Capacity for What?!

It’s rearing its head again: whether or not somebody has the ‘capacity’ to be a victim or ‘capacity’ to be a suspect. One thing that promotes a blog post is a conversation with someone who is noticing a particular problem and today’s post is an example of that: an inspector who has been reviewing crime reports and crime recording standards, wondering if sometimes the police are too quick to try to latch on to misunderstood ideas of ‘capacity’, as a quick proxy for whether to record or investigate a crime. I think he’s on to something here, as we’ve seen high-profile examples of this. It also flicks that switch of mine that ‘capacity’ is a legal concept to be discussed when referring to the Mental Capacity Act 2005 and someone’s ability to take a particular decision for themselves when they be putting themselves at risk. But it’s not really the thing to do when you’re investigating a crime allegation to ask, “Does he have capacity?”

Let’s just be really clear: it’s a stupid question that tells you nothing because it doesn’t mean anything in the context of crime; and whenever we’re asking about capacity it has to be about capacity for something specific. Does the person have capacity to decline medical treatment for a head injury, for example – there is a legal way to work this out. But if someone with dementia, who doesn’t know what day of the week it is and who doesn’t recognise their daughter’s face when she visits them, says they’ve been assaulted and hurt by care staff, it doesn’t mean they’re wrong and that it didn’t happen just because aspects of their allegation or testimony may be questionable. Maybe the assault upon them was witness by someone else or caught on CCTV?! … perhaps there is other evidence that corroborates enough of the allegation for us to know the kernel of it is true, even if certain details are found to be untrue?


Just because somebody in a care home says they’ve been poisoned, doesn’t mean it isn’t true – I know this because I dealt with such a report and the quick action we took on the night of the first report, including an arrest which allowed us to preserve evidence early on that may otherwise have been lost, meant someone was convicted of attempted murder and various related offences and jailed for life. If you remember the scandal a few years back at Winterbourne View, Bristol – we learned that care staff were assaulting and neglecting patients and thankfully, eventually, they were brought before a court and sentenced for criminal acts.

But what we learned afterwards was, perhaps more important to the point I’m making in this post. When the whole matter had been reviewed, is that residents were calling the police to report being victims and they were less likely to be taken seriously because they were residents in a care home for people with learning disabilities who had all been assessed, by virtue of the fact that they were living there, as lacking the capacity to take certain decisions about their lives. In reality, when those people asked their police service for help, we ended up asking the offenders whether or not that request was something we needed to take seriously, and, oddly enough! – the offenders said, “No – it’s just [insert name of resident], you know what they’re like! Leave it with us officer.”

Just because someone has cognitive problems doesn’t mean that everything they say is in some way wrong or fabricated because of some feature of their condition. It may be the only empirically correct thing they’ve said all day, but if examined it may well be there is evidence to support that allegation and it’s the police’s role to treat all cases on their merits, make reasonable adjustments for disabled people – including victims and witnesses – and to try to go that extra mile to see if there is corroborative evidence that helps.


Several years ago, Victim Support published a report which taught us, if we didn’t already know, that people with mental health problems and / or learning disabilities and other developmental conditions were more likely than most to be a victim of crime. Three times more likely, in all fairness. However, where those victims came to the criminal justice system for help, they were less likely to be believed by the police, when false notions of ‘capacity’ would creep in to assumptions about their ‘reliability’.

This was then compounded further by our other criminal justice partners: CPS would be less likely to take a case forward even where the police did believe it should do so and courts were less likely to convict defendants whose victim was vulnerable because of assumptions about reliability of someone’s testimony. Some may say, for example, that if a person whose grasp on the realities of their own life is such, that they cannot currently comprehend enough about events around them for their evidence to be compelling – and where a criminal prosecution rests on one person’s word against another person’s, there may be problems in proving an offence beyond all reasonable doubt.

However, what the victim support report also made clear is that insufficient use is made of best evidence procedures; and examples were given of where dogged pursuit of truth by some investigators of lawyers meant that corroborative evidence, even just corroborative circumstantial evidence, might make the difference between a case succeeding or not because the victim’s allegation is buttressed by something that shows the allegation is not borne of something resulting from their condition.


Ask yourself, to what extent does a victim’s poor mental health or their learning disability cause you write-off reports prematurely? How many call handlers have had conversations with victims or their families or carers where they’ve heard the allegation of theft and then asked a professional, “Does he have capacity?” How may officers record a crime where an allegation has been made that cannot be quickly disproved and then written it up for filing on the basis that the victim ‘doesn’t have capacity’?

Well, a chance discussion with an inspector for HMICFRS today, caused me to think about this – he wants us all to ask more questions about this: how often do we make presumptions about someone’s competence as a victim or witness based on knowing they have.a particular condition? And what do we know about people with the same condition? … they’re ALL very different. As the National Autistic Society say, “If you’ve met someone with autism then you’ve met just one person with autism.” Some people with autism are doing world-class, ground-breaking work in science and mathematics or running companies; others are unable to live their lives outside fairly restrictive institutions. Saying that someone has autism doesn’t, of itself, tell you a damned thing about their agency as victims.

You could repeat all of that for every other condition: some people live with depression and they get up every day, take an anti-depressant and then go quietly about the business of living a life, raising a family and going to work. Others are trying to get through the day curled up in bed, unable to face the world and others are hospitalised. Saying that someone has depression doesn’t, of itself, tell you a damned thing about their agency as victims or witnesses.


And this is not a question just about those on the receiving end of crime: the same problems emerge for witnesses and a slightly different, but nonetheless related set of problems for vulnerable suspects. How often do you hear the question raised about whether a suspect ‘has capacity’? I’ve covered these issues for suspects a number of times, but the point remains: we can and sometimes do prosecute patients for offences who ‘lack capacity’ – so asking a capacity question at the start of an investigation is a quick route to missing an opportunity to protect the public from crime.

92% of people who offend whilst living with a mental health or learning disability problem, do so not because of their health or development, because despite it. This figure was mentioned in the 2017 NICE Guidelines on the Mental Health of Adults in the Criminal Justice System. Fair enough: we have to work out very carefully who are the 8% are! But even with that small group, there will be a minority of people who have offending so seriously or persistently, no doubt because of their illness, but who are such a risk to the public that prosecution is necessary to ensure a response that does afford them that right to access care,

So, a request from me: please stop talking about ‘capacity’ in criminal justice contexts – what we need to know is

  • What is the allegation made?
  • Does the allegation amount to a criminal offence, if true?
  • Whether there is any evidence to corroborate it – could I get any evidence of that kind?
  • Whether there is any evidence to support it – could I get any evidence of that kind?
  • Then listen to what the victim is asking for.
  • Weigh up the potential for arrest and prosecution, based on the evidence.

And challenge other police officers, too: ‘capacity’ has a specific legal meaning and it’s not usually what we mean when we’re talking about action taken to safeguard someone who is a risk their own health, for example.

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, 2019

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 –


7 thoughts on “Capacity for What?!

  1. Yes yes and yes again. If i had a £1 for everytime ive tried to explain the above id be a very rich man. Now i will simply point towards this blog.

  2. Absolutely brilliant blog and very helpful, from a non police person point of view, because I can also use it in my forthcoming meeting with the PHS Ombudsman. Thank you.

  3. I agree with much of this. I would just add that it remains important to think about the person’s capacity if and when they are questioned – in particular, to think about the MCA principle that you must do everything reasonable to help ensure the person understands before you take a view about whether or not they can make a specific decision at a specific time. For example, does the person taken to the station for questioning understand ‘enough’ about the role of a solicitor to have capacity to refuse to wait for one?

  4. Great article. More generally I am very concerned about health professionals saying someone has capacity as a reason to not use the MHA, let them harm themselves etc.etc

  5. Fabulous guidance and much needed out there on every level. So much is filed due to the ‘lacks capacity’ myth, public interest seems to be the bench mark here… However I’ve had vulnerable offenders who genuinely do not understand the caution – id be interested in where we stand with this position…?

  6. The blog post EVERY MH Trust worker and EVERY local authority practitioner with a safeguarding role should be reading . Police need to investigate to the max as they would in all other cases. In fact, the responsibity to go the extra mile to ensure reasonable adjustments are made imperative to not just seeking justice but to understanding safeguarding.

    What is the point of an Adult MASH for eg when a MH trust can simply ‘advise’ that in their opinion those with a MH diagnosis are unreliable/lack capacity/ lack credibility? How many MH service users and their advocates read this and instantly recognise the pattern of dismissal at first all? Too easy for statutory services to have undue influence knowing that if the investigating officers are reliant on MH services actually supporting rather than undermining. Let alone the CPS needing MH support being available and accessible to prosecute

    There needs to be a very cleat independent advocacy service to support vulnerable victims to report, to co=operate and to feel safe enough to share what is happening. Victims can be terrified of repercussions and at the moment there is very little to no protection available. Protection plans are rarely more than a list of involved professionals having adhoc meetings with absolutely no practical basis. rarely seen a panic alarm given to a vulnerable victim with learning disability or severe MH condition .

    If anyone has any doubt as to how far victims are failed look to the reports Michael refers to, look at successful prosecution rates, scrutinise so called protection plans that safeguarding meetings produce. And if you are the police ask yourself whether this group is being failed because clear up rates require more resources than forces have and that MH trusts are prepared to offer

  7. And here’s the brutal reality of failing to follow up reports made by vulnerable victims. In order for ANY protection from place of refuge to injunction type order to authorisation panic alarms to repairs of front doors or anything that might protect a CAD number is required. If as police you fail to issue then you fail the victim and those who perpetuate threat, hate incidents and assault can continue at whim. Nothing integrated in support of the vulnerable person

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