The myths and mistakes of capacity and criminality

By Ian Brownhill – 18th September 2020

The Court of Protection hears three broad categories of case where the criminal justice system and issues around mental capacity collide.

P as a victim

The first is the most familiar: P is in some respect vulnerable due to their impairment of, or the disturbance in the functioning of, their mind or brain. That vulnerability is exploited – the most common cases perhaps being where P is financially manipulated. Some of these cases of exploitation cross the threshold of criminality (whether the police choose to investigate or not). Significant too is the body of case law, frequently heard before High Court (Tier 3) Judges, where P has been sexually exploited. The parties aim to craft care plans which balance P’s autonomy against protecting them from those who would exploit them.

This category of case, where P is to be protected by the measures implemented by the Court is the most familiar. P as a victim of crime is, sadly, not unusual.

P as a perpetrator

Unfamiliar to many are those cases where P is the offender, or a potential offender. Such cases have developed their own mythology and common misunderstandings. This mythos can lead to bizarre extremes. Some Ps have huge levels of restriction (see for example J Council v GU & Ors (Rev 1) [2012] EWCOP 3531) to which other offenders, or potential offenders in the community would (or could) not be subject.

Myth one: Mischief thou art afoot

Where it is identified that P has offended previously, or is at risk of offending, there is a misunderstanding, on the part of some, that the Mental Capacity Act (MCA) may be used to eliminate all risk of future offending. Put simply, such an approach is wrong.

The MCA cannot be used to impose restrictions on someone to stop them from offending, it is simply not on the face of the statute. The MCA’s cousin, the Mental Health Act 1983 contains detailed provision in this regard.

The ability to impose any restriction upon P is linked, intrinsically, to P’s best interests. To read section 4 of the MCA so as to allow the imposition of restrictions to prevent P from offending is a leap. But it is one which has been taken. The oft quoted passage is taken from the decision of Moor J in ZZ WL 7870301:

 I make it clear to Mr ZZ that I have no doubt that the restrictions upon him are in his best interests. They are designed to keep him out of mischief, to keep him safe and healthy, to keep others safe, to prevent the sort of situation where the relative of a child wanted to do him serious harm, which I have no doubt was very frightening for him, and they are there to prevent him from getting into serious trouble with the police.

ZZ WL 7870301 – para 49

The problem with this paragraph is that implies that the Court is empowered to protect others and keep P out of ‘mischief’ by imposing a restriction under the MCA. That is not reflected in the statute. The most that can be said, is that restrictions can be imposed if it is determined that they are in P’s best interests; that best interests analysis could include an aim to keep P out of the criminal justice system.

The difficulty is that often people read ZZ as establishing a lawful authority to impose a huge raft of restrictions without properly considering section 4 or the need to pay heed to the principle of least restriction.

I would suggest that where restrictions to avoid offending are being imposed that a Court ought not do so until it has established:

  • The nature of the risk, to include (i) the severity of the risk; (ii) the likelihood of the risk eventuating; (iii) the imminence of the risk;
  • What is the least restrictive means of mitigating that risk?

In my view, the pursuit of a ‘no risk’ approach to P’s care is simply untenable, it goes against the grain of the authorities and the statutory regime.

Myth two: No capacity, no crime

At the other extreme, it is not unusual to hear it be explained that the police will not take any steps to investigate or arrest P where it is shown that they lack capacity to make certain decisions for themselves. This often leads to strange formulation of care plans where the only restriction imposed on P will be verbal redirection, even if they are about to commit a serious criminal offence.

It is worth remembering that the concepts of capacity and criminal responsibility are distinct. In short, just because P does not have capacity to make a particular decision it does not necessarily follow that they are unable to form the necessary mens rea to offend. Likewise, the concepts of fitness to plead in the criminal courts and capacity to conduct proceedings are (for now at least) distinct.

Myth three: The right hand and the left hand

One of the more complex scenarios is where the criminal courts have imposed restrictions on P, be it through bail conditions, a community sentence, an ancillary order or licence conditions. Those restrictions can provide a conceptual and jurisdictional headache for any extant Court of Protection proceedings.

The simplest example is in respect of P’s residence: if the criminal court imposes, for example, a bail condition on P that she resides at a certain address, then this is where she must reside. The Court of Protection cannot determine between the available options and determine that she must live elsewhere. Instead, in some cases, the CoP has determined where may be in P’s best interests to reside and then an application is made to vary the bail condition in the criminal court. This requires a degree of co-ordination between different legal teams and the two jurisdictions.

More complex are cases in respect of P’s internet access: if the criminal court imposes, for example, a sexual harm prevention order on P, this order may include restrictions to their internet access. In these cases, sometimes P is assessed as lacking capacity to make decisions as to their internet access and has restrictions imposed as part of a CoP-authorised care plan. Unpicking where the restriction originates from and why it is imposed is not always a straightforward task.

P as a Prisoner

It is of concern that the Court of Protection is rarely asked to adjudicate on matters relating to prisoners who may have lost capacity to make certain decisions (though the OJCOP blog does actually include two such cases, here and here) This scarcity of cases is based on two fundamental mistakes:

Mistake one: Everyone in prison has capacity

Despite the aging prison population and the prevalence of mental health issues in prison, some mistakenly still think that everyone in prison has capacity. The rationale being that they would be detained in a secure hospital under the Mental Health Act if they did not. Such a rationale is flawed.

The prison population with (potential) capacity issues is significant. May J began to explore the issue in EG [2020] EWHC 1457 (Admin) at paragraphs 70 – 74. Likewise, just as in wider society, there is a risk that any prisoner may lose capacity during their sentence.

Mistake two: There are no choices in prison

A common mistake is that once a person has passed through the prison gate their choices evaporate. Whilst it is true that a prisoner cannot make certain decision for themselves, prisoners still have choices.

EG demonstrated that capacity to conduct a parole process is something which needs to be actively considered. But, beyond that, there are other obvious issues especially in respect of medical care and treatment. A prisoner has to consent to medical treatment just like everyone else.

P as a person

If we recognise that P may be a victim of offending, we must also recognise that some Ps are at risk of offending. Likewise, those who have offended in the past may lose capacity in the future. When we accept these basic propositions as fact, we may start to break down the myths and stop the mistakes when issues of criminality and capacity collide.

Ian Brownhill is a barrister at 39 Essex Chambers.   He was junior counsel for the Official Solicitor in JB A Local Authority v JB (Rev 2) [2020] EWCA Civ 735 and R (EG) v Parole Board [2020] EWHC 1457 (Admin). He appeared for the claimant in R (on the application of Goldsworthy) v Secretary of State for Justice [2017] EWHC 2822 (Admin) and for P in SF (Injunctive Relief) [2020] EWCOP 19. He is a trustee of the Sentencing Academy and is recommended in Chambers and Partners for his Court of Protection work relating to prisoners who have lost capacity.  He tweets @CounselTweets

Photo by Bill Oxford on Unsplash

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