Scrutiny is ongoing this week for the so-called Assisted Dying Bill. During a session of evidence about its provisions, the Chief Medical Officer, Professor Chris Whitty said something which has caused a few laughs, for all the wrong reasons and then a semi-serious discussion on X – Doctors’ knowledge of the Mental Capacity Act 2005. One of the requirements and safeguards in the proposed Bill is that adults taking the decision to seek an assisted death must have the mental capacity to do so. Of course, capacity is assumed to be present rather than not, but given the gravity of what is at stake and the opacity of the issues, there will be a need for MCA assessments on many occasions.
Professor Whitty stated –
“Issues, for example, around mental capacity – as determined by the Mental Capacity Act 2005 – are dealt with every day, in hospitals up and down the country; every doctor and nurse above a certain level of seniority should be able to do that normally … there is an absolute expectation within the Act, for example, that the more serious the decision, the greater the level of capacity that someone needs to have.”
He went to claim that doctors know the Act “inside out”. This is the aspect causing not just a little laughter not least because he got the Act wrong in the above quote:
There is no expectation in the Act itself “the more serious the decision, the greater the level of capacity that someone needs to have.” There may be a professional belief the more serious the decision the more certain the professional would want to be about capacity for a decision, but that’s certainly not explicit in the Act and is in any event, a different, almost extra-legal point.
LEGAL EXPERTISE
Some doctors are also legally qualified – and for various reasons. Forensic psychiatrists, for example, are engaged in practice at the borders of medicine and the law and I know of several who are qualified barristers or solicitors, albeit non-practising. That acknowledged, it’s fair to point out this is really not the norm. Of course, like all jobbing professionals, there will be a working knowledge of the law within the medical, nursing and other professions, but rarely predicated on good quality training, often predicated on received knowledge and organisational myths and folklore or upon personal initiative to study it and understand it. I generalise, of course but based on experience of discussing this point with many because it also reflects my experience of getting to grips with mental health and capacity law.
There is good reason to wonder about legal claims by doctors (and others). The first one I heard which confused me to tears was when I heard an Emergency Department doctor incredulously telling me “We’re not a Place of Safety under the Mental Health Act”. Really, doctor? – explain s135(6) MHA to me, then. It explicitly states hospitals are a Place of Safety. The legal issue of whether a location is a Place of Safety is not the same thing as the issue of whether you will agree to receive a particular patient in particular circumstances. The hospital may well wish to say “no”, and for a variety of legitimate reasons – that decision does not undo the MHA itself: a hospital is still a Place of Safety in law, even if not in the doctor’s head.
In fact, the very first mental health law query I ever bumped up against also involved similar problems. It involved me, another probationary constable and our sergeant being sold a lemon by a confident mental health nurse –
“Yes, you can force entry to this section 3 patient’s house to force them back to hospital because they’re absent without leave.”
“Would you mind telling me: which part of the MHA gives me that authority?” … [tumbleweed] … “well, if you can’t answer, I’ll assume you may not be right and may have just made that up.”
He wasn’t right – he had made it up.
We shouldn’t be surprised at this and it’s not significant criticism: we know doctors, nurses and others don’t get legal training for their role – or if they do it’s a couple of hours. Even Approved Mental Health Professionals, the ones who are legally trained, examined and warranted, have myths and folklore bouncing around their profession which seems to be resistant to correction. I’ve lost count of how many AMHPs I’ve known tell me that it’s not legally possible to obtain a s135(1) warrant from a Magistrate unless you’ve already tried to gain entry to the premises or if you already know you can secure access – this simply isn’t true and even the Code of Practice to the MHA makes this clear, yet I’ve known it said a lot.
I once spent a very long, icy cold Saturday evening outside a house with a barricade situation, having to argue this particular legal point because without a warrant, the police had no legal powers whatsoever to resolve the very unsafe situation – the AMHP eventually went to court out of hours.
CORONERS COURT
My favourite story on this topic occurred in the context of an inquest several years ago. As part of pre-inquest proceedings, it emerged the coroner had requested an expert witness report from a consultant forensic psychiatrist. The situation involved a mental health crisis in private premises, first attended by the police and a street triage team requested an AMHP and MHA assessment. When those professionals arrived at the home, the police left – as the triage nurse said they should and the AMHP / DRs did not object to it. The MHA being completed, they wanted to section the man but there was apparently no bed available so they asked for the police to return and look after the patient until a bed was found.
The police declined to do so and in the expert witness report a claim was made that not only did the police have a duty to return, they should have done so then removed the man to hospital under the Mental Capacity Act 2005.
WOW! – this is all kinds of wrong.
The Chief Constable of the relevant police force asked me to write a report about this, which I did and they asked the Coroner to add me as a witness to rebut the claim. The Coroner rejected that application on the basis that I was not an expert (despite having been an expert witness a number of times by then), mainly because I had no legal qualifications.
But then, neither did the psychiatrist! … I had specifically checked that when reading his report, then drafting my own. He was not one of those who had qualified in law and has as many legal qualifications as me – ie, none.
CULTURES AND ATTITUDES
It speaks to something in the way we view professions and expertise that one non-lawyer – a doctor – can be considered an expert even when touching on legal, non-clinical matters; but another non-lawyer – an actual legal officer – cannot, despite being just as legally “qualified”, ie, not qualified at all. In the end, the force’s barrister just questioned the doctor to the extent that he eventually admitted not knowing the case law which prevents the police removing people from private dwellings under the MCA and being unaware you just can’t swerve off down the MCA route, midway through the MHA process (unless the MCA is being applied to entirely separate legal issues than mental disorder and MHA admission difficulties).
Of course, it’s just as easy to point out problems with police understanding of the law. This post is not about doctors, really – or any other professional groups. The fact is, legal literacy right across the board is not where it needs to be for the purposes of daily professional practice or policy and practice development. We’ve seen a number of inquests over the years where formally agreed protocols on the operation of the MHA have not survived contact with scrutiny in Coroners’ courts because of legal errors which were signed off by governance boards in trusts and police forces.
And this is not going to change any time soon.
The Mental Health Act is pending review as the Mental Health Bill makes its way through Parliament and the Mental Capacity (Amendment) Act 2016 will take effect at some point. We saw amendment of those parts of the MHA which affect the police in 2017 and those laws are yet to be fully recognised and respected in practice almost eight years after they took effect so this post is most certainly not about doctors. It’s about the lack of legal literacy that is an inherent part of our system and it is a massive shout out to those doctors, nurses, AMHPs and police officers who have had the personal wherewithal to privately read and study the law sufficiently make of themselves real legal eagles, irrespective of formal qualifications or recognition for that work or self-development of those skills.
No professional group known to me knows all of the law “inside out”, not even lawyers who often make that point themselves.
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, 2025
I am not a police officer.
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 