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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Ligaya Nursing v R [2012] EWCA Crim 2521 (30 November 2012) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2012/2521.html Cite as: [2013] 1 Cr App R 19, (2013) 129 BMLR 205, [2013] 1 WLR 1031, [2013] 1 All ER 1139, [2012] EWCA Crim 2521, [2013] MHLR 421, [2012] WLR(D) 360 |
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ON APPEAL FROM SOUTHAMPTON CROWN COURT
His Honour Judge Ralls QC
T2010/100594
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE SIMON
and
MR JUSTICE WILKIE
____________________
LIGAYA NURSING |
Appellant |
|
- and - |
||
R |
Respondent |
____________________
Edward Phillips (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 14th November 2012
____________________
Crown Copyright ©
The Lord Chief Justice of England and Wales:
"… (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 havecapacity
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.
"…
(2) a person must be assumed to havecapacity
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".
"(1) for the purposes of this Act, a person lackscapacity
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 ofcapacity
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 hiscapacity
."
"(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) touse
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 … ".
"… there has been a whole sea change in the attitude of the law to persons whosemental 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 thatcapacity
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".
"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 theMental Capacity
Act 2005 is so vague that it failed the test of sufficient certainty at common law and under Article 7.1".