There’s an awful lot going on at the moment, it’s genuinely hard to keep pace with it all – this time, arising from the controversial video from Northamptonshire Police which led to the Court of (Criminal) Appeal finding the Chief Constable of Northamptonshire Police in contempt of court and fining the force £50,000 in a legally unprecedented move.
When you watch the video in the hyperlinked article, above, you may still feel a state of confusion about what exactly was going on and to be frank, so do I – even now. The point I’m trying to make in this post doesn’t hang on a full understanding of the incident or the video, but upon just some of the dialogue used within. You can go Google searching for the wider story, if you want it.
In short, however, the complainant who is bringing a civil claim for damages against both the Metropolitan Police and Northamptonshire, left her home in September 2021 to get away from things on the brink of a mental health breakdown. A concern for her welfare was raised by her family and her car located in Northamptonshire, leading to officers attempting to pull her over. She did not immediately stop and after the vehicle was ‘stung’ (to deflate the tyres), she was detained, restrained on the floor using not inconsiderable force (see the video).
CAPACITY & THE MHA
The Metropolitan Police had told Northamptonshire something along these lines –
“You are gonna have to consider section 136 powers. We have medical staff saying that she lacks capacity, that’s the information we’re getting from the Met.”
The officer dealing with her at the scene reported back –
“She presents as having capacity.”
You can listen to the rest of the radio messages in the video referred to above, and understand more about the broader incident and its context if you wish. I’m not attempting in any way to dismiss the importance of the other aspect of the story – about failure to disclose body worn video and the subsequent legal turmoil in the Court of Appeal – it’s just that it’s not relevant to the point I want to make here about capacity.
NOT CAPACITY LED
There are a few main points to make all at once because they matter simultaneously –
- The Mental Health Act 1983 is not capacity-specific legislation – it doesn’t turn on whether or not someone “has capacity”, in either general or specific terms.
- Even to the extent that assessment of capacity is done during MHA assessment by an Approved Mental Health Professional and doctors, it is not something you generally either “have” or “don’t have”.
- Saying someone ‘lacks capacity’ is quite literally, legally meaningless – you might as well say they are “condition orange”, it means more or less the same.
- Capacity is a decision-specific, context-specific issue – not something you globally lack or enjoy, but something to be assessed in light of a particular circumstance.
- For example, you might retain capacity to make decisions about your living arrangements, but also lack capacity to manage your own financial affairs.
- You might lack capacity to decline hospital admission, but retain capacity to decline specific treatments.
So this conversation in Northamptonshire about what the Metropolitan Police seem to be saying and indeed what “medical” people in London are telling them, makes no sense, taken at face value.
The threshold to use s136 MHA is written down for us all in s136(1) MHA and it makes no mention whatsoever of capacity –
Section 136(1) MHA –
“If a person appears to a constable to be suffering from mental disorder and to be in immediate need of care or control, the constable may, if he thinks it necessary to do so in the interests of that person or for the protection of other persons, remove the person to a place of safety.”
EDUCATION, TRAINING AND LEADERSHIP
It’s striking me more and more, as I listen to the Southport Inquiry, the Nottingham Inquiry and the Lampard Inquiry; as I continue to read Preventing Future Death reports for my PhD research and hear of things being said and done within policing around mental health, that many are going backwards. Perhaps this is because of more experienced officers leaving, as I did, and more and more young people are entering the service who are not being trained well on this topic. We know from the 2018 report “Picking Up the Pieces” that Chief Constables who promised to delivery training on this didn’t and before that could be correct, as HMIC encouraged them to do, the zeitgeist changed with the advent of RCRP.
Last year I saw the “mental health training” being delivered by a university to new recruits in some force areas and it was woeful – a short PowerPoint. Legally wrong, clearly written by people who do not know the subject and likely to get people in to trouble, along with their forces. It was the opposite of ‘lessons learned’. Then remember the training for Right Care, Right Person was also legally wrong, likely to get forces in to legal difficulty and quite arguably, it already has, in a number of inquests.
There is ABSOLUTELY NO DOUBT in my mind at all, the Nottingham Inquiry is going to end up emphasising criminal investigation of mentally ill suspects is not well grounded in law and fails to grasp the public protection nettle. We saw a succession of police officers, including accredited detectives and senior detectives also misusing the term ‘capacity’, albeit in a different way to the example in this post, and effectively making it a proxy variable for the ability to criminally prosecute someone at all. I had discussions with a mental health trust this week about exactly that issue because they are having difficulty getting their police force to investigate basic crimes, without doctors providing a “capacity statement”, which just isn’t a thing in criminal law.
Some people seem to be literally making things up as they go and, to quote a barrister who gave evidence to the Nottingham Inquiry, it is “legally nonsensical” and “very, very dangerous”. If NPCC and / or the College of Policing aren’t looking at these issues and recognising they have an awful lot of work to do, against a backdrop of Chief Constables now lacking appetite to do this complex work properly, then they’re missing something incredibly important about the current moment because I suspect the Nottingham Report, once it is eventually published, is going to be this generation’s Jonathan Zito moment and the call for reform will, quite rightly, be intense.
Inattention to detail in this domain – including legal detail – costs lives.
Capacity is not a thing in criminal law – and it’s not something you “have” or “don’t have” in health & social care law.
Awarded the President’s Medal, by
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, 2026
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 