Kurtz [2018] EWCA Crim 2743

In R v Kurtz [2018] EWCA Crim 2743, the Court of Appeal allowed an appeal against conviction for an offence of wilful neglect contrary to section 44(2) read with section 44(1)(b) of the Mental Capacity Act 2005.

Emma-Jane Kurtz, a solicitor specialising in mental capacity matters, was convicted at Oxford Crown Court on 27 March 2018 of wilfully neglecting her mother Cecily, in respect of whom she held an enduring power of attorney. She was sentenced to 30 months’ imprisonment on 27 April 2018. The Registrar of Criminal Appeals referred the case to the Full Court, granting permission to appeal. Section 44(1)(b) creates an offence where a donee of a lasting power of attorney or enduring power of attorney ill-treats or wilfully neglects the donor. This provision had not previously been considered by the Court of Appeal.

The prosecution case was that Cecily, who was 79 and suffered from serious mental illness including bipolar disorder, depression and obsessive-compulsive disorder, had been wilfully neglected by the appellant over a long period, particularly through the appellant’s failure to arrange medical treatment. On 2 July 2014 paramedics found Cecily dead at the family home in Didcot, Oxfordshire. She was seated on a sofa in squalor, sitting in her own urine and faeces, severely malnourished, with matted hair and unkempt nails. She had not changed her clothing for many months. The house itself was in a state of disrepair. Cecily had refused to see doctors since 2004 and had a history of refusing help, although past medical intervention had temporarily alleviated her conditions. A consultant geriatrician concluded that she had not been looking after herself for months or possibly years and would have benefited from hospital admission. The cause of death was deep vein thrombosis resulting from prolonged inactivity.

The appellant, aged 41 and of good character, was mildly autistic with paranoid traits and a tendency to avoid conflict. In 2006 Cecily had granted her an EPA pursuant to the Enduring Powers of Attorney Act 1985. The EPA was never registered with the Public Guardian nor replaced with a lasting power of attorney under the 2005 Act. The indictment was originally drafted as an offence contrary to section 44(1)(a) against both the appellant and her father, alleging wilful neglect of a person for whom they were caring and who lacked or whom they reasonably believed to lack capacity. The prosecution decided not to proceed against the father due to his ill health and amended the charge to one under section 44(1)(b). The prosecution took the view that this obviated the need to prove either that Cecily lacked capacity or that the appellant reasonably believed she lacked capacity, or that the appellant had the care of her mother.

The trial judge ruled that the prosecution did not need to prove lack of capacity in respect of an offence under section 44(1)(b). He held that Parliament had made capacity requirements clear in sections 44(1)(a) and 44(1)(c) but not in 44(1)(b). The judge directed the jury that they need not consider whether Cecily lacked capacity. The jury convicted and the questions posed in the route to verdict focused on whether Cecily required medical help, whether the appellant appreciated this, whether the appellant had metaphorically closed the door on her mother such that she was indifferent to her welfare, whether the appellant failed to obtain required help, and whether that failure was unreasonable.

The appellant advanced two grounds of appeal. Ground 1 contended that section 44(1)(b) should apply only to registered EPAs, because most powers under an EPA cannot be exercised until registration under Schedule 4 to the 2005 Act. The appellant argued that imposing criminal liability in virtue of an unregistered EPA was too remote a basis for criminal liability. Ground 2 submitted that the 2005 Act, whose long title referred to persons who lack capacity, should not be read to criminalise wilful neglect of any donor of an EPA or LPA regardless of whether the donor had capacity. The appellant contended that section 44(1)(b) should be read as requiring proof that the donor lacked capacity or that the defendant reasonably believed the donor lacked capacity.

Lady Justice Macur, delivering the judgment of the court, rejected Ground 1. Section 44(1)(b) imposed no requirement for registration of the EPA. Paragraph 2(1) of Schedule 4 defined an EPA without requiring registration. There was no basis for reading in such words. If registration were required, a donee could avoid liability simply by not registering the EPA, which would hardly further the Act’s principal aim of protecting the vulnerable. The court noted that only the donee could register an EPA under paragraphs 4 and 13 of Schedule 4.

The court allowed Ground 2. The central question was whether P in section 44(1)(b) meant a person who lacked capacity or whom the defendant reasonably believed lacked capacity, as in section 44(1)(a) and as must be the case in section 44(1)(c), or whether P meant any person who had granted an EPA or LPA, regardless of capacity. The court adopted the narrow construction, holding that section 44(1)(b) required proof that the donor lacked capacity or was reasonably believed to lack capacity.

The court examined the broader statutory context. Section 44 derived from earlier provisions criminalising neglect and ill-treatment of the mentally disordered, with the perceived need to extend protection to incapacitated persons, a broader category than the mentally disordered. Nothing in the legislative history suggested any intention to extend the offence to ill-treatment or neglect of those with capacity. The Law Commission’s 1995 report on mental incapacity proposed extending section 127(2) of the Mental Health Act 1983 to protect all incapacitated persons from ill-treatment or wilful neglect by their carers. The Commission’s draft Bill created an offence addressing the fact that the proposed legislation created ways for a person to acquire powers over another lacking decision-making capacity. The Government initially rejected creating a new offence in its 1999 policy statement but later included clause 42 in the 2004 Mental Capacity Bill, which became section 44.

The court held that the natural and ordinary meaning of the words used by Parliament in section 44 supported the view that P, as referred to in section 44(1)(b), was a person who lacked capacity or whom the defendant reasonably believed lacked capacity. P was defined as such a person in section 44(1)(a), and if Parliament intended P in section 44(1)(b) to have different characteristics, that would have been made clear. The court agreed with observations in R v Clare Dunn [2010] EWCA Crim 2395 that section 44’s purpose was to provide protection for the mentally disadvantaged from ill-treatment. The court also referred to R v Hopkins; R v Priest [2011] EWCA Crim 1513, in which the Court commented on the drafting difficulties in section 44(1)(a) regarding proof of capacity, and held that the prosecution must prove to the criminal standard that the defendant ill-treated or wilfully neglected a person in his care, and on a balance of probabilities that the person lacked capacity or was reasonably believed to lack capacity.

The court noted that the broader construction would produce anomalous results. Sections 44(1)(a) and 44(1)(c) applied only to persons who lacked capacity or whom the defendant reasonably believed lacked capacity. Section 44(1)(c) applied to deputies, but the Court of Protection could only appoint a deputy for a person lacking capacity under section 16(2). The broader construction would mean section 44(1)(b) alone applied to a much wider class including those of sound mind, for which there was no sensible justification. An EPA could be exercised despite the donor possessing capacity but was confined to property and financial affairs. An LPA could cover property and affairs and personal welfare, but authority over personal welfare did not extend to circumstances where the donor had capacity. The court found it difficult to contemplate how a capacitous donor of an EPA could be wilfully neglected in terms of personal welfare if that donor refused treatment.

The court held that Ministerial statements during the Bill’s passage through Parliament satisfied the criteria in Pepper v Hart [1993] AC 593 and supported the narrow construction. The Parliamentary Under-Secretary stated that the Bill protected people who lacked mental capacity and introduced a new criminal offence of ill-treatment or neglect aimed at capturing individuals in positions of trust, care and power over people lacking capacity, including donees, deputies and carers. The court also noted that English law does not generally impose criminal liability for omissions absent special circumstances. If Parliament had intended to make it an offence for an EPA or LPA donee to wilfully neglect a capacitous donor, representing a significant policy departure, it would have used unambiguous language. Finally, the Code of Practice issued under section 42 stated in two places that the section 44 offence applied only to those who lacked capacity or whom the defendant reasonably believed lacked capacity.

The court concluded that despite evidence suggesting the appellant should at a minimum reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge’s failure to direct the jury on the lack of capacity requirement was fatal to the safety of the conviction. In short, the section 44(1)(b) offence of wilful neglect by a donee of an EPA or LPA can only be committed where the donor lacked capacity or the defendant reasonably believed the donor lacked capacity, and the trial judge’s failure to so direct rendered the conviction unsafe.

Hopkins & Priest [2011] EWCA Crim 1513
Rimmington [2005] UKHL 63; [2006] 1 Cr App R 17, [2006] 1 AC 459
R v Clare Dunn [2010] EWCA Crim 2395
City Council v Colley [1993] AC 401