It literally doesn’t mean anything to say somebody “has capacity” – or they “lack capacity”, for that matter. It didn’t mean anything when I started writing this blog and it doesn’t really mean anything now. You may have gathered, it makes me want to scream every time I hear it because I’ve done quite a bit to get to grips with this. In addition to covering the topic on this blog I even went to the lengths of contacting the CPS in 2017 when they were revising their guidance on the prosecution of mentally disordered offenders and asking them to say something in their national guidance about it – and they did!
Because I’ve covered this a number of times before, I’m not going to repeat the point here in another lengthy post – have to wonder sometimes if it matters anyway but if you do care and are interested, you can see previous blogs:
You can even see utter exasperation in my tone in this previous blog, published exactly ten years ago today and if I may quote myself from that time –
“AAARRRRGGGGGHHHHHH!?!?!?! – STOP IT! … please, stop it!?!“
It’s been profoundly annoying me for well over a decade given the state I was in with this as long ago as 2014 and I’ve now put the above quote in bold because I’m ten years more exasperated – and I would now wish it to stop before my head explodes, please and thank you.
Enough jesting: let’s talk about why this actually matters in the real world.
WHAT DIFFERENCE DOES IT MAKE?!
You may quite legitimately wonder why it matters so much to drive me spare – don’t we usually have a notion of what people who use the phrase are getting at? This bit I will repeat and summarise from previous posts, not least to persuade you to go and read them if you didn’t click the links as you read to this point.
- Capacity is a concept in law, of course – from mental health and capacity law. But when it’s used for those purposes it is both context and decision-specific. You don’t just have or lack capacity, you have it at a particular point in time in respect of a decision you need to make.
- Except of course where you are completely unconscious where you lack capacity for pretty much everything for as long as you remain unconscious, but those cases are rare and straight-forward.
- Most usually, the police are making assessments of capacity with injured people who may be declining ambulance or emergency care and in those situations the decision in respect of which capacity is assessed is the decision to accept or declining medical care – does the person have capacity for THAT decision, specifically?
- If you start using “has capacity” or “lacks capacity” in discussion of someone’s potential criminal liability, you are literally making things up and it could easily lead to a erroneous outcome in an investigation.
- Capacity is not a concept in criminal law, at all – it’s all too often used as some kind of proxy assessment to determine’s someone’s criminal liability. You might as well say the person is “condition orange” for all the legal sense it makes to determining the issues of whether there’s sufficient evidence to charge and whether it’s in the public interest to prosecute.
- Plenty of people who supposedly “lack capacity” are prosecuted and plenty who don’t, aren’t – you can see CPS guidance on the prosecution of offenders which also makes this point clear. (You also don’t need statements of evidence from doctors or psychiatrists, attesting to someone’s capacity – all investigators should have read this document.)
So do me a favour will you? – start asking people what on EARTH they mean if they start saying or typing that someone “lacks capacity” without further explaining the decision for which they think the person lacks capacity. And please point out how meaningless that statement is if they’re talking about criminal investigation and prosecution.
This may be a hill I die on – I do fear it may be all too soon!
Winner of the President’s Medal, the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation. (c) Michael Brown, 2024
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 – www.legislation.gov.uk
Mental Health Cop 