Caselaw confirms that the legal tests for capacity in the civil jurisdiction, i.e. under the MCA, and in the criminal courts differs (Re MM: Local Authority X v MM [2007] EWHC 2003 (Fam), at para 88).
First, the criminal assessment is carried out retrospectively, after the act, whereas an assessment under the MCA is in respect of potential future decisions/acts (In re M (An Adult) (Capacity: Consent to Sexual Relations) [2014] EWCA Civ 37).
Second, the two jurisdictions have different standards of proof: beyond reasonable doubt is the criminal standard, and on the balance of probabilities is the civil standard. This means that any test for capacity carried out under the MCA would not satisfy an assessment for the criminal court.
In the case of A Local Authority v JB [2021] UKSC 52 Lord Stephens stated at paragraph 107,
…both the criminal law and the civil law serve the same function in this context protecting the vulnerable from abuse and exploitation, that should not conceal the different purposes of the civil and criminal law and the different ways in which they carry out their functions. The primary purpose of the criminal law is the prosecution of behaviour that is classified as criminal and the punishment of offenders by the state. In civil proceedings under the MCA the courts must balance the promotion of the autonomy of vulnerable persons with their protection from harm, all while, so far as required by general principle of law and the court’s obligations as a public authority under the Human Rights Act 1998, having regard to the rights of others.
While it was accepted by the Supreme Court that both the civil and criminal jurisdictions have a responsibility to protect potential victims, the purpose of the two jurisdictions differ in that the civil jurisdiction also exists to protect the autonomy of the person. Therefore one could not use the MCA to simply protect others, the person’s rights must be paramount, it follows therefore that to use a capacity assessment carried out under the MCA as a basis to assess the potential offending of a person is not legally acceptable.
In terms of the criminal justice system, procedures to examine a person’s ‘capacity’ exists as several stages as outlined below.
Before the matter comes to trial the court will decide whether the alleged perpetrator is ‘fit to plead’. A legal test is applied to any alleged perpetrator who appears to have a disability. This legal test includes the alleged perpetrator’s ability to understand the charges, decide whether to plead guilty or not, and to put forward a defence (R v Pritchard [1836] EWHC KB 1; R v John M [2003] EWCA Crim 3452).
If the alleged perpetrator is found not fit to plead, a trial of facts is held before a jury (S. 4 of the Criminal Procedure (Insanity) Act 1964 as amended by S. 2 Criminal Procedure (Insanity and Unfitness to Plead) Act 1991). At this point the alleged perpetrator could either be acquitted or held until such time as they are fit to plead.
If the alleged perpetrator is deemed fit to plead, the case goes to court, to decide upon the alleged perpetrator’s guilt. In order to be convicted of a crime a court must be convinced that the alleged perpetrator has actually done the deed (actus reus) and had the requisite state of mind to intend to commit the crime (mens rea), both of which are particular to each offence. Without both of these aspects being proved an alleged perpetrator cannot be found guilty.
If the alleged perpetrator is found guilty the judge at the sentencing hearing will consider the person’s culpability. The legal test for this includes whether at the time of the offence the perpetrator was suffering from a mental disorder that impaired their ability to:
- Exercise appropriate judgement;
- To make rational choices;
- To understand the nature and consequences of their actions (Sentencing Council Guidance, 1 October 2020).
It is clear that one cannot have the capacity to commit a criminal offence because such an offence is illegal, and one cannot have the capacity to decide to act illegally. In terms of any such capacity assessment, what one would be assessing is not the particular offence but the person’s capacity to act unlawfully. This is particularly true in terms of paedophiliac offences, where a child under 16 cannot consent and therefore the potential perpetrator cannot be assessed in respect of the child’s consent. That said, the person’s capacity to engage in sexual relations does include their understanding of ‘reasonably foreseeable circumstances (S. 3(4) MCA), which includes possible imprisonment for rape if other person does not consent (A Local Authority v JB [2021] UKSC 35).
However, it would be unlawful to assess the capacity of a psychiatric patient in respect of potential future offences and then refuse to discharge the person on that basis. It cannot be right under the law to detain or deprive a person of their liberty on the basis that they may commit a future offence. This would breach their rights Art. 5 European Convention of Human Rights.
Article 5 of the European Convention of Human Rights states:
- Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
- the lawful detention of a person after conviction by a competent court;
- the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
- the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
- the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
- the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
- the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
As can be seen, none of the Art. 5 ECHR criteria includes the ability to detain or deprive of their liberty a person based on what they may do in the future. As both mental health, capacity, and criminal law must be followed in accordance with Art. 5, it is not lawful to deprive a person of their liberty because they may re-offend.
What can be done when professionals are concerned about the risks to others is to assess a person’s capacity to agree to accommodation and care, which includes restrictions used to manage risk. When carrying out such assessments the patient’s understanding of their future risks to others, including their ability to understand the reasonable foreseeable consequences of living without such restrictions will form part of the assessment.