Saturday, 10 March 2012

Conversations with Monica: Are People with Mental Disorder Responsible for their Actions?

I always welcome comments on my blog, even if they are critical (readers, please take note!), and frequently take the time to answer points seriously. It shows that people do actually read what I write, and are sufficiently stimulated, in whatever way, by what they have read to leave a comment. I like knowing that.

Lately, I’ve been engaging in some interesting dialogue with a blog reader called Monica. Most recently, Monica has been posting some comments in response to my last post (A Young Person’s Guide to the Mental Health Act) which pose some interesting issues.

Readers of this particular post will have noticed that I made a somewhat flippant reference to a hypothetical patient who believed that they were related to the Queen, in order to illustrate an example of someone being deluded and possibly having a mental illness.

Monica made the point: “I realize that if someone said that s/he is, for example, a sibling of the Queen, you would be able to know that this is not the case… But how can you tell true delusion from being indeed "related" to the Queen through some common ancestors or by being, for example, a distant relative of someone who married into the family?” After a fascinating riff on the subject of relatedness to the Royal Family, she concluded: “Still, I can imagine that, under the wrong circumstances, if told that I have such relatives, a psychiatrist would be more likely to send me to the loony bin then to check my ancestry.”

I realised from previous comments that Monica was asking for a serious reply, so I posted the comment: “Just being deluded should not in itself constitute grounds for detention under the MHA. There has to be substantial additional risk to the person or others as a consequence of that belief -- for example, one person I detained thought her central heating boiler was talking to her. That it itself did not justify detention, but she then trashed the boiler, causing a gas leak in the process, which would have endangered her and her neighbours.”

Monica responded at some length to this comment, but somewhat to my surprise concluded by saying: “By the way, what happened to the woman with the boiler? Did she lose her apartment? Was she criminally charged or asked to pay for the damages? Was anything done to prevent her from having access to boilers in the future, at least not in her own apartment building and to a boiler that is not safely locked inside a separate room or solid enclosure?”

I mistakenly assumed that these were largely rhetorical questions, until a few days later Monica reminded me that I had not replied:

“Can you answer my questions about the boiler, though? Did the woman pay for the damages, or get charged with any crimes, or lose her housing? I really hope she did. You see, only because I tend to question psychiatric and police interventions, that does not mean that I don't believe in individual responsibility. On the contrary! I'm pretty much for leaving people alone but then whoever damages a boiler should pay for it and for any other damages to property, and get criminal charges, too, if the damage was intentional. And get kicked out of the building, too.”

This does raise significant issues relating to issues of personal responsibility for the consequences of actions which I felt deserved to be aired in the context of a full post rather than a comment.

The crucial point here is to do with mental capacity. In the words of the Department of Health’s Summary, the Mental Capacity Act 2005 was designed to provide “a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves, for example, people with dementia, learning disabilities, mental health problems, stroke or head injuries who may lack capacity to make certain decisions. “

The Act is underpinned by 5 key principles. The first and most important is: “A person must be assumed to have capacity unless it is established that they lack capacity.” The protective or restrictive elements of the Act therefore would only apply to people who had been formally assessed as lacking capacity. The logical consequence of this is contained in the third principle: “A person is not to be treated as unable to make a decision merely because he makes an unwise decision.”

This means that adults can do whatever they like as long as they have capacity, however unwise others might consider it. This might include, for example, bungee jumping, driving too fast in poor driving conditions, smoking, taking illegal drugs, pot holing, mountain climbing, eating too much, not taking enough exercise, or sending money to someone purporting to be a bank manager in a foreign country who wants to send them millions of dollars.

Of course, this also means that people with capacity have to take responsibility for the consequences of their actions. If you persist in smoking, you may get lung cancer. If you drive too fast in the wet, you may crash and harm yourself or others, and then be arrested and taken to court. If you send money to someone who has emailed you out of the blue, then you may never see that money again.

This brings us to the patient I mentioned earlier who attacked her boiler because she thought it was talking to her.

If you work in the field of mental health you find yourself working with people with a wide range of mental disorders. Some of these people have capacity, some lack capacity, and some have fluctuating capacity.

You cannot make any blanket judgments according to diagnosis, along the lines of “someone with a diagnosis of schizophrenia lacks capacity”, or “someone with an emotionally unstable personality disorder has capacity.”

Making an assessment of an individual’s capacity at any particular time will inform decision making relating to how you respond to their presenting behaviour and whether or not you consider it necessary to invoke the Mental Health Act (or Mental Capacity Act) to limit their freedom to take certain actions and make certain decisions. Someone may indeed have schizophrenia, but they may be well controlled on medication and their symptoms may be so much in remission that they are working and otherwise lead a normal life. Their underlying condition would not justify an assumption that they lack capacity.

Let’s look at the woman who damaged her boiler again. She has a diagnosis of paranoid schizophrenia. She has stopped taking her medication. She has been exhibiting a range of symptoms which constitute her known relapse signature: hearing voices, believing that God is in communication with her, believing that the Royal Family are conspiring to kill her. (It’s remarkable how many people do have delusions about the Royal Family.)

She had damaged her central heating boiler because God was talking to her out of it, and she had to stop it happening. In other words, the actions she took were a direct consequence of her mental illness. She would not have done this if she had not been actively psychotic.

In these particular circumstances, at this particular point in time, her mental illness had rendered her incapable of making rational decisions, and she therefore lacked capacity to manage her day to day life or to make decisions about going into hospital or taking medication. She was therefore in need of protection from the consequences of her actions.

In answer to Monica: this patient did not pay for the damage to the boiler, she did not get charged for criminal damage, and she did not lose her housing. In my view, this is quite right: it would not have been fair for her to be penalised in that way when she was mentally incapacitated.

That is not to say, of course, that people committing serious criminal offences while incapacitated through mental illness or disorder should not have to face any charges. But Part III of the Mental Health Act is designed to deal with these situations, for example, by giving the courts powers to arrange for the assessment of a mentally disordered offender (Sec.35), or to order them to be detained in hospital for treatment (Sec.37).

However, those with mental disorder who are deemed to have capacity would have to take responsibility for their actions. I am currently working with a woman with an emotionally unstable personality disorder. She frequently expresses anger inappropriately, for instance, by being verbally hostile to professionals trying to help her, or by cutting or hitting herself. At times she has carried a knife and self harmed in front of professionals.

These behaviours may be unwise, but her disorder does not deprive her of capacity. She can reason through her actions, and understand the dynamics that drive them, and therefore can choose or not to behave in the way that she does.

I would try to avoid the use of the Mental Health Act with this woman (I have formally assessed her on one occasion, and did not detain her), and although I am working with her to find alternative ways of expressing and releasing her anger, ultimately, only she can decide to modify her behaviour, and in the meantime must take the consequences. These have included a number of professional agencies withdrawing support to her, and occasionally police involvement.

However, there may be a situation in which she is in so much mental distress, that she ceases to be able to make rational decisions, and can be deemed to lack capacity. Then, it is justifiable to make decisions on her behalf that are considered to be in her best interests. On one occasion she took a very serious overdose that nearly killed her: she was admitted to a medical ward for life saving treatment, even though at that time she genuinely wanted to die.

So the brief answer to the question posed at the beginning of this post: are people with mental disorder responsible for their actions?

It all depends…


  1. Fascintating post! As this is a reply to a another discussion from another post, I think I need to give a decent reply in the form of my own blog post. I will try and do this in the next few days, on a police perspective of risks / charges / culpability, etc..

    Great post.


  2. Thanks for this great post! I still have a few questions, though. People are civilly responsible for the actions of their minor children and animals. If the woman's five-year-old child or the woman's dog damaged the boiler, she would have had to pay. I understand that she may not have been criminally responsible because of her mental condition, but why wasn't she held civilly responsible and made to pay for the damages? After all, herself in a mentally abnormal state could not have been less aware of her own actions than a small child or a dog would have been of his own actions, and if the child or dog caused damages, she would have paid. As a matter of fact, if her property somehow caused damage with no human intervention, she would have been responsible, too. Also, regardless of any other considerations, don't property owners/managers and other residents have a right not to have in their building someone who caused serious damage and danger for irrational reasons and could become irrational and dangerous again at some time in the future? If it's not a matter of holding her responsible, then it should be a matter of removing a danger from their building.

  3. Hi Monica! In the case of the small child or dog, the adult would be responsible for the child or dog's actions and would have to take the consequences. The issue of potential danger to others by the action of someone with a mental disorder is a thorny one. in this country, people can be taken to court and made subject to an antisocial behaviour order, so they would have to stop their behaviour or be in further trouble. We do go back to the point about mental capacity -- if someone lacks mental capacity, then they cannot be help accountable for their actions. If an adult with severe learning difficulties presented a danger to others by lashing out indiscriminately, but clearly did not know what they were doing, while it would be appropriate to try to ensure the safety of others, you could not say that the person had committed a criminal act if they had harmed someone, as you have to establish that the person knew and understood what they were doing.

  4. very controversial subject have seen baffling decisions in my opinion made both ways to prosecute and not prosecute patients who have been detained in hospital for acts of criminal damage arson and assault. A situation not helped when its left to hospital managers to decide which incidents get reported to the police in the first place.

  5. So if a person would have to pay for damages caused by his or her own child or dog, why would a currently lucid individual not pay for the actions he or she caused earlier while in a state of mental incapacity? If criminal penalties are inappropriate because the person was not fully able to understand and control his or her actions, civil responsibility such as paying money for damages is perfectly appropriate. Let's put it this way: if you were to break a leg while drunk, you would still have to get it treated and wait until it heals. It won't magically heal because you didn't know what you were doing when you broke it. Damage to property is similar to a broken leg. It actually exists and it has to be repaired or replaced, and that costs money. If one person won't do it, it's just that others will be stuck doing it instead, and that's not fair.

    Why is a mentally ill person simply excused in a way the person with a broken leg is not? Paying money for damages should be as unavoidable as fixing the broken leg. It's criminal, not civil, responsibility that should be waived (or maybe not, but unfortunately, the law allows it).

  6. Very interesting post this one and I can understand the questioning but I think the 'lack of capacity' needs to be understood before those suffering mental illness are blanketed as ineligible
    for prosecution because of their illness. Personally I feel comments like that support the stigma of mental illness.

    There isn't a statement saying that "mentally ill" individuals are free from this. The statement is about mentally incapacity which is seen in it's own right. I think the comparison of a drunk person breaking their leg and a mentally ill and incapacitated person damaging a boiler is poor. Choosing to be incapacitated and being affected by mental disorder are completely different. It would be similar to stating that a person with a severe learning disability should be charged with common assault/ABH every time
    they scratch or hit a support worker (this is based on my experience within LD where this was common with the most severe cases).

    Good conversation thread.

  7. I wondered if you could clarify a bit about whether you would apply MHA or MCA? I find it interesting that in other countries (the USA, Canada, and in the case of CTOs, Soctland), their commital laws contain a capacity clause, i.e. the person cannot make decisions about their own treatment due to lack of capacity. Whilst in England and Wales , the MHA does not contain such a clause - and in fact in the case of CTOs was explicitly ruled out of the legislation. I know it's at a slight tangent to the main topic of your blog, but are you saying that in practice you would take capacity into consideration when applying the MHA?

  8. I think an AMHP must implicitly or explicitly be considering issues of capacity when assessing someone under the MHA. Since the MCA AMHP's have to consider the MHA/MCA interface, since case law says that the MHA trumps the MCA in certain situations, but also because you are asking yourself the questions -- does this person have the capacity to understand the legal process that is happening? does this person have the capacity to make a decision about going into hospital or accepting treatment, or about remaining in hospital as an informal patient? If someone is so acutely mentally ill that they are severely thought disordered, then even if they say they will go into hospital, or remain in hospital informally, they do not understand the implications of this, and may in any case change their mind unpredictably.