Powers of Attorney and ‘Lack of Capacity’ under the Mental Capacity Act 2005: A Narrowing of the s 44 Offence? R v Kurtz [2018] EWCA Crim 2743
| Author | John Taggart |
| DOI | 10.1177/0022018319883146 |
| Published date | 01 February 2020 |
| Date | 01 February 2020 |
| Subject Matter | Comment |
Comment
Powers of Attorney and ‘Lack
of Capacity’ under the Mental
Capacity Act 2005:
A Narrowing of the s 44
Offence? RvKurtz [2018]
EWCA Crim 2743
John Taggart
London School of Economics, UK
Abstract
The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people
who may lack capacity. The legislation sought to place the individual at the centre of decision-
making and was viewed as having the potential to give people a voice and an opportunity to be
heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of
a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or
both) was intended to underly the seriousness of the offence, especially considering the vul-
nerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the
courts have acknowledged the difficulties which its drafting presents. The recent Court of
Appeal (COA) decision in RvKurtz is illustrative of the kind of issue that the statute has
generated. The court was tasked with deciding whether proving a lack of capacity on the part of
the victim is required when the donee of a power of attorney is charged with the offence under
s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three
related COA decisions. It examines what impact Kurtz may have on future prosecutions
brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.
Keywords
Mental capacity, lack of capacity, power of attorney
Corresponding author:
John Taggart, Department of Law, London School of Economics, Houghton Street, London, WC2A 2AE, UK.
E-mail: john.taggart@city.ac.uk
The Journal of Criminal Law
2020, Vol. 84(1) 74–82
ªThe Author(s) 2019
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DOI: 10.1177/0022018319883146
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