View source for ICLR R v Ligaya Nursing (2012) EWCA Crim 2521, (2012) MHLO 134

<div class="perm">
''CRIME — Person lacking capacity — Wilful neglect — Meaning of capacity — Person having some ability to convey preferences and wishes and to make own decisions — Need to respect person’s autonomy — Whether offence legally uncertain — Whether wilful neglect where defendant motivated or possibly motivated by wish or sense of obligation to respect autonomy of person concerned — Mental Capacity Act 2005, ss 1, 2, 3, 44''

'''Regina v Nursing'''

'''[2012] EWCA Crim 2521;  [2012] WLR (D)  360'''

CA:  Lord Judge CJ, Simon, Wilkie J:  30 November 2012

The offence of wilfully neglecting a person who lacked capacity, contrary to section 44(2) of the Mental Capacity Act 2005, was not legally uncertain. Neglect was not wilful if a defendant’s acts or omissions were or might have been motivated by the wish or sense of obligation to respect the autonomy of the person concerned.

The Court of Appeal, Criminal Division, so held when allowing an appeal by the defendant, Ligaya Nursing, against her conviction on 15 May 2012 in the Crown Court at Southampton (Judge Ralls QC and a jury) of wilful neglect of a person who lacked capacity contrary to section 44(2) of the 2005 Act.

'''LORD JUDGE CJ''', giving the judgment of the court, said that the defendant, a trained mental health nurse with a general nursing qualification, ran a care home. Miss Gill, a lady with a significant learning disability, resided in the home until it closed and then in a property owned by the defendant and her husband where some rooms were rented out. Miss Gill needed constant care because she could not manage to lead an independent life but she had some ability to convey her preferences and wishes and to make her own decisions. It was submitted that the provisions of the Mental Capacity Act 2005 were complex and irremediably uncertain in their ambit. The legislation was difficult. Lack of capacity, as defined in section 2, supplemented by section 3, provided a complicated series of tests to identify circumstances in which an individual was to be found to be unable to make decisions for himself. The overall purpose of the statutory regime was correctly analysed in In re S (Protected Persons) [2010] 1 WLR 1082, paras 51–53. It was submitted that Miss Gill was presumed to have capacity to make her own decisions, whether they were wise or not, and if her wishes were not followed then, even if she lacked capacity generally, they should only be disregarded in as limited a way as possible so as not to interfere with her freedom of choice, and that someone in the position of the defendant appeared to be required not to act in relation to any aspect of care until satisfied that the person being cared for lacked capacity in the specific areas then under consideration, and even then only to act with the minimum interference with her autonomy so that, in the absence of any evidence of pain or suffering, that would preclude any physical interference or bodily handling at all. In essence, it was contended that in an Act which covered both criminal and civil proceedings relating to those who lacked capacity, yet without making any apparent distinction between them in that context, the absence of capacity in respect of one area of decision could not be used to found an assessment of general lack of capacity at the same time, or indeed for the future.

There was force in the defendant’s submissions concerning the matters to which capacity was to relate such that a defendant might be uncertain how to protect herself from, on the one hand, potential liability for an invasion of autonomy and, on the other hand, potential prosecution for neglect. The purpose of section 44 of the 2005 Act was clear: those in need of care were entitled to protection against ill-treatment or wilful neglect. The question whether anyone had been so neglected had to be examined in the context of the statutory provisions which provided that, to the greatest extent possible, their autonomy should be respected. The evidential difficulties which might arise when the offence was charged did not make it legally uncertain within the principles in R v Mirsa [2005] 1 Cr App R 328 and R v Rimmington [2006] 1 AC 459. On analysis, the offence created by section 44(2) was not vague; it made it an offence for an individual responsible for the care of someone who lacked the capacity to care for himself to ill-treat or wilfully to neglect that person; those in care who still enjoyed some level of capacity for making their own decisions were entitled to be protected from wilful neglect which impacted on the areas of their lives over which they lacked capacity. But it was not an absolute offence, so actions or omissions, or a combination of both, which reflected or were believed to reflect the protected autonomy of the individual needing care did not constitute wilful neglect. Within those clear principles, the issue in an individual prosecution was fact-specific. In the present case the trial judge’s direction to the jury that, if the defendant was or might have been motivated by the principle of autonomy, then any neglect which was proved “would not … necessarily have been proved to be wilful”, was a misdirection. If the jury were to have concluded that the defendant might have been motivated by the wish or sense of obligation to respect Miss Gill’s autonomy, any area of apparent neglect so motivated would not be wilful for the purposes of the offence.

'''Appearances:''' Sarah Jones (instructed by Peach Grey & Co, Southampton) for the defendant; Edward Phillips (of Crown Prosecution Service, Wessex) for the prosecution.

'''Reported by:''' Philip Ridd, Solicitor.

© 2012. The Incorporated Council of Law Reporting for England and Wales. 
</div>