The Nottingham Inquiry reconvened yesterday to hear closing submissions about the evidence it took over the spring and at some point after it concludes, we’re all going to have to address a number if issues – if we haven’t already. Chief amongst them is the deference the police show to mental health “experts” regarding issues which are outside of their domain and any expertise such “experts” can claim.
The “capacity” problem is a good example of this – a number of Nottinghamshire Police officers have admitted they relied upon an assessment of so-called ‘capacity’ made by the doctor in charge of the suspect’s mental health care, without really knowing what that term meant or indeed, that it isn’t really a legal concept at all, in criminal law. It’s a term from health & social care law, but it doesn’t move across. To talk of a criminal suspect’s “capacity” to commit an offence is to use the term as a proxy for a number of complex legal and non-legal issues like “insanity” or “mens rea”, esp the ability to form “specific intent” for offences like attempted murder or whether someone was “reckless”.
Most importantly of all, to the extent that capacity may be a useful proxy, it’s not the dependent variable. In other words, having or not having what we call ‘capacity’ does not push a criminal investigation down one route or the other, dependent upon assessment of that variable –
- People who ‘have capacity’ do not have to be prosecuted and remember, the Mental Health Act 1983 is not capacity-specific legislation so someone who can be ‘sectioned’, may ‘have capacity’ both for medical decisions and in terms of their potential liability for an offence.
- People who ‘lack capacity’ can still be prosecuted for serious offences and this remains true even if they are also ‘sectioned’ or able to be. The more serious an offence AND the greater risk posed, the more likelihood it will still be in the public interest to prosecute someone.
THE “FALLACY OF THE BEARD”
We need to stop looking for an easy dividing line between two extremes of offending. It’s easy enough to point out that if someone who is mentally ill has killed three people and tried to kill three others, they are still going to be charged, regardless – assuming the evidence exists to prove it. Equally, if the police arrest someone shoplifting a few pounds of food from a supermarket and it turns out they are seriously mentally ill, living rough because they’re homeless and have never been in trouble with the police before, it will be more appropriate to divert them from justice to get the help they need.
The ‘fallacy of the beard’ is about the inability to distinguish on a continuum the two extreme states which exist at either end. Easy as it may be to separate murder from shoplifting, you could easily add in one or two additional factors to the shoplifting example where it becomes less obvious what you should do. The ‘beard’ reference is a similar notion – it’s obvious whether a man has a full established beard or is clean-shaven, but it’s harder to identify the precise point where a man who has stopped shaving moves from the beardless to beard extremes – this fallacy can be shown with age as well. How old is an ‘old’ man? – I’d object to their idea (I’m 51), but my son insists it’s true and a colleague is doing an PhD researching the experience of old people in prison It turns out that means anyone over 50yrs of age – how very rude!!
But what if our shoplifter had robbed the food, by using violence on the security guard who stopped them –
- If they had punched him to the face, causing minor injury, does that now change things?
- What if it were also known, the person had a significant history of violence, including GBH convictions where they had spent some time in a medium secure unit on a ‘Part III’ hospital order?
- What if the violence had been the production of a knife that was used to threaten, but not injure?
- What if they had stabbed the security guard?
- Repeat all of the questions from scratch in the knowledge that when previously ‘diverted’ from prosecution under the Mental Health Act, they abscond from hospital more often than not, and don’t engage with assessment or care?
- What if, in order to abscond, they used or threatened violence towards NHS staff?
- Or they actually assaulted NHS staff?
At what point do the aggravating features of the theft become factors which makes us think it is in the public interest to prosecute someone, even if it is for just a few pounds worth of foodstuffs, because the assaultative behaviours and risky background means it’s not just about the food any more? By the time we think through these issues, it’s about protecting the public (which includes the specific likely victims of security guards and NHS staff, but also everyone else).
DOCTOR KNOWS BEST
It is not the job of doctors, even of psychiatrists to tell the police or necessarily even help the police understand the factors which should be considered in the statutory decision of whether to refer the case to the Crown Prosecution Service for a charging decision. It’s not their job to answer questions from the CPS, either, about confidential medical issues which might legitimately assist the solicitor making the charging decision. No police officer or solicitor worth their salt is going to be unhappy about receipt of medical information or opinion about a defendant’s mental health but –
- It’s not an entitlement; and
- It’s not impossible to make statutory decisions without it; and
- It’s not binding on the police or CPS’s legal decision whether provided or not.
There are a number of reasons why investigating police officers need to move beyond the notion that ‘doctor knows best’ when it comes to decisions or even opinions which are not the doctor’s area of competence – doctors are qualified in and they practice medicine, not law. Of course, their practice overlaps with various legal issues but most doctors are not forensic psychiatrists or psychologists whose medical practice is at the direct interface with criminal law and where their opinions are often sought in court about, for example, whether a defendant’s mental state means it is a realistic option they submit a defence of insanity or a partial defence of diminished responsibility.
Remember: courts do not always act upon doctors’ opinions, either. Most famously perhaps, in the prosecution of Peter Sutcliffe – the so-called Yorkshire Ripper – he submitted a partial defence of diminished responsibility which all the medical evidence agreed was available to him. The trial judge, however, ordered a murder trial despite the overwhelmingly consistent opinion of the psychiatrists who examined him.
And why?! – because it was known some of the things Sutcliffe said to the psychiatrists, and which they accepted, were contradicted by actual evidence in the case. So the whole thing was put to a jury who rejected his defence and convicted him of multiple murders and attempted murders.
EXPERTS
“Somebody how knows more and more about less and less until eventually they know everything about nothing.”
Experts often drift out of their lane and indeed are invited to drift out of their lane – I know this because I’ve been an expert witness in Coroners’ courts a number of times as a ‘policing and mental health’ expert and have regularly been invited to drift out of my lane. I’ve been asked about paramedic training, about which I obviously know absolutely nothing – it’s important to say so! I was asked in another case whether there should have been an armed police deployment – I could legitimately answer that now having worked as a firearms commander for a number of years, mentored people new to that role and assessed candidates on the training course. But that wasn’t the case at the time I was asked – and so I said so.
Equivalent kinds of considerations need to be borne in mind by police officers – an expert in one domain is not an expert in all related or cognate domains and doctors are not lawyers.
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 