MCA 2005 s44
Any cases with a hyperlink to this legislation will automatically be added here. There may be other relevant cases without a hyperlink, so please check the mental health case law page.
- D County Council v LS  EWHC 1544 (Fam) — The original decision in this case, that LS had capacity to consent to sexual relations and marriage, was revisited in light of the House of Lords decision in R v C. (1) The MCA statutory scheme should be applied in preference to the previous civil case law; the approach in R v C clearly applied to both the civil and criminal arenas, and was consistent with s3 MCA, so would be followed. (2) Capacity requires not only an understanding of the relevant information but also the ability to retain and weigh it in the balance: therefore capacity to consent to sexual relations is person- and situation-specific, and there may be factors (such as irrational fear) impeding or undermining a person's capacity to make a choice. (3) This approach applies equally to marriage. (4) On the facts, the conclusion about capacity was the same. [Caution.]
- Oluku v CQC (2012) UKFTT 275,  MHLO 183 — A carer at Dormers Wells Lodge secretly recorded ill-treatment, which led to the conviction of two staff (Sonika Limbu, 25, of Hayes, and Pashi Sahota, 57, of Southall) under MCA 2005 s44. The manager appealed against the CQC's cancellation of her registration as a manager, but the tribunal found that she was not fit to be registered as a manager. In relation to one allegation (although technically there was no breach as at the relevant time she was not yet registered), the tribunal noted: "the necessary paperwork was not present in the form of a Deprivation of Liberty for a number of service users, and in that respect the appellant did not have suitable arrangements in place to protect service users against the risk of such control or restraint being unlawful or otherwise excessive as required under regulation 11(2) Health and Social Care Act 2008 (Regulated Activities) Regulations 2010/781, since proper assessment and recording was not being carried out."
- R v Dunn  EWCA Crim 2935 — Dunn had been convicted of four counts of ill-treating a person without capacity contrary to MCA 2005 s44 against three victims at the residential care home of which she was manageress. The judge had directed that 'a person without capacity' meant a person unable to make decisions for himself because of a disturbance or impairment of function of the mind or brain, that a diagnosis of dementia was not enough, that 'impairment' could be permanent or temporary, that capacity was presumed unless disproved on the balance of probabilities, and that this direction applied to all three victims. The defendant appealed on the basis that the direction on 'a person without capacity' was inadequate, failed to focus on the capacity of each victim to make a decision at the relevant time, and failed to identify the questions required by s3. Appeal dismissed. (1) The legislation, including s2, was convoluted and did not appropriately define the elements of the ..→
- R v GA  EWCA Crim 299,  MHLO 148 — "Section 1(2) of the Mental Capacity Act 2005 provides that 'A person must be assumed to have capacity unless it is established that he lacks capacity'. When capacity to consent is in issue in criminal proceedings, the burden of proving incapacity falls upon the party asserting it and will inevitably be the prosecution. We consider that, other than in criminal proceedings pursuant to section 44 of the Mental Capacity Act, the prosecution must discharge that burden to the criminal standard of proof; that is, they must make the jury sure that the complainant did not have capacity to consent. If the jury cannot be sure that the relevant complainant lacks capacity, then they must be directed to assume that he or she does. The issue for them then will be an examination of all the facts and circumstances to determine whether or not the complainant consented to the act or acts in question and whether the alleged assailant knew they did not consent or did not believe that ..→
- R v Heaney  EWCA Crim 2682 — The appellant had been convicted of two offences under MCA 2005 s44 and sentenced to consecutive 3- and 6-month sentences of imprisonment; on appeal, these were ordered to be served concurrently. The court took into account that 'neither of the victims in fact sustained any distress or injury and they were very short incidents', that the consequences for the appellant had been grave because she had lost her career, that she was a middle-aged woman with two young daughters, and that she was of previous good character.
- R v Kenyon (Lindsay)  EWCA Crim 2123,  MHLO 135 — Unsuccessful appeal against eight-month sentence for eight offences of neglect of a person who lacks capacity contrary to MCA 2005 s44.
- R v Ligaya Nursing  EWCA Crim 2521,  MHLO 134 — "This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005." [Detailed summary available.]
- R v Turbill  EWCA Crim 1422,  MHLO 70 — "Four members of staff at a care home in Bromsgrove were charged with wilfully neglecting one of their residents, contrary to [section 44] of the Mental Capacity Act 2005. ... Even if the agreed formula was sufficient to give the jury the kind of clear directions they needed (about which we have our doubts) the judge's directions strayed beyond them. In some of the passages to which we have referred, he appears to equate carelessness or negligence with wilful neglect. They are not the same. ... For all those reasons, we have no option, as it seems to us, but to quash the convictions." [Summary required; detailed external summary available.]
- Re AB; D Borough Council v AB  EWHC 101 (COP) — (1) The test for capacity to consent to sex is set at a relatively low level: 'does she have sufficient rudimentary knowledge of that the act comprises and of its sexual character to enable her to decide whether to give or withhold consent?' (2) Capacity to consent to sexual activity is act-specific, not partner-specific; decisions to the contrary were based on a conflation of capacity to consent to sex and the exercise of that capacity. (3) The test requires an understanding and awareness of (a) the mechanics of the act, (b) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections, and (c) that sex between a man and a woman may result in the woman becoming pregnant; however, not all criteria will apply to every type of sexual activity. (4) The test does not require an understanding (a) that sex is part of having relationships with people and may have emotional consequences, (b) that only adults over the age of ..→
- Re MAB; X City Council v MB  EWHC 168 (Fam) — MAB's parents had wanted to arrange a marriage for him in Pakistan. It was declared that MAB did not have capacity to marry; therefore any marriage, even if valid in Pakistan, would not be recognised as valid in English law. His parent's undertakings not to take him to a wedding or out of Britain were accepted and his passport was returned. Any assessment of capacity to marry must take into account the question of capacity to consent to sexual relations. This involved a low level of understanding, which must be same in its essentials as required by the criminal law under the Sexual Offences Act 2003.
West Mercia Police, 'Bromsgrove Care Staff Sentenced For Neglect' (28/8/12). The victim, who had not been helped into bed or attended to in the evening, was found in the morning lying on the floor in the corner of his room in Breme House, partly dressed and in a distressed state, suffering from borderline hypothermia and complaining of hip pain. He subsequently needed to spend five weeks in hospital. For the offence of ill treating or wilfully neglecting a person without capacity, under s44 MCA 2005: Glen Walsh, aged 23 (date of birth 18/4/89), of Granary Road, Stoke Heath, Bromsgrove, and Gail Broadway, aged 38 (dob 19/3/74), of Lyttleton Avenue, Bromsgrove were both given four month jail sentences suspended for 12 months, 12 month community orders with supervision and told to carry out 125 hours of unpaid community work; Maxine Turbill, aged 46 (dob 15/9/65), of Grayshott Close, Sidemoor, Bromsgrove, was given a two month jail sentence suspended for 12 months and a 12 month community order with supervision; all three were each told to pay £500 costs and an order was made barring them from working with children under the age of 16 and vulnerable adults. They had denied the offence but were found guilty by a jury following a seven-day trial in July this year.
BBC, 'Luton council bus driver "forgot woman with dementia"' (14/5/13). Prosecution for neglect.
Ill-treatment or neglect
44.—(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.
The Mental Capacity Act 2005 has been fully in force since 1 October 2007. For details of proposed amendments, see Mental Health Act 2007.