Doesn’t Lack Capacity

One year ago, Victor Osei killed his neighbour Anthony Higgins in a brutal attack.  Having pleaded guilty to manslaughter on the grounds of diminished responsibility, Mr Osei has been given a hospital order “without limit of time”, (presumably, a s37/41 restricted hospital order) and will be detained until such time as his psychiatrist and the Ministry of Justice are satisfied it is appropriate for him to be discharged.  The psychiatrist who gave evidence in the criminal proceedings, Dr Nigel Blackwood, seems to have been keen to stress the supervision which follows discharge after a homicide, noting that it is different to community care which is provided before a patient has seriously offended.  Conditional discharge, as it is known, allows the hospital or MoJ to recall any patient to hospital if there were to be a repeat of non-compliance with medication, for example.

I’m obviously now blogging a lot less frequently than before and trying to avoid individual commentaries on cases where all I have is the same news article as you, in this case from the Kilburn Times!  But something in the journalist’s coverage of this case pricked my attention and I thought it’s worth emphasising in the context of the reported events, precisely because it potentially demonstrates a misunderstanding of the legal concept of ‘capacity’ and its relationship to both the Mental Health Act 1983 or to criminal proceedings.

A few hours prior to Mr Osei’s attack which killed poor Mr Higgins, the police and fire services were called to the defendant’s home address to report of smoke and a smell of burning.  Upon investigation, Mr Osei was found him sitting in a chair, looking out of the window and he was ‘not cooperative’.  It is reported a police officer formed the view he appeared to be suffering from mental health difficulties but there was no fire and, despite the ‘odd nature’ of the call, Mr Osei “did not lack capacity” so no further action was taken.


In due course, I assume there will be an inquest in to Mr Higgins’s death and the court will examine in detail the specific materials which have bearing on this initial visit a few hours before the fatal attack.  It’s entirely conceivable the Kilburn Times is not covering all of the detail and I don’t know whether the way the journalist has written up the conclusion of criminal proceedings, fails to mention very relevant things.  I have no way or knowing whether the more hypothetical point I’m about to make about ‘capacity’ is one which is relevant to this case or not – because I’m not privvy to the detail of things.  I know how crucial this is to understanding events, so I can’t stress strongly enough that what follows is no criticism of anyone: it’s a point of reflection on the way in which the journalist has reported the matter.

“Despite appearing to be suffering from mental health difficulties … Mr Osei did not lack capacity”.  Various initial thoughts about this kind of write-up or opinion –

  • For what, precisely, did Mr Osei “not lack capacity”? – legal capacity is decision and context specific, it’s not normally something you either have or don’t.  Of course, if a patient is literally unconscious, then they will indeed lack capacity for more or less everything for the entire time they remain unconscious but for any conscious person, they may have capacity to decide whether they would like a drink, whilst lacking capacity to decline medical treatment, for example.  You may have capacity to make decisions about sexual activity, whilst lack capacity to manage your financial affairs – or vice versa!  But the main point is this: there has to be an issue or a subject, in respect of which capacity is assessed!  For the emergency services, the question is most usually “I think you need medical or mental health assessment, would you like go to A&E to get some help with that?” or similar.
  • The Mental Health Act 1983 – the MHA is not “capacity driven” legislation.  In some countries, healthcare legislation can only be forced upon someone who lacks legal capacity to take decisions around their mental or physical health.  However, this is not the case in England / Wales.  A person can still be ‘sectioned’ by an AMHP after MHA assessment, even if the person “does not lack capacity”.  Doctors and the AMHP will of course assess capacity to consent to treatment, including hospital as part of their MHA assessment but it’s not the determining variable.  In other words, if someone has a mental disorder “of a nature or degree” that makes it appropriate they receive treatment in hospital, they the person can be ‘sectioned’ if the AMHP thinks it necessary after securing the doctors’ medical recommendations.  In other words, even if an emergency service professional from police, fire or ambulance had suggested someone receive mental health and they declined with capacity to do so, they may still be ‘sectioned’ but that would be a medical / AMHP decision.
  • Section 135/136 MHA – of course, the report details that this ‘capacity’ encounter occurred in Mr Osei’s home, so there could be no lawful recourse to use of s136 MHA to bring about an assessment.  It is for that reason, I was left wondering what might have happened if an AMHP had been contacted?  The news report does say the defendant was “suffering from mental health difficulties” – s13 MHA states the Local Authority has a “duty” to arrange for an AMHP to consider the need for an assessment if an application (for admission to hospital) may be required.  One way of #team999 thinking about such things, is to ask the question, “Would the police have used s136 MHA if they’d encountered a person presenting this way in a location where use of s136 would have been lawful”?  In some parts of the country, more than half of all people detained by the police go on to be admitted to hospital, so it’s reasonable to think that if s136 would be the officer’s option in public, then s13 is engaged “to consider the case”.


These are general points of observation: as with all things reported in local newspapers, there are a number of reasons why the coverage may be partial so nothing in the article should be taken as a full, accurate account and nothing in this blog is a comment on what was done – because I can’t know precisely what that was and crucially, I can’t know why that was decision taken or the basis of that decision.  It is because the above points are more generally relevant to #team999 attending private premises for concerns about people’s welfare or to incidents which are more obviously crisis incidents, that it struck me these points were worth making again (because I’ve made them before).  I’ve certainly had reason to raise these points at work in situations where I did have the relevant information, so they will be relevant observations, generally speaking.

It’s almost never correct or appropriate to just say “he has capacity” or “she lacks capacity” – the question of capacity is always going to be decision-specific, so what decision are you asking this person to take?  That decision is also going to be context specific, so how does that affect things? … if someone lacks capacity to decline medical treatment because they’re drunk, for example, can we wait until they’re sober before revisiting the question of medical care?  Well, if they’re drunk and have cut their arm, requiring stitches for a superficial wound, it can probably wait a few hours until they’re sober.  If they’re drunk and smashed their head open and could suffer a life-altering or life-threatening injury, it probably can’t wait.  Even where someone does lack capacity, action taken in respect of them.

The risk of course is, unless these legal points are understood, safety is risked because of the potential that perceptions of “lacks capacity” could lead to inaction where action were not only required, but legally straight-forward to implement.

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, 2021

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.

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