The definition of ‘wilful’ amounts to intentional, reckless or reflects a ‘couldn’t care less attitude’. It was not felt necessary to define ‘wilful’ in this legislation as it had a widely accepted meaning, established by case law. There is an apprehension amongst doctors and nurses that the offence will incriminate them for everyday clinical and resource decisions and the allegation of a criminal act or behaviour will likely lead to an investigation, causing a lot of stress for the doctor.

The definition of wilful has been given the ordinary meaning inferred from the case law in the common law courts that will serve to interpret this legislation. The legal formulation was provided in the case of R v Sheppard [1981] AC 394 HL in which Lord Diplock held that:

‘a man “wilfully” fails to provide an adequate medical attention for a child if he either (a) deliberately does so, knowing that there is some risk that the child’s health may suffer unless he receives such attention or (b) does so because he does not care whether the child may be in need of medical treatment or not’ (p 403).

There is no liability if a person who has genuinely failed to appreciate that, for example, the other person needed medical care, through for example personal inadequacy, is not guilty of the offence of wilful ill-treatment/neglect.

The offence of wilful neglect is a conduct offence and the health care worker can be found guilty even if the intentional negligence did not cause any harm. The test of liability under CJCA 2015 is based on the same test as which arises when there is a breach of s 44(1) of the Mental Capacity Act 2005 (MCA 2005), which does not as one of its elements require an individual to suffer any harm (nor harm of a specific level of severity).

Sufficient certainty: proving causation

This provision covers much the same ground as the new offence under CJCA 2015 by prohibiting the ill treatment and deliberate neglect of those being cared for who lack mental capacity. As long as the accused reasonably believes that the victim lacks capacity at the time of the alleged offence, there will be an infringement of the Act even if the victim is well. The problem that arises in establishing liability in criminal law in medical negligence is of proving causation. Under MCA 2005, s 44 defines that there is wilful neglect or treatment:

‘(1)... if a person (D): (a) has the care of a person (‘P’) who lacks, or whom D reasonably believes to lack, capacity, (b) is the donee of a lasting power of attorney, or an enduring power of attorney (within the meaning of Schedule 4), created by P, or (c) is a deputy appointed by the court for P.
(2) D is guilty of an offence if he ill-treats or wilfully neglects P...’

However, s 44(1)(a) does not specify which decision the victim may lack, or be reasonably believed to lack in terms of the capacity to make a choice in his treatment. The flaw can be discerned from the issue of which decision is competent, for example, if the partial lack of learning disability renders a victim unable to decide where to reside but they are able to decide whether to undergo a simple medical procedure, would their ill treatment or wilful neglect in hospital amount to criminal liability? In those circumstances the perpetrator under CJCA 2015 would also be liable for wilful neglect.

Ambiguity in the drafting of s 44(1)

The issue is related to the framing of s 44 of MCA 2005 which has caused operational concerns. The decision and time-specific nature of mental assessment, along with the presumption of capacity are a defining feature of the Act, but appear to create problems when applied to the question of liability in this section. There seems to be an apparent lack of clarification on the face of the statute as to what, exactly, the person is alleged to lack capacity in s 44(1)(a) because the statute has not set a clear definition of sufficient certainty.

This has raised issues before the court where there has been a disconnection found between s 44 (referring to ‘persons without capacity’) and the elaborate definition sections (ss 2 and 3). Section 2(4) of MCA 2005 states that ‘in proceedings under this Act or any other enactment, any question whether the person lacks capacity within the meaning of the Act must be decided on the balance of probabilities’.

In R v Hopkins, R v Priest [2011] EWCA Crim 1513 Pitchford LJ stated:

‘Unconstrained by authority, this court would be minded to accept the submission that s 44(1)(a) … is so vague that it fails the test of sufficient certainty at common law and under art 7(1), ECHR’ [40].

He also dealt with the question of the interpretation of wilful neglect and made it clear that the court considered that, given the wording of s 44 of MCA 2005, the vital requirement is that each juror is certain that during the indictment the defendant was guilty of wilful neglect but it did not matter whether they were agreed upon each failure of care relied upon by the prosecution (paras 43-44).

The court held that s 2(4) established the question of capacity was to be determined on the balance of probability even in criminal cases. The prosecution must prove: (i) to the criminal standard that the defendant ill treated or wilfully neglected a person in his care; and (ii) that on a balance of probability that person at the material time lacked capacity (para 45).

Where the defendants were care professionals whose primary responsibility was supervision and management:

‘The jury needed to ask in respect of each [alleged failing on their part] (1) are we sure lack of care is proved?; (2) if so, are we sure that it amounted to neglect?; (3) if so, are we sure either (i) that the defendant knew of the lack of care and deliberately or recklessly neglected to act, or (ii) that the defendant was unaware of the lack of care and deliberately or recklessly closed her mind to the obvious?’ [58]

For judicial consideration

Despite this ruling that s 44 is ‘badly drafted’ it remains on the statute books and the decision has raised two questions which have yet to be the subject of judicial consideration. These are, in particular, the emphasis upon the need to identify what was clinically required in the particular circumstances of the case, and for an offence whose purpose is to ensure that those caring for vulnerable adults are held accountable when the care they provide falls below an acceptable standard of proper treatment. It has required the adopting of a robust and purposive construction of the statute to address the ambiguity and that has exposed the statute as ambiguous and brings uncertainty into the law.

In R v Rimmington (Appellant) (On Appeal from the Court of Appeal (Criminal Division)) [2005] UKHL 63, Lord Bingham held:

‘There are two guiding principles: no one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done’ [33].

His Lordship stated that ‘it was not open to the House in resolving these appeals to conclude that the law no longer exists’ [34].

The difference between liability that arises in proving with sufficient certainty is that if someone can be proved to have acted in a manner that calls for a criminal prosecution over and above a regulatory prosecution then they will have to contend with a broad-brush approach adopted in the case of Hopkins, which ultimately resulted, as the Court of Appeal found, in an unfair trial. The CJCA 2015 with its two sections that confer liability for wilful conduct stretches the judges to rule outside their framework to interpret legislation and review legislation for the implementation of its purpose.

Contributor Zia Akhtar LLB (Lon), LLM (Lon), Gray’s Inn