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[2018] WLR(D) 753

<div align="center">Court of Appeal

Regina v Kurtz

[2018] EWCA Crim 2743

2018 Oct 9; Dec 10

Macur LJ, Julian Knowles J, Judge Wall QC</div>

''Crime— Person lacking capacity— Wilful neglect— Defendant having unregistered enduring power of attorney over deceased— Deceased dying in squalor after refusing medical treatment and defendant failing to seek medical treatment for her— Defendant charged with wilful neglect of deceased— Judge ruling Crown not required to prove lack of capacity of deceased— Judge failing to direct jury about deceased’s capacity in summing up— Whether offence committed if enduring power of attorney not registered with Public Guardian— Whether defendant wilfully neglecting capacitous donor of enduring power of attorney in respect of donor’s personal welfare— Mental Capacity Act 2005 (c 9), s 44(1)(b), Sch 4, paras 4, 13''

The deceased was an elderly lady who had a history of mental illness and failing to co-operate with medical professionals who tried to help her. In 2004 she refused to see her GP or have a mental health assessment and thereafter refused to have anything to do with doctors. There was evidence that she could be difficult with anyone in the family who tried to persuade her to seek medical attention. There was also evidence that medical assistance had temporarily alleviated the deceased’s mental health conditions in the past. She lived in squalor with her husband and daughter, the defendant. The defendant was a solicitor specialising in mental capacity matters. In 2006 the deceased granted the defendant an enduring power of attorney (“EPA”) pursuant to the Enduring Powers of Attorney Act 1985, which was never replaced with a lasting power of attorney pursuant to the Mental Capacity Act 2005, nor registered with the Public Guardian. Despite the fact that the deceased had been unable to stand for some time and had been refusing food, the defendant failed to seek medical treatment for her until the day before her death, when she rang the doctor to say her mother needed alternative accommodation while maintenance work was done to the house. She rang for an ambulance the day of the deceased’s death. Paramedics who attended the scene pronounced the deceased dead on arrival, having suffered a deep vein thrombosis. She had been sitting in her own urine and faeces, had urine burns and sores on her buttocks and legs and had not changed her clothes for many months. The defendant was charged with wilfully neglecting the defendant contrary to section 44(1)(b) of the 2005 Act. Before the trial, the judge ruled that the Crown did not have to prove the deceased’s lack of capacity for the defendant to be guilty of the offence. Accordingly, in his summing up the judge did not give the jury any direction relating to the deceased’s capacity. The defendant was convicted and appealed against conviction on the ground that the existence of the EPA was insufficient of itself to render the defendant guilty of the offence contrary to section 44(1)(b) of the 2005 Act.

On the defendant’s appeal—

Held, appeal allowed. Section 44(1)(b) of the Mental Capacity Act 2005 did not impose a requirement that an offence could only be committed by the donee of an enduring power of attorney (“EPA”) if it had been registered with the Public Guardian pursuant to paragraphs 4 and 13 of Schedule 4 to the 2005 Act. Section 44 of the 2005 Act did not extend to those who had capacity. The person referred to in section 44(1)(b), as defined in paragraph (a), was a person who lacked capacity, or whom the defendant reasonably believed lacked capacity, in relation to the matter in question. An EPA could be exercised by the donee, despite the donor’s possessing mental capacity, in matters concerning property and financial affairs, but not in respect of his or her personal welfare. The donee could not wilfully neglect or be made criminally liable for the neglect of a capacitous donor of an EPA, who refused medical treatment, in terms of his or her personal welfare. Under section 44(1)(b) of the 2005 Act, the Crown had to prove lack of capacity as an element of the offence. It was insufficient for the Crown merely to prove that the defendant was the donee of an EPA and that the defendant ill-treated or wilfully neglected the donor. On the evidence of the donor’s state in the months leading to her death and the conditions in which she spent her last weeks and months of her life, the defendant should reasonably have believed the donor lacked mental capacity. This might have been sufficient, without more, to satisfy the jury that the donor lacked capacity. The judge had misdirected the jury in a material way and the conviction was unsafe (paras 19, 27, 36–39, 52, 54, 61, 62–63, 66, 74).

Pepper v Hart [1993] AC 593, HL(E) and R v Dunn [2011] 1 Cr App R 34, CA applied.

Per curiam. (i) Although a lasting power of attorney under the Mental Capacity Act 2005 is broader in scope than an enduring power of attorney under the Enduring Powers of Attorney Act 1985, it only authorises the donee to make decisions about the donor’s personal welfare, where the donor lacks capacity or the donee reasonably believes the donor lacks capacity (para 60).

(ii) Wilful neglect contrary to section 44 of the 2005 Act is one of the few offences in English law which can be committed by omission, absent some special circumstance such as a special relationship between the defendant and the person harmed. The assumption of care for another may be a special circumstance in which the law imposes criminal liability for omissions (para 68).

Clare Wade QC and Susan Wright (assigned by the Registrar of Criminal Appeals) for the defendant.

Oliver Saxby QC (instructed by Crown Prosecution Service, Special Crime Division, Appeals Unit) for the Crown.

<p style="text-align:right">Georgina Orde, Barrister</p>