Legal Update – Jailed solicitor’s conviction for wilful neglect quashed on appeal


Kurtz v R [2018] EWCA Crim 2743   A solicitor jailed for wilful neglect following the tragic death of her elderly mother has had her conviction quashed by the Court of Appeal. The appeal court found that the trial judge had erred in law when sentencing Kurtz under s. 44 Mental Capacity Act 2005 because the prosecution had failed to prove that the deceased lacked capacity at the time of the offence.

Background

In March 2018 Emma-Jane Kurtz, a solicitor specialising in mental capacity law, was convicted of the offence of wilfully neglecting her mother Cecily Kurtz , in respect of whom she was Attorney under an enduring power of attorney (EPA),  contrary to s. 44 (1) (b) of the Mental Capacity Act 2005 (MCA). She was sentenced to 30 months imprisonment.

The prosecution case was that Cecily, had suffered from a serious mental illness and her daughter, Kurtz, (who lived with her parents) had wilfully neglected Cecily over a long period of time, in particular, by failing to arrange for proper medical treatment. As a consequence Cecily lived in squalor and her health deteriorated until she sadly died. The prosecution case was that had Cecily received medical treatment she would have recovered.

In July 2014 paramedics attending the home found 79-year-old Cecily’s body in a seated position with evidence suggestive of her having been sat in the same position for some considerable time. She had been sat in her own urine and faeces and had urine burns and sores to her buttocks and legs. She was malnourished, covered in dirt and with matted hair. Kurtz had told the paramedics that her mother had not wanted help, had been unable to stand for some time and had been refusing food.

In 2006 Cecily had granted an EPA to Kurtz which remained in force following the enactment of the MCA (which introduced Lasting Powers of Attorney to replace EPAs). The EPA had not been registered with Office of Public Guardian (OPG).

The original indictment contained a count against Kurtz for wilfully neglecting someone to whom they were caring and who lacked, or whom they reasonably believed to lack capacity contrary to MCA s.44(1)(a). However, before the trial began the prosecution amended the charge against Kurtz to one under MCA s.44(1)(b) – the offence of wilful neglect of a person by a donee of an LPA or EPA.

MCA s.44 states as follows:-

(1) Subsection (2) applies if a person (‘D’) –

  1. has the care of a person (‘P’) who lacks, or whom D reasonably believes to lack, capacity,
  2. is the donee of a lasting power of attorney, or an enduring power of attorney created by P, or
  3. is a deputy appointed by the court for P

(2) D is guilty of an offence if he ill-treats or wilfully neglects P.

The prosecution argued that this substituted charge under s.44(1)(b), the wording of which makes no explicit reference to P lacking capacity,  obviated the need for it to prove lack of capacity or to prove that Kurtz had care of her mother – thus making the prosecution’s task easier.  The trial judge agreed and ruled in advance of trial that, based on a literal statutory interpretation, the prosecution did not have to prove that Cecily lacked capacity or that Kurtz had a reasonable belief that her mother lacked capacity. Consequently the judge, in summing up, did not direct the jury in relation to capacity and the jury convicted Kurtz who was sentenced to 30 months imprisonment.

The Appeal

Kurtz appealed her conviction to the Court of Appeal, arguing that the existence of an EPA was not sufficient of itself to render her guilty of the offence under s.44(1)(b) even if she had wilfully neglected her mother. The two main grounds of appeal were as follows:-

  1. Most of the powers conferred by an EPA cannot be exercised until an EPA is registered and s.44(1)(b) should be read as if it only applies to registered EPAs. Kurtz argued that she was not guilty of the offence as her mother’s EPA had never been registered with the OPG.
  2. 44(1)(b) should be read as requiring the prosecution to prove that the victim lacked capacity at the time of the offence, given that the stated purpose of the MCA (set out in the long title of the Act) was to ‘make new provision relating to persons who lack capacity’ . Kurtz argued that the donee of an EPA, who wilfully neglects the donor of that EPA, should not be guilty of the s.44(1)(b) offence if the donor still had capacity at the time of the neglect.

In response the Crown argued that:-

  1. The fact that Kurtz was the donee of an EPA was sufficient in itself to trigger a duty not to wilfully neglect the donor pursuant to s.44(1)(b) irrespective of whether the EPA was registered.
  2. 44(1)(b) should be read literally rather than implying a requirement that the donor lacks capacity.

The Court of Appeal judges, expressed sympathy for the trial judge who had been faced with the task of interpreting this statutory provision in the absence of Court of Appeal authority and against a background of the Appeal Court’s previous criticism of the drafting of the s.44(1)(a) offence, namely that Parliament had not identified the matter in respect of which a judgment of capacity must be made (the MCA makes clear that capacity is decision specific).

The first ground of appeal was dismissed, not least because an EPA can only be registered by a donee, and if the wording of the s.44(1)(b) offence were be read so as to require the EPA to be registered, then ‘the donee could avoid liability for the offence, no matter how much they ill-treated a non-capacitous donor, by not registering the EPA. This would hardly further the principal aim of the MCA 2005 to provide protection for those who are vulnerable through a lack of capacity.

The second ground of appeal was described by the Court of Appeal as one of pure statutory construction. The appeal judges carried out an extensive review of law commission reports and the draft legislation from which s.44 emerged, and concluded:-

In our judgement, all of this material shows that the discussion and debate which took place in relation to what became section 44 was only ever in the context of criminalising the wilful neglect or ill-treatment of those who lacked capacity. It was not suggested at any time that the offence should extend to those with capacity.

Consequently the appeal judges upheld Kurtz’s second ground of appeal and held that s.44(1)(b) must be construed so as to require the prosecution to prove the lack of capacity requirement as  an element of the offence ‘it is not sufficient for the prosecution merely to prove that the defendant was the donee of an LPA or EPA, and that the defendant ill-treated or wilfully neglected the donor.’

The Court of Appeal therefore found that the trial judge had misdirected the jury in a material regard by having failed to direct them that it was for the prosecution to prove that the victim lacked capacity.  Kurtz’s appeal was allowed.

Comment

Although the Court of Appeal’s statutory interpretation of the MCA s.44 offence undoubtedly reflects the intention of Parliament, it is clear than the appeal judges had reservations about the outcome for Kurtz:-

We can imagine cases in which the requirement to prove lack of capacity, or the defendant’s reasonable belief in lack of capacity, would be hard to establish. We can also envisage cases where it might be difficult to show that the defendant was in a caring role. This case was unlikely to have been one of them. The state of Cecily Kurtz in the months leading up to her death, and the conditions in which she spent the last weeks and months of her life, might well have been sufficient, without more, for the jury to have been satisfied that she lacked capacity. Also, given that the Appellant is a solicitor specialising in mental capacity matters, and given that she lived with her elderly and infirm parents, the prosecution would have had little difficulty showing that she had the care of her mother for the purposes of section 44(1)(a). We consider that had the prosecution proceeded on the indictment as originally drafted then the complications of this case might never have arisen.’

Cecily died as a consequence of appalling neglect. All of the evidence indicated that Kurtz had care of her mother and, at the very least, had a reasonable belief that her mother lacked capacity in matters of personal welfare. Had the prosecution not dropped the s.44(1)(a) charge in favour of what they no doubt thought would be an easier route to obtaining conviction under s.44(1)(b), Kurtz would in all likelihood have been safely convicted.

Going forwards, however, the Court of Appeal has now provided welcome and common sense clarification as to what the prosecution must prove in order to secure a conviction under MCA s.44(1)(b).  It is of course unfortunate that s.44 was so poorly drafted in the first place so as to require the Court of Appeal to effectively re-write the statutory provision.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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