Most people feel a moral obligation to care for elderly relatives, but a legal duty to do so only arises where they lack the mental capacity to make decisions for themselves. The Court of Appeal made that point in quashing the conviction of a woman who had been accused of wilfully neglecting her mother.
The wasted body of the 79-year-old mother was found in a state of extreme squalor, slumped on a sofa at the home she shared with her daughter. The mother had previously granted an enduring power of attorney (EPA) to the daughter. The daughter was subsequently convicted of wilfully neglecting the mother, contrary to Section 44 of the Mental Capacity Act 2005, and was jailed for 30 months.
In upholding the daughter’s appeal, however, the Court found that the trial judge had misdirected the jury as to the essential elements of the offence. The prosecution had been required not only to prove to the criminal standard that the mother had been ill-treated or wilfully neglected, but also, on the balance of probabilities, that she either lacked capacity or that the daughter reasonably believed that to be the case.
There was evidence that the mother, who suffered from bipolar disorder, depression and OCD, would have nothing to do with doctors. The daughter, a lawyer of previous blameless character, had shown empathy for elderly people in her professional life. She suffered from mild autism and expert evidence indicated that that she was unusually keen to avoid conflict situations.
The Court noted that, given the mother’s state and the conditions in which she spent her last weeks and months, it might have been open to jurors to conclude that she lacked capacity. However, that was not the case put before them and the scheme of the Act revealed Parliament’s concern to preserve the autonomy of the individual.
The Court noted that, in general, English law does not impose criminal liability for omissions – such as wilful neglect – in the absence of special circumstances, often some special relationship between the alleged offender and the person harmed. To make it an offence for the recipient of an EPA to wilfully neglect or ill-treat a donor with capacity would represent a departure from that traditional approach and, had that been Parliament’s intention, it would have said so in terms.