Kurtz v R.

For the offence of ill-treatment or wilful neglect by the donee of a lasting or enduring power of attorney under Mental Capacity Act 2005, the prosecution must prove that the donor lacked capacity in relation to the relevant matter, or that the donee reasonably believed that the donor lacked capacity. Attorney status alone does not create liability. An enduring power of attorney need not have been registered for its donee to fall within the provision. This construction accords with the Act’s protective purpose and avoids the anomalous extension of criminal liability to capacitous donors.

The appellant, the donee of her mother’s unregistered enduring power of attorney, was convicted at Oxford Crown Court of wilfully neglecting her mother contrary to section 44 of the Mental Capacity Act 2005 and was sentenced to 30 months’ imprisonment.

The prosecution amended the indictment from a charge concerning a carer of a person lacking capacity to a charge based on the appellant’s status as attorney. The trial judge ruled that the prosecution did not have to prove the mother’s lack of capacity, and gave the jury no direction on that issue.

The appeal raised whether registration of the enduring power was required and whether lack of capacity was an element of an offence under section 44(1)(b).

1. Appeal allowed. The conviction was unsafe because the jury had not been directed that the prosecution had to prove the lack-of-capacity requirement. The court therefore did not consider the application concerning sentence.

2. Ground 1 failed. Section 44(1)(b) imposes no requirement that an enduring power of attorney be registered. The definition in Schedule 4 likewise contains no such requirement. Reading one in would allow an attorney to avoid criminal liability simply by failing to register the power, despite ill-treating or wilfully neglecting an incapacitated donor.

3. Ground 2 succeeded. Properly construed, section 44(1)(b), read with section 44(2), applies only where the donor lacked capacity at the relevant time, or the donee reasonably believed that the donor lacked capacity. The ordinary meaning of the structure and language of section 44 treats “P” consistently across its sub-paragraphs. The wider construction would irrationally make an attorney liable in respect of a capacitous donor, whereas carers and deputies are liable only in relation to persons lacking capacity.

4. The statutory history, the limited property-and-affairs authority under an enduring power, the restrictions on personal-welfare decisions under a lasting power, and the Act’s autonomy principles all supported that construction. The court also permissibly considered Parliamentary material under Pepper v Hart [1993] AC 593. The ministerial statements and the statutory Code of Practice confirmed that the offence protects persons who lack capacity.

5. Although there was evidence from which a jury might have found that the appellant reasonably believed her mother lacked capacity, that issue was an essential element and had been omitted from the directions. The misdirection was material and fatal to the safety of the conviction.

• Court of Appeal (Criminal Division): Granted permission and allowed the appeal against conviction because the jury had not been directed on the lack-of-capacity requirement.
• Oxford Crown Court: Convicted the appellant on 27 March 2018 of wilful neglect under section 44 of the Mental Capacity Act 2005 and sentenced her on 27 April 2018 to 30 months’ imprisonment.