Mental Capacity Act 2005: post-legislative scrutiny - Select Committee on the Mental Capacity Act 2005 Contents

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.


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

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. 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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