Dunn, R. v

For the offence under section 44 of the Mental Capacity Act 2005, lack of capacity has the meaning given by section 2 of that Act. The relevant matter may be the decisions about care that a resident cannot make and that are instead made by others.

In a prosecution concerning ill-treatment during long-term residential care, a jury need not always be directed separately on every decision-making criterion in section 3. A direction framed by reference to section 2 is sufficient where it properly identifies the care decisions in issue and the evidence supports a finding that the person lacked capacity to make them.

The appellant, the manageress of a residential care home, was convicted at the Crown Court at Southend of four counts of ill-treatment of persons without capacity, contrary to section 44 of the Mental Capacity Act 2005. The complainants were elderly residents with dementia and associated cognitive impairments.

She denied the alleged ill-treatment. Her appeal challenged only the Recorder’s direction on whether the complainants lacked capacity. The Recorder directed the jury using the language of section 2, but did not set out the criteria in section 3. The central issue was whether that omission made the convictions unsafe.

1. Appeal dismissed. Leave to appeal was granted, but the convictions were safe. Section 44 of the Mental Capacity Act 2005 protects a person who lacks capacity and is ill-treated or wilfully neglected by a person caring for that person.
2. Section 2 defines lack of capacity for the Act as a whole, including section 44. Capacity is assessed in relation to the relevant matter. The jury could properly find that, when the alleged ill-treatment occurred, decisions about each resident’s care were made by others because that resident lacked capacity to make those decisions personally.
3. Section 3 identifies the circumstances in which a person is unable to make a decision. Its decision-making criteria may be important in an appropriate case. However, the statute does not require those criteria to be separately incorporated into every jury direction under section 44.
4. On the facts of long-term residential care, the Recorder’s direction accurately placed the issue within section 2. It was unnecessary to add the section 3 criteria and thereby complicate the jury’s task. The absence of an express direction on a specific decision or time did not undermine the convictions.

• Court of Appeal (Criminal Division) — Leave to appeal was granted and the appeal against conviction was dismissed: [2010] EWCA Crim 2935.
• Crown Court at Southend — The appellant was convicted on 20 May 2010 of four counts under section 44 of the Mental Capacity Act 2005.