Ill-treatment or wilful neglect of a person lacking capacity

Section 44 of the Mental Capacity Act 2005 created a criminal offence of ill-treatment or wilful neglect of a person lacking capacity or who is reasonably believed to lack capacity.

This is an important piece of legislation which is usually overlooked when considering safeguarding issues.

The criminal offence can be committed by:-

• Anyone responsible for that person’s care (including nurses in a care home context);
• Donees of a lasting power of attorney, or an enduring power of attorney;
• Deputies appointed by the Court of Protection.

The penalty for a person found guilty of this offence could be a fine or imprisonment, not exceeding five years, or both if an individual is found to have ill-treated or wilfully neglected an individual within their care.

It is therefore important for anyone who is suspicious of ill-treatment, or neglect, to notify the relevant authorities or to raise a safeguarding concern, as appropriate.  Ill treatment is likely to be present if a medical professional fails to do that which ought to have been done in the usual treatment of a patient.  This can be a difficult test to satisfy within a medical context and often individual cases will turn on their specific facts.  Neglect can be demonstrated if a care giver deliberately decides not to carry out a treatment that is within their power to perform.

All vulnerable people have a right to be treated with respect and to have their care needs met, both in the community or similarly if they are living in residential care.  They are entitled to expect that they are properly cared for and that appropriate procedures and protocols are in place to ensure that the implementation of any care is delivered with due care and attention.

As someone who works closely with many vulnerable and elderly clients and their families, I ensure that their interests are always put first. As a preventative measure, it is important to have clear lines of communication with other professionals or organisations supporting a vulnerable individual to assist in collective accountability and oversight.

Should you require assistance on this specific issue, please contact the Court of Protection team at Anthony Gold Solicitors.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.*