Judge: Court of Appeal
Citation:  EWCA Crim 2521
Summary: With thanks to Jonny Landau of Ridouts for bringing this decision to our attention, the Court of Appeal has very recently handed down a further significant case upon the vexed question of the interpretation of s.44 MCA 2005.
The appellant was a trained mental health nurse who, with her husband, ran a care home for many years until it closed in the early 1990s. Ms Gill, an elderly lady with significant learning disabilities, was resident in the care home from 1987 until it closed. She then went on to live at a property owned by the Nursings where she was provided with care by the appellant. The Court of Appeal found that Mrs Gill’s learning disabilities meant that she functioned at or around the level of a 7 year old child, although (at paragraph 4), the Court of Appeal noted that:
“It is perhaps important at the outset to underline that Miss Gill was never in a vegetative state, and she was certainly able to make simple choices, for example, about what she wished to wear. At the same time she did not understand the need to keep her clothes clean, and although she could, for example, bath herself, she needed encouragement to wash regularly. Without assistance she would inevitably neglect herself. In effect someone was needed to prompt her to do the things that she could manage for herself and to carry out the tasks which she could not. She had a number of problems with communication, but she was well able to convey her wishes and preferences. Special measures were needed for her evidence to be given at trial through an intermediary, but it emerged that for some periods during her evidence, at any rate, she was able to speak for herself.”
After a police investigation into the quality of the care given by the appellant to Ms Gill, she was charged under s.44 MCA 2005, the relevant course of conduct said to constitute neglect taking several different forms (see paragraph 5):
Thus, the lack of adequate care included inattention to Miss Gill’s personal hygiene and failing to maintain her rooms in a clean condition and replace dirty bed linen. It also extended to failing to administer medication correctly and at the right time, or to the provision of food and a balanced diet and making sure that Miss Gill’s personal habits did not create problems with food hygiene. In relation to many of these issues the appellant maintained that she would try and help Miss Gill who would sometimes refuse to accept her help, and in circumstances like these, she felt it was wrong to override her wishes. By way of practical example, Miss Gill expressed a strong dislike for having her toe nails cut until the point they became painful
At the close of the prosecution, a submission was made that there was no case to answer, based upon the contention that the provisions in the MCA 2005 were complex, and in the context of the criminal offence created in s.44 of the Act, irremediably uncertain in their ambit. The submission was rejected, and she appealed to the Court of Appeal.
Having set out the provisions of ss.1-3 MCA 2005, the Lord Chief Justice (giving the judgment of the Court of Appeal) noted at paragraph 13 that:
“the context of the criminal offence created by s.44 of the Act, this is difficult legislation. Lack of capacity in s.44 is defined by reference to s.2, and this definition is supplemented in s.3 which provides a complicated series of tests which identify the circumstances in which an individual is to be found to be unable to make decisions for himself.”
The Lord Chief Justice expressly endorsed the the analysis by HHJ Marshall QC in Re S  1 WLR 1082 (at paragraph 51 ff) of the purpose of the MCA 2005 and of the “singular feature” of the MCA, namely the:
“… official recognition that capacity is not a blunt “all or nothing” condition, but is more complex, and is to be treated as being issue-specific. A person may not have sufficient capacity to be able to make complex, refined or major decisions but may still have the capacity to make simpler or less momentous ones, or to hold genuine views as to what he wants to be the outcome of more complex decisions or situations” (Re S at paragraph 53)
This feature, the Lord Chief Justice held, provided an “apposite summary” (paragraph 14) of the situation in which Ms Gill found herself and the ambit of the statutory regime in which those responsible for her care were required to act, continuing that “no one doubts that the purpose of s.44 of the Act is to provide those in need of care with protection against ill-treatment or wilful neglect by those responsible for caring for them.” The problem lay in the complexity of the way in which lack of capacity fell to be analysed for purposes of s.44.
The essence of the submissions made on behalf of the appellant was that “in an Act which covered both criminal and civil proceedings relating to those who lacked capacity, yet without making any apparent distinction between them in that context, the absence of capacity in respect of one area of decision could not be used to found an assessment of general lack of capacity at the same time, or indeed for the future” (paragraph 15) and (at paragraph 16) “[r]hetorically, Miss Jones asked, by whom and how is capacity to be established for it to be proper for criminal liability to flow from a failure by the defendant to act to an extent which amounts to neglect? And how is the defendant who comes to a different conclusion about a person’s capacity to protect herself from potential liability on the one hand for an invasion of autonomy and on the other against a potential prosecution for neglect? This is all much too uncertain. Indeed she relies on the observation in R v Hopkins and Priest  EWCA Crim. 1513:
‘Unconstrained by authority this court would be minded to accept the submission made on behalf of the appellants. Section 44(1)(a), read together with s.2(1) of the Mental Capacity Act 2005 is so vague that it failed the test of sufficient certainty at common law and under Article 7.1’”
At paragraph 17, the Lord Chief Justice acknowledged the force of the submissions made on behalf of the appellant, underlining as they did “some of the difficulties facing those with caring responsibilities,” although he continued “[a]lthough the principles governing offences of ill-treatment and wilful neglect are identical, cases involving alleged ill-treatment do not appear to raise quite the same difficulties as cases of alleged wilful neglect, perhaps not least because evidence of ill-treatment is generally less elusive than evidence purporting to establish wilful neglect.”
However, the Court of Appeal nonetheless went on to hold that s.44 was not improperly vague, concluding at paragraph 18 that:
“The purpose of s.44 of the Act is clear. Those who are in need of care are entitled to protection against ill-treatment or wilful neglect. The question whether they have been so neglected must be examined in the context of the statutory provisions which provide that, to the greatest extent possible, their autonomy should be respected. The evidential difficulties which may arise when this offence is charged do not make it legally uncertain within the principles in Mirsa  1 Cr. App. R 328 and R v Rimmington: R v Goldstein  1 AC 459. On analysis, the offence created by s.44 is not vague. It makes it an offence for an individual responsible for the care of someone who lacks the capacity to care for himself to ill-treat or wilfully to neglect that person. Those in care who still enjoy some level of capacity for making their own decisions are entitled to be protected from wilful neglect which impacts on the areas of their lives over which they lack capacity. However s.44 did not create an absolute offence. Therefore, actions or omissions, or a combination of both, which reflect or are believed to reflect the protected autonomy of the individual needing care do not constitute wilful neglect. Within these clear principles, the issue in an individual prosecution is fact specific.”
The Court did, however, go on to find that the appeal had to succeed because of a material misdirection by the trial judge, to the effect that, if the appellant had been motivated by the autonomy principle, then any neglect which was proved “would not… necessarily have been proved to be wilful.” At paragraph 20, the Lord Chief Justice noted that it seemed to the Court that “if the jury were to conclude that the defendant may have been motivated by the wish or sense of obligation to respect Miss Gill’s autonomy any area of apparent neglect so motivated would not be wilful for the purposes of this offence” (emphasis added) and that this misdirection undermined the safety of the conviction.
Comment: Section 44 is, on any view, not a well-drafted provision; if it were, it would not already have been the subject of three ‘technical’ appeals to the Court of Appeal, including two determined by a constitution of the Court of Appeal presided over by the Lord Chief Justice. This decision, however, especially given the constitution of the Court of Appeal which delivered it, would seem to stand as an indication that further appeals based upon its poor drafting are unlikely to succeed.
The purposive interpretation of s.44 MCA 2005 given at paragraph 18 of the judgment is undoubtedly helpful albeit – as Jonny Landau notes (and we agree) – the phrase “capacity to care for himself” used therein is problematic. Many people lack the capacity to care for themselves in the sense that they are unable to do so, but the Court of Appeal presumably – in fact – intended to confine this otherwise very broad category to those who lack the capacity to take decisions regarding their care arrangements, a very much narrower class of individuals. This would be consistent with the ratio of R v Dunn  EWCA Crim 2395 (by a constitution of the Court of Appeal also including the Lord Chief Judge), which the Divisional Court in Hopkins and Priest held to have been to the effect “the matter in respect of which capacity was required to be lacking for the purposes of Section 44 was the person’s ability to make decisions concerning his or her own care” (paragraph 43 of Hopkins, citing paragraph 22 of Dunn).