLS and probably have no training on the MHA. I’ve simplified: you obviously are arguing I’ve over-simplified to the point where it is now factually wrong. The main point about this post is two-fold: be careful about doing ‘voluntary’ things in two specific contexts; be aware that capacity to consent to a proposed course of action can get problematic if it’s not considered. Also have to wonder whether there has ever been a mental health nurse working in the community who has arranged a DoLS based admission to hospital from a railway bridge or platform after a clinical interview in that location lasting minutes? I’ve never known it and suspect it will be a long time until we hear of it, unless you know otherwise? I’ll add a sentence to the paragraph to add the required confusion for the sake of accuracy.

    1. You don’t: but it almost certainly wouldn’t be considered in the situations to which this post refers unless the incident occured in someone’s prviate premises and there was a grave clinical emergency that required removal to A&E urgently for intervention.

    2. I think many Mental Health Nurses would not fully understand it. I know I have advised mental health liaison nurses to do exactly that from A&E.
      Lack of capacity should not mean unnecessary delay of convening a full Mental Health Act Assessment of the person is not objecting/resisting admission.
      The application of DoLS is a matter for the inpatient nurses once an individual has been admitted as the short business of admitting would not normally be deemed a deprivation of liberty.
      I wonder why street triage does not involve the use of the MCA more often.
      (Sorry if I seem picky but I thought accuracy would matter)

      1. Yes I recently had to do this. Two psychiatrists walk away saying that the bizarre presentation is as a result of an infection and leave a scribbled note saying the MCA should be used.
        4 hours of wrangling with 3 different paramedics before the transfer to A&E could sorted. Ambulance crew were refusing on the grounds that to take the non consenting patient to A&E would be an assault and they weren’t covered.

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