This tweet from a @TiredSgt has provoked quite a bit of discussion today (and just for the sake of balance there was another, unrelated thread in which a psychiatrist said the police “couldn’t recognise capacity if it slapped them in the face with a wet fish” —

So first of all, I’m glad we’re all getting on well and making friends – collaboration and improved understanding can only possibly improve as a result of such shared respect, I’m sure!

I’ve chosen to blog about this one because it’s not unique or isolated – plenty of service users have stated on social media in recent months that they’ve reached out to services of one kind or another when in crisis or feeling suicidal and the principle response has been focus on legal capacity – “you’ve got capacity to make the choice, so it’s up to you” sort of thing.  We can obviously see our very tired sergeant is a tad frustrated, and who wouldn’t be?  Taking this account at face value (mainly because it’s so often claimed, that some of these accounts have to be right), there are two main things wrong with the response —

• It’s just legally wrong, for a start! … sometimes, despite capacity being in tact, the state still has a role to protect life.
• It seems to put the determination of these legal questions ahead of the humanity that is the priority.

It sounds to me as if this person needs some help and support, regardless of debates about laws – so why don’t we ALL just try hard to ensure they get it, and more slowly untangle whatever the legal issues are later, if necessary.

But if we really must focus on capacity, let’s look at it, by all means! —

MENTAL HEALTH LAWS

Some countries’ mental health law is entirely predicated upon capacity, but not all countries and we can see this distinction in the United Kingdom, because we have three different legal systems for mental health law – 1) England/Wales; 2) Scotland and 3) Northern Ireland.  In Northern Ireland, the Mental Capacity Act 2015 (which is not yet in force, despite the year of Royal Assent) is, as the name suggests, entirely predicated on the concept of mental capacity.  If youhave capacity to take a decision, the law will ultimately allow you to take it.  In the other two jurisdictions, there is a distinction between mental health law and mental capacity law.  England/Wales has the Mental Health Act 1983 and the Mental Capacity 2005 – they do different things.  Scotland has the Mental Health (Care & Treatment)(Scotland) Act 2003 and the Adults with Incapacity Act YEAR – and again, they do different things.

This means that have England, Wales and Scotland have mental health frameworks (their MH Acts) which can be used in situations where someone DOES have capacity to take certain decisions.  When the new Northern Irish law eventually kicks in, this will not be the case for them.  You may wonder why the distinction and what difference it makes in practice?  Well, when Professor Sir Simon Wessely was conducting the independent review of the MHA in England, one of the questions he grappled with was whether England should move to a legal approach which was entirely predicated on capacity, like Northern Ireland had.  In the end he decided against it and one example given to show why was around eating disorders and anorexia.

Where someone with an eating disorder is losing weight to such a degree that it’s becoming incompatible with life, it often remains the case the person will retain legal capacity around the intake of nourishment.  So if your mental health law is entirely predicated on capacity and the patient is declining treatment, that must be respected and they may die.  If your mental health law does allow for what the academics call ‘substituted decision-making’, it can allow provision of nourishment as treatment, without consent if necessary, and this may assist in maintaining life and securing the beginning of recovery.  Professor Wessely himself pointed out that many patients who had been forced when precariously close to losing their life to their eating disorder, had been subsequently grateful to have received that care when their recovery was more secure and progressing.  It also made me think of stories I’ve heard from individuals who fell from a height in an attempt to die but survived, against the odds.  Kevin Hines fell from the Golden Gate Bridge and was one of the to survive the drop.  Because he survived he was able to point out that he regretted the decision as soon as he began to fall and was glad to survive – he’s spoken to others who unexpectedly survived and they ALL said the same thing.

CAPACITY TO DIE

So where someone is consumed by suicidal or para-suicidal ideas to harm themselves, their legal capacity is not necessarily the determining variable, because mental health law in England, Wales and Scotland can be used where someone has capacity.  << It doesn’t mean it must be used, just that it can be used – all situations turn on their individual merits, obviously and everyone is different.  The bigger, much more fundamental point seems to be to be around whether a legal assessment of capacity is what we really need when tired sergeants are ringing crisis teams about their patients.  Is capacity the first thing to care about if someone’s saying they want to die?!  Haven’t we just spent the week saturated by coverage of a prominent person revealing suicidal ideas and then berating journalists who felt entitled to judge the integrity of those claims, without knowing the person or the situation?!  Didn’t mental health professionals and charities speak out about all that, precisely because it’s the wrong focus at the wrong time?!

So how well does that crisis team staff member know the person AND their current position to which the police have been called, when deciding over a phone line that the person has capacity and should take responsibility for themselves in that situation?!  It beggars belief, quite honestly and makes me realise how we create cultures, even if unintentionally, where journalists can come out with the garbage we heard earlier this week.

But capacity for what, precisely? – capacity is decision-specific and context-specific so whilst I may have capacity for decision X today, whether I’ll have capacity for the same decision tomorrow or next week, is entirely unclear and not guaranteed.  Perhaps I’m sober now and intoxicated next week – that matters.  Perhaps my life is normal for me right now, but tomorrow or next week I suffer a serious life-shock of some description that really knocks me for six.  These are just two ways in which any general sense that I “have capacity” (which doesn’t actually mean anything anyway!) may be affected by events or circumstances to mean next we need to think about whether anything has changed.  But either way – “capacity” is not the determining variable if we must look at this legally, because if I have a mental disorder of a nature or degree that makes it appropriate for me to be admitted to hospital, the MHA can be used in principle, even if I have “capacity”.

HUMANITY FIRST

Presumably the main point, though, is this? – the person in our tired sergeant’s tweet is threatening to stab themselves and jump off a high rise building so perhaps we need to support them, as professionals, as people and partners?  This might be a medical matter to do with illness, psychosis and voices, it might be borne of various social issues or struggles with specific events or circumstances … it might be both of those and more besides, but regardless, the person is obviously in need of some kind of support.  The exhausted sergeant seems to recognise this, hence they’ve become that part of that support in the very immediate sense but has recognised it might better come from elsewhere.  Whether a crisis team nurse is the best person to do that, or simply the best route to the best person may depend, but there are various reasons to think they might want to help, even if this does mean draining on or informal supports or finding coping mechanisms.

Maybe the person just needs an hour or two of someone’s time to talk? – perhaps they need more formal and structured input: counselling, nursing or medical care?!  The point must surely be, that whatever the person needs, it’s probably not best determined by a tired sergeant with limited access to the available options.  Probably better determined by a crisis team nurse who has access to the background of the patient and knows the broadest range of options and who does have a route to an AMHP and an assessment if that is necessary in some cases.  But presumably, to judge that, we’d want a keen sense of the legalities and “capacity” is the the make-or-break issue if it were to come to considering hospital.

The incident also flags something else, though and this may take another post over the weekend: the difference in cultural approaches to mental health, suicide or para-suicidal risk.  Not just in the context of joint working on schemes like ‘street triage’, we see that police officers and mental health nurses can often bring different approaches from their professions to the management of risk – and I’m not saying either is right, wrong or better.  I’ve heard it said by many a mental health professional that police officers can be “risk-averse” towards members of the public implying intentions to self-injure; but I’m also aware of a number of difficulties with the approach that mental health services take, including recent preventing future death report from a coroner which touched on this.

These discussions aren’t going to go away any time soon – so we probably need to talk, which is ironic but that strikes me as the likely starting point for what our vulnerable person needed, too.

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.

Government legislation website – www.legislation.gov.uk