4 ways 'mental health' is misused in criminal and family law

Dr Jess discusses the misuse of psychiatric diagnosis in law and whether police and lawyers know enough about mental health

In the last five years, I have spent significant amounts of time with police and CPS. If you are reading my blog outside of the UK, the CPS is our Crown Prosecution Service. They prosecute crimes on behalf of the ‘crown’. Police investigate crimes, but CPS give the decisions on charging, bail, trials and so on.

In my time working with police forces and CPS, I have noticed patterns in the way psychiatry, mental health and diagnosis is being commonly misused in law. Outside of this, I support many women and professionals in family law, and I am seeing very similar patterns.

I would like this article to spark conversation. Much needed criticism and conversation. I would like to pose the question:

Is psychiatry being misused in law?

Below, I outline four misuses I have noticed in the last few years, that I believe we should be exploring.

There needs to be open-minded and grown-up conversations about these issues - urgently.

Psychiatric diagnosis is considered ‘evidence’ rather than opinion

Since there are no diagnostic tests for a single mental disorder, and there are no ways of knowing if someone ‘has’ one, I think we need to stop using diagnoses as evidence, and make it clear that where they are used or recorded, they are nothing more than subjective expert opinion.

I train police officers and barristers, and I am shocked by how many of them think that psychiatric diagnosis is robust, or on par with something like anaemia or diabetes. They often feel they cannot question the psychiatrist or the psychologist reports, as they thought they were factual reports based on scientific diagnostic tests.

I recently spoke with a Chief Crown Prosecutor who was genuinely shocked to learn that psychiatric diagnosis was nothing more than a self-report questionnaire, an interview and possibly some observations. They always thought that when a psychiatrist gave evidence in court, they were basing their ‘diagnosis’ on biological tests.

“Let me ask you, have you ever seen a brain scan of a victim or a suspect being ‘diagnosed’ with a mental disorder? Or a blood test? Genetic tests?”

They shook their head.

“That’s because they don’t exist, and they have never presented any to you…”

Our police officers and prosecutors do not know that psychiatric diagnosis can be challenged, and that the diagnoses are just opinions. One professional asked me last week:

“So, our victim could be sent to four different professionals, and get four different diagnoses?”

“Yep,” I said.

“How is that fair? How are we supposed to protect victims of crime from that? We refer them for help, not to get labelled!”

Precisely.

From a legal perspective, there is much here to consider. Suspects can be defended using dodgy psychiatric diagnosis, and no one can prove or disprove it. Victims can have their cases destroyed by the same dodgy psychiatric diagnosis, and again, there is no way to prove or disprove.

There is no way to categorically diagnose psychiatric disorders, because they are social constructs. They are based purely on perception. Where one professional may see a severely mentally ill, disordered, manic, psychotic, delusional person - another may see a frightened, traumatised victim in need of validation and help.

Where one professional may feel the man who murdered is wife was not ‘of sane mind’ because he had ‘mental health issues’ at the time of the murder, another professional may point out that he had been abusive for 15 years, and was abusive to all his ex partners, and his ‘mental health’ is being used as an excuse.

Having worked alongside barristers, both in criminal and family law, my conclusion is that they do not know enough about psychiatry, trauma, or mental health to push back against defence teams or the other side in family court, where mental health is being used either to attack their client/victim or to defend their client/suspect.

They don’t understand that diagnosis is a subjective construct that can be robustly challenged - and judges don’t understand this either.

Sometimes, it’s as simple as questioning the method of the diagnosis. Was it quick? Was it done via zoom? Was it a set of self-report questions? Was it one professional giving their opinion? Was it deliberately sought by the defence team AFTER a crime took place? Is it being used to discriminate? Is it being relied upon to claim something about a person that the academic literature would not be able to uphold? Is it based on stigma or stereotyping? Is it false?

It’s fairly easy to challenge, if you know enough about the psychometric measures used, and the lack of evidence in psychiatry.

Psychiatric diagnosis is used to claim victims and witnesses are lying

One of the main concerns I have is the way psychiatric diagnosis has become synonymous with ‘lying’ and ‘exaggerating’. This is fascinating to me, especially as the vast majority of psychiatric diagnoses don’t even mention lying or exaggerating as a ‘symptom’ or ‘criteria’.

I can think of many cases where women (especially women and teen girls, come to think of it), are framed as liars, or as exaggerating, or manipulative, or vengeful when reporting child abuse, domestic abuse, rape or sexual assault - purely based on their ‘mental health history’.

The thinking here is a mixture of stigma and stereotypes, in my view. The first is the stigma created by psychiatric disorders which means as soon as a professional sees that the woman or girl has diagnoses of psychiatric disorders, there is an instant level of mistrust, or even contempt. The second is the stereotype that people with ‘mental health issues’ are ‘delusional’ and ‘manic’ and they have ‘episodes’ where they ‘can’t distinguish reality from fantasy’.

Whilst this narrative works brilliantly for defending a suspect, who the team can then frame as not knowing or understanding or even remembering what he did to her, for the victims, this stereotype only serves to cast doubt on her recollection of events, her motivation for reporting and her overall character.

I work with many police forces around this issue, and they all dread the moment the mental health records are requested by CPS, because they know what will happen if the notes record diagnoses. In some cases, it causes the entire investigation to collapse - especially if the notes talk about the professional’s opinion that the woman is delusional, manic, psychotic or ‘losing touch with reality’.

The assumption is often then made that they cannot possibly be telling the truth about the offences they say occurred, because of their mental health history (which is a subjective opinion by a professional, often years prior). In short, the case becomes about whether she is lying or not. Often with a large helping of ‘is she making this up for attention?’

An example I have of this comes from North East England last year. A case of rape in which a doctor injected his wife with a drug and then raped her. The case was fairly solid. I met with the detectives. Everyone was pretty positive they could secure a charge. Victim was ‘credible’ (as much as I hate this), and had lots of evidence of abuse and assault etc.

However, when the victim became very distressed, police procedure was to refer to mental health teams for ‘support’. What happened instead, was that a psychiatric nurse wrote on her files that she was ‘delusional’ and had ‘psychotic beliefs that she was injected by her husband’. The detectives did not know this until they requested medical records and found it on there - which caused the entire case to drop.

The detective said to me, “So, how did they test that she was psychotic? How do they know for sure that she was delusional?”

And I said, “They didn’t test her, they don’t know anything for sure, it’s their opinion.”

The detective was horrified, and had assumed there had been some sort of medical test like a brain scan - imagining some scientific process had occurred.

But in reality, it was 45 minutes with a psychiatric nurse who didn’t believe the victim, and wrote that she was delusional. That woman will now never get justice, and that doctor is free to continue his life, and his abuse.

In contrast; there is case law and related guidance currently used in the UK which claims that people with autism can’t lie. At all. That if someone has an autism diagnosis, they lack the imagination to be able to lie.

I couldn’t believe my eyes when I read this last month.

Where the hell has that come from?

People with autism can and do lie. I don’t know why this would even be permissible in law to claim this when we cannot back this up with academic or medical evidence. This is pure assumption.

Psychiatric diagnosis is used to discriminate against victims - despite this being illegal according to The Equality Act 2010

Outside of lying, psychiatric diagnoses have long been used in court and investigation to claim that the victim or witness will not give strong enough evidence on account of their psychiatric diagnosis making them unreliable or non-credible.

I want to address this because I think this could be classed as discrimination under The Equality Act 2010.

Now, you’ll have to bear with me here because as you know, I am anti-pathology and I don’t believe in the traditional constructs of psychiatry or mental health - but for arguments sake, let’s just look at the Act and what it sets out.

According to EA2010, a mental health issue that affects a person every day for a long period is ‘classed as a disability’ - and disability is a protected characteristic under the EA.

So. Just as police or CPS would not be able to say ‘you’re not a credible witness because you are in a wheelchair’ - they shouldn’t be able to say ‘you’re not a credible witness because you have bipolar disorder’.

Do you see what I’m saying here?

If the law is going to use psychiatry against victims and witnesses, why don’t we use the law against psychiatry - and the law itself?

According to EA2010, and national charity MIND, the act protects you when you ‘deal with organisations carrying out public functions such as tax collection and crime investigation’.

Crime investigation, you say? Interesting.

So under the act, choosing not to prosecute a case based on victim or witness mental health records would be ‘direct discrimination’ - because this leads to a lack of justice for anyone with a diagnosis, and it means they are treated unfairly in law.

Interestingly, and considering the mental health records would be obtained by police from the NHS, the EA2010 also applies to the way you are treated, written about and cared for by NHS professionals (and private medics, too). So if the records are discriminatory, inaccurate, false or offensive, this could also be raised.

The UN and WHO recently published a new report (which I have written about back in October on this blog). It has a whole section on the way the criminal and family justice system discriminated against people with ‘mental health issues’ - and so it’s not as if this isn’t being noticed or talked about.

The upshot of all this, and the question I ask my students and delegates is this:

Does having a psychiatric disorder (whether we believe in them or not), mean you should have less access to justice, a fair process, or protection from crime and violence?

Most people say no. So, why are we allowing this practice to continue?

This whole issue of discrimination is even more frustrating when we consider the final point, coming up next.

Psychiatric diagnosis is used conveniently AND strategically to defend murderers, rapists and abusers

Whilst psychiatric diagnosis is often used AGAINST victims and witnesses - it is more often used FOR the suspects - to frame them as vulnerable, to garner sympathy, to suggest they didn’t know or understand their crimes, to argue that they were delusional or psychotic, or to suggest that they need support and help rather than prison or punishment.

Just a few examples I have come across in my own career that thoroughly pissed me off:

The murderer Peter Morgan - having murdered Georgina Symonds by strangulation - and having bought all accessories and items he needed for premeditated murder for financial and sexual purposes - was a millionaire. He was able to hire THE Simon Baron-Cohen. One of the most famous psychologists in the world, who specialises in autism and attachment. Baron-Cohen was paid as an expert and argued retrospectively (he only met Peter AFTER the murder) that Peter Morgan must have been autistic.

The defence were attempting to use autism to deny murder, using diminished responsibility on account of him having ‘mild autism’ - despite the murder being clearly premeditated and him going to collect and buy all the items he needed to kill Georgina and hide her body.

I worked on the Netflix Doc about this as the victim psychologist for the series and was appalled to learn that autism was used to attempt to defend Morgan. Especially, as it was a retrospective diagnosis, by someone who was able to pay for Professor Simon Baron-Cohen to do so.

The second case I recall is that of a sex offender from my hometown who claimed he committed extremely serious sexual offences on his own infant children - and then cited ‘depression and anxiety’ as the cause of his offending. Depression and anxiety!

He claimed he was struggling with his mental health, and that caused him to download thousands of cat A images of babies and animals, and then film himself raping his own children.

Why this was even allowed to be used is beyond me. There is no evidence whatsoever which suggests depression and anxiety are linked to sexually abusing children - and no psychiatrists would agree that this offending was linked to depression or anxiety (hopefully).

Mental health can therefore be used strategically (in the case of Peter Morgan) - or conveniently (in the case from my hometown).

So, a woman or girl can report child abuse or rape - but if she has any mental health issues, she is framed as problematic, unreliable and a liar - but a suspect can use the very same mental health issues, even get them diagnosed AFTER the crime, and not only will their testimony be taken seriously, but they may even be supported and protected from the full extent of the punishment because now everyone has to treat them as vulnerable?

Make that make sense.

And if we go back to my point about The Equality Act 2010, it has certain restrictions about being able to discriminate.

The regulations state that if the person has a diagnosed psychiatric disorder AND have a tendency to do any of the following things, these are not classed a disability and therefore cannot be protected:

• start fires,

• physically or sexually abuse other people,

• expose private parts of your body in public, known as exhibitionism,

• watch people who are carrying out intimate acts, known as voyeurism, and

• stealing.

Which if anything, raises even more questions about why the CPS don’t use this more often when defence teams try to use mental health to defend their clients.

Final thoughts

The more I have worked directly with police and CPS over the years, the more holes I am seeing in the use of psychiatry in law.

Police officers tell me they are sick of being told that repeat offenders of domestic abuse and assault need support and care for their ‘mental health’ - whilst their victims have their cases closed based on their ‘mental health’.

RASSO officers who specialise in rape and serious sexual offences are working for months or years to build strong cases for prosecution only to be told to refer their victim for mental health or psychological assessment, for ONE random professional to give their subjective opinion that their victim is lying or unreliable, and for the entire case to collapse.

CPS are missing vital information and training about psychiatry, and the lack of evidence base for diagnosis. Better knowledge could be used to push back against defence teams and make it much harder for them. Better knowledge could also lead to CPS not being so fearful of taking a case forward where the victim has psychiatric diagnoses.

I teach and write a lot about pathologisation and the use of psychiatry against victims and witnesses. Every police force in the UK - and the CPS itself - have been told that they must move to trauma-informed working and so this requires the review of the way traumatised victims and witnesses will have their ‘mental health’ used against them so routinely.

Police and CPS work in crime - but in doing so, they also work in trauma. All of their victims and witnesses - and even their suspects - will have been traumatised or distressed by the case they are working on - and so mental health becomes a core part of what police and CPS deal with on a daily basis.

At the bear minimum, these organisations need to understand the issues around psychiatric diagnosis, discrimination, pathologisation and the misuse of the law.

Thank you for reading,

Jess

If you would like to contact me about this article, please email jessica@victimfocus.org.uk

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