Judge: Irwin and Thirlwall DBE JJ
Citation:  EWCA Crim 2682
Summary: Dawn Heaney was a senior carer in a Leicestershire care home who was convicted of ill treating two residents, contrary to section 44 of the Mental Capacity Act 2005. The first was a man in his 80s with Alzheimer’s dementia who was disorientated in time, place and person and prone to becoming violent and agitated. In response to his complaint about not having enough sugar in his cup of afternoon tea, Heaney not only added 7 to 8 more spoonfuls, but also some vinegar and watched him drink it whilst others looked in horror. The second victim was a woman in her 90s with dementia who was very confused and unable to indicate her needs. Whilst sat in her wheelchair, looking out of the window, Heaney approached from behind and, for no reason, slapped her across the back of her head. When a witness asked “why?”, she just laughed and walked on.
The trial judge passed consecutive prison sentences of 3 months and 6 months respectively. However, the Court of Appeal held that the sentences should run concurrently, therefore totalling 6, rather than 9, months. Neither victim had sustained any distress or injury, the incidents were very short, and the appellant had lost, and had no realistic prospect of returning to, her chosen livelihood.
Comment: This case is interesting in two respects. First, Heaney’s conviction post-dates the Court of Appeal’s decision in R v Hopkins  EWCA Crim 1513 where the legal certainty of the Mental Capacity Act offence was called into question (see our June 2011 newsletter). On that occasion, the Court would have declared that the offence was so vague as to breach Article 7 of the ECHR for failing to specify which decision the victim must lack, or be reasonably believed to lack, the mental capacity to make. However, it was bound to follow its previous decision in R v Dunn  EWCA Crim 2395 where it held that the incapacity must relate to decisions ‘about the care’ they receive. Although its legal certainty was not called into question on this occasion, the statutory offence remains vulnerable to further challenge, perhaps in a trial where the degree or nature of the victim’s incapacity is not so obvious.
Secondly, the judgment highlights one of the shocking peculiarities of English criminal law. At paragraph 9 Mrs Justice Thirlwall noted:
“Elderly people have a right to be treated with respect by everyone in the community. When they are ill and living in residential homes, they are entitled to expect, and we must demand, that they are properly cared for. What this appellant did was the opposite of that.”
And, yet, it is not generally a crime for health or social care professionals to ill treat or wilfully neglect the elderly. Consider, for example, the abysmal lack of care at Mid Staffordshire NHS Foundation Trust hospital which left patients in pain, humiliated and routinely neglected. One 86-year-old was admitted there due to recurring vomiting. Her daughter described the ward nurses as bullies and when patients ‘were calling out for the toilet … they would just walk by them’ (Independent inquiry into care provided by Mid Staffordshire NHS Foundation Trust, January 2005-March 2009 HC375-1, vol 1, page 45). At present, such alleged conduct would only be a criminal matter if the elder was mentally disordered or incapacitated: those who are vulnerable simply by reason of their age are not protected. One suggestion, therefore, is to criminalise the deliberate or reckless causing of unnecessary suffering by someone required by law to care (N. Allen, ‘Psychiatric care and criminal prosecution’ in Medicine, Crime and Society (forthcoming) Cambridge University Press).