Judge: Court of Appeal (Jackson LJ, Thirlwall J and HHJ Goldstone QC)
Citation:  EWCA Crim 965
Summary: This appeal against conviction for under s.44 MCA 2005 for wilful neglect provides a useful clarification of two aspects of this notoriously difficult offence.
The appellant was a nurse on duty in a nursing home in which an elderly man suffering from dementia was living. A nursing assistant noted that the man was becoming ill, and notified the appellant. She consulted another nurse on duty, who examined him and noted that his breathing was shallow and his pulse was faint. She did not immediately telephone for help, but first telephoned the man’s son in America, receiving the (unsurprising) answer that he could not assist as he was 4,000 miles away. The appellant then dialled 999 and asked for an ambulance; which was duly dispatched. A clinical adviser telephoned back some 5 minutes later to ask how the man was doing. The appellant said that he had stopped breathing and died. Craig then asked whether anyone was doing CPR. The appellant replied no, adding that CPR was not allowed at the home. The adviser repeated his question several times. The appellant always gave the same answer. At one point the appellant said that she did not have the necessary equipment. These answers were incorrect, as there was no rule banning CPR, and on the contrary staff were required to carry out CPR when that was required. No equipment was needed to carry out CPR. The ambulance arrived shortly afterwards, but the paramedics were not able to resuscitate the man. A post mortem examination was then carried out, which revealed that he had been suffering from pneumonia. This had caused respiratory arrest, which in turn caused cardiac arrest. There is a very low survival rate from this kind of cardiac arrest, and CPR would probably not have saved his life. The question therefore arose as to why the nurse had not undertaken it (there was, for instance, no ‘Do Not Resuscitate’ notice in the man’s records or sign to that effect in his room).
The appellant was charged with one count of ill-treatment or neglect of a person who lacked capacity contrary to s.44 MCA 2005; she was convicted after a Crown Court trial and sentenced to a community order for 12 months with a requirement that the appellant perform 100 hours of unpaid work.
She appealed to the Court of Appeal, founding her appeal upon two aspects of the judge’s direction to the jury. The appellant obtained leave to appeal to the Court of Appeal on two separate grounds. The first ground was that the judge failed to direct the jury properly in relation to the meaning of neglect in the context of s. 44 MCA 2005. In particular, she contended that the judge wrongly directed the jury that neglect could be established even if it was unlikely that the appellant’s inaction caused any adverse consequence. The second ground was that the judge failed to direct the jury properly about the meaning of ‘wilfully.’ In particular, she contended that the judge wrongly directed the jury that if the appellant acted out of stress or panic that would not constitute a defence.
The Court of Appeal considered the two grounds in reverse order, and did so on the basis of an agreed position that: (1) it was unlikely that, had CPR been administered, this would have prolonged the life of the man; (2) there was no DNR notice in the man’s room or over his bed; (3) proper medical practice required CPR to be given in those circumstances; (4) standard practice at the nursing home required CPR to be administered in those circumstances, and the policy of the nursing home with which the appellant conceded she was familiar provided “if in doubt resuscitate.”
In respect of the first ground, the Court of Appeal held (paragraph 34) that the actus reus of the offence under s.44 MCA 2005 is complete if a nurse or a medical practitioner neglects to do that which should be done in the treatment of the patient (by contrast, for instance, to the offence under s.1 Children and Young Persons Act 1933 of wilfully neglecting a child or young person under the age of 16 “in a manner likely to cause him unnecessary suffering or injury to health.”) The Court of Appeal accepted the CPS’s submission that the appellant could and did not know what the effect of the CPR would have been, and it was purely fortuitous that it turned out after the event that CPR probably would not have saved the man’s life. The Court of Appeal also noted the clear distinction between the offence of neglect under s.44 MCA 2005 and the (much more serious) offence of gross negligence manslaughter, where causation would be an issue.
In respect of the second ground, the Court of Appeal noted that, whilst it could not determine whether the appellant had been in a state of stress or panic, it was perfectly clear that the evidence of neither party at the trial was suggesting that the appellant was in an hysterical state or unable to talk rationally or act in a rational way. The Court of Appeal went on to hold (paragraph 42) that
“neglect is wilful if a nurse or medical practitioner knows that it is necessary to administer a piece of treatment and deliberately decides not to carry out that treatment, which is within their power but which they cannot face performing. … if the appellant was acting at a time of stress, that would be a matter which the judge could take into account at the time of sentence.”
Having found that the judge’s directions could not be criticised, the Court of Appeal therefore dismissed the appeal.
Comment: Section 44 MCA 2005 is notoriously badly-drafted, and has been the subject of highly critical comments from the Court of Appeal in R v Dunn  EWCA Crim 2935, R v Hopkins and R v Priest  EWCA Crim 1513 and Ligaya Nursing v R  EWCA Crim 2521, the criticism focusing (in particular) upon the difficulty of mapping across the concepts of incapacity for purposes of ss.2-3 MCA 2005 onto the offence. The offence, however, remains on the books, and this decision provides useful clarification of two further elements which have yet to be the subject of judicial consideration. In particular, the emphasis upon the need to identify what was clinically required in the particular circumstances of the case seems to us to be important (and correct) for an offence whose purpose is to ensure that those caring for vulnerable adults are held to account when the care they deliver falls below an acceptable standard.