Ligaya Nursing v R

Under section 44 of the Mental Capacity Act 2005, deficient care alone does not establish wilful neglect. The offence is sufficiently certain, although capacity is decision-specific and the person retains autonomy in matters which they can decide. A person remains protected from wilful neglect in matters in which they lack capacity.

Conduct which reflects, or is believed to reflect, the protected autonomy of the person receiving care cannot amount to wilful neglect. Accordingly, if the evidence permits the possibility that apparent neglect was motivated by a wish or sense of obligation to respect that autonomy, the prosecution has not proved wilful neglect.

The appellant, a trained mental-health nurse, was convicted at Southampton Crown Court of wilfully neglecting Miss Peggy Gill, a person with a significant learning disability, contrary to section 44 of the Mental Capacity Act 2005.

The Crown relied on an alleged course of inadequate care, including poor personal and room hygiene, dirty clothing and bedding, food hygiene, and medication. The appellant contended that Miss Gill could express preferences and make some simple decisions. She said that she had sought to respect those wishes, including refusals of assistance.

On appeal, the appellant argued that the statutory concept of capacity made the criminal offence impermissibly uncertain. She also challenged the judge’s direction that respecting autonomy would not necessarily prevent neglect from being wilful. The central issue was the effect of protected autonomy on the mens rea of wilful neglect.

Appeal allowed. The conviction was unsafe because of a material misdirection on wilful neglect.

1. Section 44 of the Mental Capacity Act 2005 creates a sufficiently certain offence. The statutory scheme protects a person receiving care against ill-treatment or wilful neglect, while preserving that person’s autonomy as far as possible. Capacity is issue-specific. A person may retain capacity for some decisions, yet remain protected in matters for which they lack capacity.

2. The court approved the analysis in Re S and Another (protected persons) [2010] 1 WLR 1082 that capacity is not an all-or-nothing condition. It rejected the contention, based on an observation in R v Hopkins and Priest [2011] EWCA Crim. 1513, that the resulting offence was legally uncertain.

3. Wilful neglect requires more than proof of neglect. The court held that actions or omissions which reflect, or are believed to reflect, the protected autonomy of the person receiving care do not constitute wilful neglect. This accommodates both the protection intended by section 44 and the statutory respect for the person’s wishes and freedom of action.

4. The trial judge correctly explained the autonomy principle, but erred in directing that neglect motivated by that consideration would not necessarily be wilful. If the jury concluded that the appellant might have been motivated by a wish, or perceived obligation, to respect Miss Gill’s autonomy, any neglect so motivated was not wilful. The erroneous direction undermined the safety of the conviction.

5. It was therefore unnecessary to decide the separate ground concerning limits on cross-examination of a prosecution witness about alleged bad character.

• Court of Appeal (Criminal Division) — allowed the appeal against conviction and held the conviction unsafe: [2012] EWCA Crim 2521.
• Southampton Crown Court — on 15 May 2012, before His Honour Judge Ralls QC and a jury, convicted the appellant of wilful neglect contrary to section 44 of the Mental Capacity Act 2005.