In Kurtz v R  EWCA Crim 2743, the Court of Appeal had to grapple again with the problematic wording of s.44 MCA 2005 (creating the offence of ill-treatment and wilful neglect).
A solicitor specialising in mental capacity was charged with the offence of wilfully neglecting her mother in respect of whom she was the donee of an enduring power of attorney (‘EPA’), contrary to s 44(1)(b) MCA 2005. Her mother, with whom the solicitor lived, had a history of mental illness including bipolar disorder, depression and obsessive-compulsive disorder. She also had a history of failing to co-operate with medical professionals when they tried to help her. The mother had refused to see her GP or to have a Mental Health Act 1983 assessment in 2004, and thereafter had had nothing to do with doctors. There was evidence that in the past when her mother had availed herself of medical assistance it had temporarily alleviated her mental health conditions. There was also evidence that the mother could be difficult with anyone within the family who tried to persuade her to seek medical attention. When paramedics, called by the solicitor, attended the home, her mother was pronounced dead at the scene. She was 79 at the time of her death. Her body was in a seated position on a sofa in the living room which had an indent in it suggestive of her having sat there in the same position for some considerable time. She was sitting in her own urine and faeces, and had urine burns and sores on her buttocks and legs. She was malnourished (weighing only about six stone) and was covered in dirt. Her hair was matted and her nails were unkempt, suggesting that they had received no attention for over a year. When the paramedics tried to lift her body from her seat, her clothes fell apart. She had not changed her clothing for many, many months.
The prosecution originally charged the solicitor with the offence under s.44(1)(a) MCA 2005, on the basis that she had care of her mother. However, the prosecution then changed the indictment to the offence of s.44(1)(b), on the basis that she was the donee of an EPA. This was on the basis that the prosecution considered that this obviated the need for the prosecution to prove either that her mother lacked capacity, or that the solicitor had care of her; and, hence that this made the prosecution’s task simpler.
At the trial, the judge had agreed with the prosecution and ruled that the prosecution did not need to prove that the woman’s mother lacked capacity. The judge therefore did not direct the jury in relation to capacity. The solicitor was convicted and sentenced to 30 months’ imprisonment. She appealed to the Court of Appeal on the basis that the existence of the EPA was not sufficient of itself to render the Appellant guilty of the offence contrary to s 44(1)(b) of the MCA 2005, even if she had wilfully neglected her mother. Two points were advanced in support of this ground:
1. The offence created by s.44(1)(b) only applied where the EPA had been registered.
2. Section 44(1)(b) had to be read as requiring the prosecution to prove that the victim lacked capacity at the time of the offence; as the judge had directed to the contrary, the solicitor’s conviction was unsafe.
Prefacing their consideration of the grounds, the Court of Appeal expressed their sympathy for the judge, faced with the task of interpreting s.44(1)(b) in the absence of Court of Appeal authority and against the background of criticism by the Court of Appeal of the drafting of s.44 in connection with appeals against conviction for the offence contrary to s.44(1)(a) of the MCA 2005 (see here and here).
The Court of Appeal had no hesitation in rejecting the first limb of the solicitor’s appeal, not least because:
[u]nder paras 4 and 13 of Sch 4, only the donee of an EPA can register it. If the s 44(1)(b) offence required the EPA to be registered, then the donee could avoid liability for the offence, no matter much they ill-treated a non-capacitous donor, by not registering the EPA. This would hardly further the principal aim of the MCA 2005 to provide protection for those who are vulnerable through a lack of capacity.
As to ground 2, the Court of Appeal identified the essential question as being as whether:
on a prosecution for the offence contrary to s 44(2) read with s 44(1)(b), the prosecution must prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. We shall refer to this as ‘the lack of capacity requirement’.
Having conducted an extensive examination of the pre-history to s.44, statements made during its legislative passage, and the Code of Practice, the Court of Appeal concluded that the answer must be ‘yes,’ rejecting the broader construction that the judge had adopted, which could give rise to criminal liability merely because the victim had granted the EPA (and hence even if they, in fact, had capacity at the time).
The court recognised that:
possibly there might be circumstances when a donee of an EPA with authority for property and affairs could wilfully neglect a donor who has the relevant mental capacity regarding his/her property and affairs, but with physically restricted access to funds, for whatever reason. However, we find it difficult to contemplate how a capacitous donor of an EPA could be wilfully neglected in terms of their personal welfare, if that donor refuses medical treatment and why the donee of an EPA, restricted as it is to property and financial affairs, should be made criminally liable in those circumstances. We do not believe that this result, which would be a consequence of the broader interpretation, could represent the will of Parliament, which was careful to preserve the autonomy of the individual by the principles expressed in s 1 of the MCA 2005.
As the judge had failed to direct the jury that it had been for the prosecution to prove that the victim lacked capacity, the solicitor’s appeal was allowed.
It is clear that the Court of Appeal had some considerable reservations about the outcome of the appeal on its facts. It observed that:
The state of [the victim] in the months leading up to her death, and the conditions in which she spent the last weeks and months of her life, might well have been sufficient, without more, for the jury to have been satisfied that she lacked capacity. Also, given that the Appellant was a solicitor specializing in mental capacity matters, and given that she lived with her elderly and infirm parents, the prosecution would have had little difficulty in showing that she had the care of her mother for the purposes of s 44(1)(a). We consider that had the prosecution proceeded on the indictment as originally drafted then the complications of this case might never have arisen.
As to the law, the case only reinforces how poor is the drafting of s.44, as the Court of Appeal had to undertake what amounted to a wholesale rewriting of s.44(1)(b). After all, on its face, there is nothing to suggest that s.44(1)(b) is limited by the capacity requirement, and it would have been equally plausible (absent the legislative archaeology exercise undertaken) to have construed s.44(1)(b) as applying where a person is abused or wilfully neglected by someone they trusted sufficiently to make their attorney. This is particularly so given that an LPA (unlike an EPA) is not registered upon incapacity, but rather from the outset. On one view, therefore, the registration of an LPA (and hence its creation for purposes of the MCA) automatically puts the donor in a potentially vulnerable position, as the donee could manipulate or otherwise misrepresent the donor’s capacity to take relevant decisions.
Given that the capacity requirement has been held to be the person’s capacity to make decisions concerning his/her care (under s.44(1)(a) but now, apparently, also to be read across to s.44(1)(b)) it seems that the offence under s.44(1)(b) is very much narrower, and more difficult to establish, than we might have thought.
 See s.9(2)(b).