Case No: 2012/03530D1
Neutral Citation Number: [2012] EWCA Crim 2521
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM SOUTHAMPTON CROWN COURT
His Honour Judge Ralls QC
T2010/100594
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 30/11/2012
Before :

THE LORD CHIEF JUSTICE OF ENGLAND AND WALES
MR JUSTICE SIMON
and
MR JUSTICE WILKIE
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Between :

	LIGAYA NURSING	Appellant	
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	R	Respondent	

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Sarah F Jones (instructed by Peach Grey & Co) for the Appellant
Edward Phillips (instructed by Crown Prosecution Service) for the Respondent

Hearing date: 14th November 2012
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Judgment
The Lord Chief Justice of England and Wales: 
1.	This is an appeal against conviction by Ligaya Nursing who, on 15 May 2012 in the Crown Court at Southampton, before His Honour Judge Ralls and a jury, was convicted of neglect of a person who lacked capacity, contrary to s.44 of the Mental Capacity Act 2005.  
2.	The appellant was a trained mental health nurse with a general nursing qualification, and for many years she and her husband ran a care home until it closed in the early 1990s.  
3.	Miss Peggy Gill was born in 1931.  A lady with a significant learning disability, she was resident in the care home run by the Nursings from 1987 until it closed.  She then went to live at the property owned by the Nursings at 68 Portsmouth Road, Woolston where some of the rooms were rented out.  Miss Gill occupied an annex at the top of the house.  While she lived there she was plainly in need of care. This was provided by the appellant.  Miss Gill’s learning disabilities meant that her brain functioned at the level of a child between 5 and 9 years old, or on a different view, at the level of about a 7 year old child.
4.	It is perhaps important at the outset to underline that Miss Gill was never in a vegetative state, and she was certainly able to make simple choices, for example, about what she wished to wear. At the same time she did not understand the need to keep her clothes clean, and although she could, for example, bath herself, she needed encouragement to wash regularly.  Without assistance she would inevitably neglect herself.  In effect someone was needed to prompt her to do the things that she could manage for herself and to carry out the tasks which she could not.  She had a number of problems with communication, but she was well able to convey her wishes and preferences.  Special measures were needed for her evidence to be given at trial through an intermediary, but it emerged that for some periods during her evidence, at any rate, she was able to speak for herself.
5.	In her evidence, the appellant accepted that it was essential that there should be someone constantly available to care for Miss Gill, 24 hours, 7 days a week because she could not manage to live an independent life, and needed support about how and when to take her medication. She was responsible for seeing that Miss Gill’s personal needs were taken care of, and asserted that she recognised her specific needs.  In support of the prosecution, the Crown relied on a course of conduct said to constitute neglect which took several different forms.  Thus, the lack of adequate care included inattention to Miss Gill’s personal hygiene and failing to maintain her rooms in a clean condition and replace dirty bed linen.  It also extended to failing to administer medication correctly and at the right time, or to the provision of food and a balanced diet and making sure that Miss Gill’s personal habits did not create problems with food hygiene.  In relation to many of these issues the appellant maintained that she would try and help Miss Gill who would sometimes refuse to accept her help, and in circumstances like these, she felt it was wrong to override her wishes.  By way of practical example, Miss Gill expressed a strong dislike for having her toe nails cut until the point they became painful.
6.	On 30th May 2009 the police attended the premises where Miss Gill was living.  The Nursings were on holiday.  They had made arrangements for the care of Miss Gill, but she had left the premises after a row had taken place between one of the replacement carers and another tenant, Stephen Miller, who gave evidence in support of the prosecution case.  When first asked Miss Gill expressed herself happy to stay where she was, but she eventually decided to move into a different home.  This was an indication of her ability to convey her preferences and wishes, and to some extent at any rate, make her own decisions.  By the time she left the premises she was not clean.  Her clothes were dirty.  She had a very strong smell.  Her bra was broken and very dirty, so was her underwear.  She was wearing two pairs of pants which were both very dirty.  Her toe nails were so long that they twisted and cut into her toes causing considerable pain.  
7.	The evidence of the police officers who visited the house can be briefly summarised.  One described Miss Gill’s bedroom as depressing and unclean, but had the impression that her immediate welfare was satisfactory.  Another thought that the room was filthy and the shower was not clean, and in his assessment Miss Gill obviously had mental health problems.  However when he asked her if she wanted to leave, she responded that she did not want to do so.  
8.	At the close of the case for the prosecution it was submitted that there was no case for the appellant to answer.  The submission was rightly rejected. However the argument helped to inform the directions given to the jury by Judge Ralls.  In effect, Miss Scott, who appeared for the appellant here and below, repeated her submissions in support of the appeal against conviction.  She contended that the provisions in the Mental Capacity Act 2005 were complex, and in the context of the criminal offence created in s.44 of the Act, irremediably uncertain in their ambit.  
9.	Section 44 of the 2005 Act provides:
“… (2) D is guilty of an offence if he ill-treats or wilfully neglects P
(1)	sub-section (2) applies if D
(a) has the care of a person who lacks, or whom D reasonably believes to lack, capacity …
(2) a person must be presumed to have capacity unless it is established that he lacks capacity.”
Ill-treatment and wilful neglect within s.44 are distinct offences, and in effect replicate the provisions designed for the protection of children in s.1 of the Children and Young Person’s Act 1931.  Neglect, of itself, is not enough to establish the offence.  The neglect must be indeed “wilful” (see Sheppard [1981] AC 394), assessed in the context of an offence created in a statutory context in which “capacity” and “lack of capacity” are defined.
10.	Section 1 of the Act provides:
“… 
(2)	a person must be assumed to have capacity unless it is established that he lacks capacity”.
.
(3)	a person is not to be treated as unable to make a decision unless all practicable steps to help him do so have been taken without success.
(4)	a person is not to be treated as unable to make a decision merely because he makes an unwise decision.
      …
(5)	before the act is done or that the decision is made,              regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action”.
11.	Section 2 identifies people who, for the purposes of the legislation, lack capacity.  It provides:
“(1) for the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
(2) …
(3) a lack of capacity cannot be established merely by reference to –
(a) a person’s age or appearance, or
(b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about his capacity.”
12.	Section 3 continues:
“(1) for the purposes of s.2, a person is unable to make a decision for himself if he is unable –
(a) to understand the information relevant to the decision
(b) to retain that information,
(c) to use or weigh that information as part of the process of making the decision, or
(d) to communicate his decision (whether by talking, using sign language or any other means)
(2) a person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances …
(3) the fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.
(4) the information relevant to a decision includes information about the reasonably foreseeable consequences of –
(a) deciding one way or another, or
(b) failing to make the decision … ”.
13.	In the context of the criminal offence created by s.44 of the Act, this is difficult legislation.  Lack of capacity in s.44 is defined by reference to s.2, and this definition is supplemented in s.3 which provides a complicated series of tests which identify the circumstances in which an individual is to be found to be unable to make decisions for himself.  The overall purpose of the statutory regime has been explained by Her Honour Judge Hazel Marshall QC, sitting as a judge of the Court of Protection in Re S and Another (protected persons) [2010] 1 WLR 1082 at para. 51ff.  We agree with her analysis that:
“… there has been a whole sea change in the attitude of the law to persons whose mental capacity is impaired.  The former approach was based on a stark division between those who had capacity to manage their own affairs, and those who did not.  The former took their own decisions for better or worse, and the latter fell under a regime in which decisions were made for them, perhaps with a generous, and in some cases patronising, token nod to their feelings by asking them what they wanted, and then deciding what none the less was objectively “best” for them. … the statute now embodies the recognition that it is the basic right of any adult to be free to take and implement decisions affecting his own life and living, and that a person who lacks mental capacity should not be deprived of that right except in so far as is absolutely necessary in his best interests.”
The judge went on to identify the embodiment in the statute of the singular feature:
“… official recognition that capacity is not a blunt “all or nothing” condition, but is more complex, and is to be treated as being issue-specific.  A person may not have sufficient capacity to be able to make complex, refined or major decisions but may still have the capacity to make simpler or less momentous ones, or to hold genuine views as to what he wants to be the outcome of more complex decisions or situations”.
14.	This feature provided an apposite summary of the situation in which Miss Gill found herself, and the ambit of the statutory regime in which those responsible for her care were required to act.  No one doubts that the purpose of s.44 of the Act is to provide those in need of care with protection against ill-treatment or wilful neglect by those responsible for caring for them.  But, lack of capacity as defined by reference to s.2, and supplemented in s.3, provides a complicated series of tests which purport to define the circumstances in which an individual is to be treated as if she is unable to make decisions for herself, and of course, when she is not.
15.	In her submissions on behalf of the appellant, Miss Jones pointed out that Miss Gill was presumed to have capacity to make her own decisions, whether they are wise or not, and if her wishes were not followed then, even if she lacks capacity generally, they should only be disregarded in as limited a way as possible so as not to interfere with her freedom of choice.  As defined in s.2 and s.3 “capacity” or the absence of capacity does not specify any specific criteria.  Rather, at any rate in the context of the criminal offence of wilful neglect, someone in the position of the appellant appears to be required not to act in relation to any aspect of care until satisfied that the person being cared for lacks capacity in the specific areas then under consideration, and even then only to act with the minimum interference with her autonomy.   In the absence of any evidence of pain or suffering this would preclude any physical interference or bodily handling at all.  In essence, Miss Jones contended that in an Act which covered both criminal and civil proceedings relating to those who lacked capacity, yet without making any apparent distinction between them in that context, the absence of capacity in respect of one area of decision could not be used to found an assessment of general lack of capacity at the same time, or indeed for the future.  
16.	In the present context for example, it did not follow from Miss Gill’s lack of capacity to make her own decisions in relation to her financial arrangements that she simultaneously lacked the capacity to make decisions about her ordinary living arrangements and her personal hygiene.  Thus she was able to indicate a clear preference about where she wished to live.  More important, if the appellant genuinely believed that Miss Gill did not lack capacity in relation to matters such as whether or not her toe nails should be cut, or whether or not her room should be kept clean and tidy, then the appellant had no right to interfere with Miss Gill’s decisions.  Even if she believed that her decisions were unwise, she was under a duty only to interfere with Miss Gill’s rights to the absolute minimum level.  According to this argument, there is therefore profound uncertainty about the matters to which capacity is to relate, which is further complicated by the presumption of capacity set out in s.1.  Rhetorically, Miss Jones asked, by whom and how is capacity to be established for it to be proper for criminal liability to flow from a failure by the defendant to act to an extent which amounts to neglect? And how is the defendant who comes to a different conclusion about a person’s capacity to protect herself from potential liability on the one hand for an invasion of autonomy and on the other against a potential prosecution for neglect?  This is all much too uncertain.  Indeed she relies on the observation in R v Hopkins and Priest [2011] EWCA Crim. 1513:
“Unconstrained by authority this court would be minded to accept the submission made on behalf of the appellants.  Section 44(1)(a), read together with s.2(1) of the Mental Capacity Act 2005 is so vague that it failed the test of sufficient certainty at common law and under Article 7.1”.
17.	We acknowledge the force of these submissions. They underline some of the difficulties facing those with caring responsibilities.  Although the principles governing offences of ill-treatment and wilful neglect are identical, cases involving alleged ill-treatment do not appear to raise quite the same difficulties as cases of alleged wilful neglect, perhaps not least because evidence of ill-treatment is generally less elusive than evidence purporting to establish wilful neglect.   
18.	The purpose of s.44 of the Act is clear.  Those who are in need of care are entitled to protection against ill-treatment or wilful neglect. The question whether they have been so neglected must be examined in the context of the statutory provisions which provide that, to the greatest extent possible, their autonomy should be respected.  The evidential difficulties which may arise when this offence is charged do not make it legally uncertain within the principles in Mirsa [2005] 1 Cr. App. R 328 and R v Rimmington: R v Goldstein [2006] 1 AC 459.  On analysis, the offence created by s.44 is not vague.  It makes it an offence for an individual responsible for the care of someone who lacks the capacity to care for himself to ill-treat or wilfully to neglect that person.  Those in care who still enjoy some level of capacity for making their own decisions are entitled to be protected from wilful neglect which impacts on the areas of their lives over which they lack capacity. However s.44 did not create an absolute offence.  Therefore, actions or omissions, or a combination of both, which reflect or are believed to reflect the protected autonomy of the individual needing care do not constitute wilful neglect.  Within these clear principles, the issue in an individual prosecution is fact specific.
19.	Having, with the advantage of Miss Jones’ submissions, examined the elements of this offence in its overall statutory context, it emerged that, notwithstanding the care taken by Judge Ralls in the summing up, there was one significant respect in which the jury was misdirected.  Judge Ralls is not open to informed criticism: his summing up accurately followed the submissions made to him, and at the time neither advocate had addressed the full ambit of the statutory framework as it impacted on this trial. 
20.	The judge explained the autonomy principle.  In that context he directed the jury that if the defendant was or may have been motivated by this consideration, then any neglect which was proved “would not … necessarily have been proved to be wilful”.  This direction was not criticised by Miss Jones in her skeleton argument or in her oral submissions until their very end.  As it seems to us, if the jury were to conclude that the defendant may have been motivated by the wish or sense of obligation to respect Miss Gill’s autonomy any area of apparent neglect so motivated would not be wilful for the purposes of this offence. It follows that there was a misdirection which in our view undermines the safety of the conviction.  The appeal against conviction must therefore be allowed.
21.	In these circumstances a ground of appeal based on the judge’s ruling that the witness, Stephen Miller, could not be cross-examined about two incidents said to constitute bad character evidence does not require to be addressed.