Chapter 8: Criminal Law Provisions
301. Section 44 of the Mental Capacity Act 2005
introduced a criminal offence of ill treatment or neglect of a
person who lacks capacity. Where the ill treatment or neglect
is by a person (D) who has the care of the person concerned (P),
rather than a court appointed deputy or donee of a lasting power
of attorney, the Act requires P to lack capacity or D to have
a reasonable belief that P lacks capacity.
BOX 8
Ill-treatment or neglect
| (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.
(3) A person guilty of an offence under this section is liable—
(a) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;
(b) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both
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302. In 2012, 85 cases were brought under section 44 of the
Act, 36 resulting in guilty verdicts. This represents a significant
increase on 2008, which saw 36 cases brought and 7 guilty verdicts.[551]
Nevertheless, this figure seems low, in the context of 800,000
people with dementia[552]
and 1.5 million people with learning disabilities[553]
in the UK, a significant number of whom are likely to come within
the remit of the Mental Capacity Act at some point in their lives.
303. The Government told us that they did not hold details
of the exact nature of the offences prosecuted, which could not
be obtained without disproportionate cost. But "from evidence
recently collated from media articles" they have suggested
that section 44 of the Mental Capacity Act is "being used
to prosecute those who have the care of the person lacking capacity",
whereas "the Fraud Act is being used to prosecute where attorneys
and deputies have abused their position and misappropriated funds"[554].
We question the suitability of reliance on media reports to assess
the use of the section 44 offence, given that it was widely reported
that staff at Winterbourne View were prosecuted under the Mental
Capacity Act, when this was not the case. Lord McNally acknowledged
that "clearly there is work to be done to ensure that more
use is made of the offence" in the Act. He stated that his
officials "will further discuss the matter" with the
Crown Prosecution Service and contact the Association of Chief
Police Officers".[555]
304. Witnesses suggested that underuse of section 44 may,
in part, be due to drafting as well as operational concerns. The
decision and time specific nature of capacity assessment, along
with the presumption of capacity, are a defining feature of the
Act, but appeared to create problems when applied to the question
of capacity in section 44.[556]
A group of solicitors and barristers explained that "clarification
is required on the face of the statute as to what, exactly, the
person said to lack capacity in s.44(1)(a) is required to lack
capacity to decide—it is a meaningless statement to say
that someone lacks capacity".[557]
305. This echoes judicial criticism of section 44. The former
Lord Chief Justice, Lord Judge, in R v Dunn,[558]
suggested that the provisions "do not appear to be entirely
appropriate to defining the constituent elements of the criminal
offence"[559].
Similar criticisms were made in R v Hopkins and R v
Priest,[560] and
Ligaya Nursing v R.[561]
In R v Hopkins and R v Priest Lord Justice Pitchford
stated that "Unconstrained by authority, this court would
be minded to accept the submission … that Section 44(1)(a)
… is so vague that it fails the test of sufficient certainty"
required of a criminal offence.[562]
306. The Law Society of Scotland, noting these criticisms,
pointed out that the equivalent Scottish offence, contained in
the Adults with Incapacity (Scotland) Act 2000, does not require
any element of incapacity. Section 83(1) of that Act provides
that: "It shall be an offence for any person exercising powers
under this Act relating to the personal welfare of an adult to
ill-treat or wilfully neglect that adult". They added that
they were aware of "no suggestion that the wording of this
section is inappropriate or that there ought to be a requirement
to establish an additional element of incapacity".[563]
307. Lord McNally acknowledged these concerns and showed a
willingness to "explore further with the Crown Prosecution
Service whether there are significant issues with the requirement
for assessment of mental capacity that might affect how this section
of the Act is being used".[564]
308. We welcome the Government's commitment to discuss
with the Crown Prosecution Service and the Association of Chief
Police Officers the need to ensure appropriate use is made of
section 44 of the Mental Capacity Act. We request that specific
information on this be provided in the Government response to
this Report.
309. We recommend that the Government initiate a review
of whether the offence in section 44 of the Act meets the test
of legal certainty; and if it does not, to bring forward new legislative
provisions. The results of this review should be published within
12 months of publication of our Report.
551 Ministry of Justice and Department of Health. Back
552
Figures taken from the Department of Health Dementia Challenge.
http://dementiachallenge.dh.gov.uk/
2012/05/22/about-dementia/. Back
553
Mencap. Back
554
Letter from Lord McNally, Minister of State for Justice, 10 December
2013. See appendix 7. Back
555
Ibid. Back
556
Worcester County Council. Back
557
Victoria Butler-Cole, Neil Allen, Andrew Bowmer, Julie Cornes,
Charlotte Haworth Hird, Laura Hobey-Hamsher, Laura Jolley, John
McKendrick, Alex Ruck Keene, Polly Sweeney, Rachel Turner and
Paula Scully. Back
558
R v Dunn [2010] EWCA Crim 2935. Back
559
Ibid., paragraph 19. Back
560
R v Hopkins and R v Priest [2011] EWCA Crim 1513. Back
561
Ligaya Nursing v R [2012] EWCA Crim 2521. Back
562
R v Hopkins and R v Priest [2011] EWCA Crim 1513, paragraph
40. Back
563
The Law Society of Scotland. Back
564
Q 317. Back
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