R v Emma-Jane Kurtz

The Court of Appeal looked at the scope of the offence created by section 44(2) read with section 44(1)(b) of the Mental Capacity Act 2005.

The Appellant was charged with wilfully neglecting her mother who had granted enduring power of attorney ("EPA") to the Appellant under the Enduring Powers of Attorney Act 1985, which was never registered. Her mother had a long history of mental illness. She died at the age of 79 and following a call by the Appellant to the emergency services was discovered sitting on a sofa in their living room in a pool of her own urine and faeces.

At trial the Judge did not give a direction in relation to capacity as he had ruled that the prosecution did not have to prove that the Appellant's mother lacked capacity. The Appellant was convicted and appealed 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 Mental Capacity Act 2005 even if she had wilfully neglected her mother. Two grounds were raised by the Appellant;

(1) The offence created by s. 44(1)(b) only applied where the EPA had been registered; and
(2) The prosecution must prove the lack of capacity requirement in relation to the donor of the EPA under s. 44(1)(b) and as the Judge failed to give any such direction the conviction was unsafe.

The Court of Appeal rejected the first ground on the basis that as only the donee of an EPA can register it, they could avoid liability for the offence under s. 44(1)(b) no matter how much they ill-treated a non-capacitous donor, by not registering the EPA.

In relation to the second ground, they concluded s. 44(1)(b) must be construed to require the prosecution to prove the lack of capacity requirement as an element of the offence. The prosecution must prove the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant reasonably believed that s/he lacked capacity. It is not sufficient for the prosecution merely to prove that the defendant was the donee of an LPA or EPA, and that the defendant ill-treated or wilfully neglected the donor.

This meant that the judge misdirected the jury in a material way and the Court was satisfied that the Appellant's conviction was unsafe.

Held: The Court held that section 44(1)(b) requires the prosecution to prove the lack of capacity requirement as an element of the offence but does not require the donee to be a registered LPA or EPA in order to commit an offence.

The appeal was allowed and the Appellant's conviction was unsafe.