Judge: Judge LCJ, Calvert-Smith and Griffith Williams JJ
Citation:  EWCA Crim 2935
Summary: This case, which we should perhaps have noted previously, was decided by the Court of Appeal (Criminal Division) last year, and sheds some useful light on the provisions of s.44 MCA 2005, provides that:
“(1) Subsection (2) applies if a person (‘D’) –
(a) has the care of a person (‘P’) who lacks, or whom D reasonably believes to lack capacity,
(b) is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or
(c) is a deputy appointed by the court for P.
(2) D is guilty of an offence if he ill-treats or wilfully neglects P.”
Ms Dunn was charged with three counts of ill-treatment of persons falling within the scope of s.44(1) whilst the manageress of a residential care home. She was convicted, and appealed on the basis that the directions given by the Recorder to the jury about the constituent elements of the offence created by section 44 and in particular the concept of the absence of capacity for the purposes of this offence.
The ‘preliminary question’ the subject of appeal was formulated by the Recorder (with the assistance of Counsel) as follows:
“What is ‘a person without capacity’? A person ‘lacks capacity’ within the meaning of the Act of Parliament if he is unable to make decisions for himself because of some impairment or disturbance of the function of the mind or brain. The key phrase is, ‘unable to make decisions for himself’. A diagnosis of dementia on its own is not enough. The impairment or disturbance may be permanent or temporary.”
The Recorder continued in his summing up that:
“You always assume to start with that a person has capacity and then you look at the evidence as a whole including the medical evidence and you ask yourselves this question: ‘Did he probably lack capacity?’ To put it another way, ‘Is it more probable than not that he lacked capacity?'”
The central criticism of the Recorder’s summing up was that it did not make express reference to the issue and time-specific nature of questions of capacity, as required by the provisions of ss.2 and 3 MCA 2005.
The Court of Appeal (in a single judgment delivered by the Lord Chief Justice) noted (at paragraph 19), that:
“… At first blush, and indeed on more mature reflection, [ss.2 and 3] do not appear to be entirely appropriate to defining the constituent elements of the criminal offence of ill-treatment of a person without capacity. By the time sections 2 and 3 are analysed and related to an individual case, they become convoluted and complex when, certainly in relation to a criminal offence, they should be simple.”
They continued, though, that they would:
“… pause to remember the purpose of section 44 and the creation of the offence; and bear in mind that everyone, who for whatever reason but in particular the natural consequences of age, has ceased to be able to live an independent life and is a vulnerable individual living in a residential home, is entitled to be protected from ill-treatment if he or she lacks “capacity” as defined in the Act.”
At paragraph 22, therefore, they took the view that, notwithstanding the fact that there was something of a “disconnection” between the simple criminal offence created by s.44 and the elaborate provisions contained in ss.2-3:
“nevertheless the stark reality is that it was open to the jury to conclude that the decisions about the care of each of these residents at the time when they were subjected to ill-treatment were being made for them by others, including the appellant, just because they lacked the capacity to make these decisions for themselves. For the purposes of section 2, this was “the matter” envisaged in the legislation. On this basis the Recorder’s direction properly expressed the issues which the jury was required to address and resolve by putting the direction clearly within the ambit of the language used in section 2.
23. In the context of long-term residential care, and on the facts of this particular case, it was unnecessary for the Recorder further to amplify his directions and complicate the position for the jury by referring in this part of his summing-up to any of the provisions of section 3, or for them to be incorporated into his directions…”
The Court of Appeal therefore dismissed the appeal.
Comment: Section 44 MCA 2005 provides an important tool by which the wider protections afforded by the Act could be enforced. The Court of Appeal’s criticisms of its drafting are on view well-founded, and, indeed, it is slightly ironic that s.44 requires consideration of a question which the balance of the Act and of the Code makes clear is analytically meaningless, i.e. “does/did X lack capacity?”
However, as the Court of Appeal noted, the underlying principle of s.44 is clear, and the approach adopted at paragraph 22 of their judgment represents an appropriate reading in of words into its provisions. Had it acceded to the thrust of the appeal, it would have made it even more difficult than it is at present to bring a successful prosecution.