R v Hopkins; R v Priest
| Jurisdiction | England & Wales |
| Judgment Date | 18 May 2011 |
| Neutral Citation | [2011] EWCA Crim 1513 |
| Date | 18 May 2011 |
| Court | Court of Appeal (Criminal Division) |
[2011] EWCA Crim 1513
Court of Appeal, 201004021 C2 and 201004074 C2
Pitchford LJ, Treacy J, HHJ William Davis QC
K Lumsdon and B McElduff for H; W Cleaver and A Hamilton for P; A Feest for the prosecution.
Whether the defendants had been convicted properly of wilful neglect of a person lacking capacity; the elements of the offence.
AH owned and MP managed "The Briars", a care home for the elderly. They were charged with 16 counts of wilful neglect of residents lacking capacity, contrary to s44 Mental Capacity Act 2005, which
provides that if a person "has the care of a person � who lacks, or whom [the defendant] reasonably believes to lack, capacity", it is an offence wilfully to neglect that person. The basis of the prosecution was incompetence. They were convicted on some counts, but acquitted on others (some at the direction of the judge). On appeal, they argued that (i) the indictment was bad for duplicity as more than 1 offence was charged in each count, since more than 1 instance of neglect was relied on; (ii) the judge should have stopped the trial at the end of the prosecution case, including because the offence was bad at common law and under Art 7 ECHR for being too vague; (iii) the summing up was defective because the jury were not directed that they had be agreed on the factual basis of any guilty verdict, the law was not adequately explained and the evidence was not adequately summarised, in particular in relation to the division of responsibility between an owner and manager of a care home.
In relation to the elements of the offence, it was argued that s2 Mental Capacity Act 2005 indicated that incapacity was not an absolute condition and had to be assessed in relation to each specific issue, and accordingly the failure of s44 to specify in relation to what the person lacked capacity meant that the offence was incapable of proof. It was also argued that the provisions of s2(4) of the 2005 Act to the effect that lack of capacity had to be proved on the balance of probabilities could not apply to criminal proceedings.
Pitchford LJ:
1. This is an appeal against convictions returned on 29 June 2010 at Southampton Crown Court before HHJ Hope following a trial lasting some 2 months. Each of the convictions was for an offence of wilful neglect of persons lacking capacity, contrary to s44 of the Mental Capacity Act 2005. As we shall observe later in this judgment, this is not the first time that a conviction under s44 has been considered by this court.
2. Grounds of appeal can be summarised as follows.
(1) More than 1 offence was charged in each count of the indictment. Accordingly the indictment was bad for duplicity, rendering the convictions unsafe.
(2) The judge should have acceded to submissions of no case to answer made both at the close of the prosecution case and at the end of the evidence.
(3) The jury should have received a direction that they must be agreed as to the factual basis on which they returned any verdict of guilty.
(4) The summing-up was defective because the jury received an inadequate direction upon the law and an inadequate summary of the evidence.
3. We have been assisted by submissions from counsel who represented the parties at the trial: Miss Lumsdon and Mr McElduff on behalf of the appellant
Annette Hopkins, Mr Cleaver and Miss Hamilton on behalf of the appellant Margaret Priest, and Mr Feest and Mr Taylor on behalf of the respondent.
4. Before we turn to the grounds of appeal, we shall summarise the background and the evidence.
5. Mrs Annette Hopkins is aged 65. She was the effective owner of a care home called The Briars in Thorold Road, Bitterne Park, Southampton. She first opened the home, which was at that time her family home, in a single property in partnership with her husband in April 1987. Over the course of time, Mr and Mrs Hopkins acquired 2 adjoining properties and by 2007 it was registered with the Commission for Social Care Inspection ("CSCI") under the Care Standards Act 2000. It was licensed for the care of up to 34 residents. Mrs Hopkins was was registered as the responsible individual under the Act.
6. The second appellant Mrs Margaret Priest is now aged 57. Mrs Priest first worked in The Briars in its early years but left for personal reasons. She returned at Mrs Hopkins' invitation in the late 1990s. In about 2003, Mr and Mrs Hopkins wished to reduce their daily commitment to the care home and Mrs Priest was invited by them to become manager of the home. At first she was reluctant to take on this responsibility but, with encouragement, after about 6 months, she agreed.
7. In 2007 she was the registered manager of the home. Sadly, Mr Hopkins had died. Mrs Hopkins retained an office at The Briars in order to carry out her responsibilities concerned principally with administration and business. The registration permitted The Briars to provide personal care to those over the age of 65 and those suffering from dementia. This is to be distinguished from a registration which permits a nursing home to provide medical and nursing care. In the case of The Briars, medical and nursing care, if required, would be sought from general practitioners and district nurses. As a care home, The Briars was subject to the Care Home Regulations 2001 which set out the formal requirements for registration and for standards of staffing, training and care. Regulation 43 created offences of failing within 3 months to comply with notices informing the registered person of breaches of the Regulations. The offender was, under s25 of the Care Standards Act 2000, liable, on summary conviction, to a fine not exceeding level 4.
8. The enforcement authority is CSCI which performs annual or unannounced inspections. Following such inspections, CSCI may issue a notice requiring action to be taken or it may tender advice or both. Regulation 10 requires the registered provider (in this case Mrs Hopkins) and the registered manager (Mrs Priest) "to carry on or manage the care home (as the case may be) with sufficient care, competence and skill", having regard to its size, its statement of purpose and the needs of its service users.
9. By reg 26, where the registered provider is an individual but is not in day-to-day charge of the care home, she should visit once a month, interview staff, inspect the premises and prepare a written report of the conduct of the home. Mrs Hopkins was, as a matter of fact, occupying her office at The Briars either every day or almost every day although the running of the home was left largely in the hands of Mrs Priest. It is moot whether or not, for the purposes of reg 26, Mrs Hopkins was in day-to-day charge. The two ladies would however consult daily. Mrs Hopkins would also from time to time visit residents and speak to family visitors.
10. The home was inspected in the years 2005, 2006 and 2007 and, no doubt, in earlier years. CSCI applied care standards which would provide evidence whether a breach of a regulation had occurred. Although The Briars never received acclamation for all aspects of its care, no action was ever taken for breach of a notice. What seems to have occasioned more intense interest in The Briars was the death of a resident, Mr Ronald Reed. Mr Reed suffered a stroke in 1983 that left him with right-sided paralysis. In 2002, he suffered chronic renal failure, an aneurysm of the aorta and reduced circulation in his legs. He was particularly vulnerable to skin ulcers and suffered sometimes severe pain. He was admitted to The Briars in 2006 following hospital treatment and a short period in a nursing home. He required a double daily dose of slow-release morphine to control his pain.
11. The prosecution relied in opening its case to the jury upon Mr Reed's care as evidence of "systematic incompetence that was being shown by The Briars during this period".
12. That is to be compared with the evidence of Dr Townsend, the treating general practitioner. Dr Townsend's evidence, summarised at p104 of the judge's summing-up, was to the following effect. Dr Townsend's had known Mr Reed for well over a decade before his death in 2008. He was an independent gentleman who had recurring problems with his toes caused by poor circulation. On 10 July 2008 Dr Townsend was called to The Briars because Mr Reed was suffering an infected toe. He was visited by a hospital registrar the following day. On 28 July it was clear that the condition of Mr Reed's toes was deteriorating. Dr Townsend, in evidence, spoke of the concern that morphine was dangerous to the kidneys but, on the other hand, without morphine Mr Reed could not be turned without suffering intense pain. He continued that the relationship between his surgery and The Briars was a good one, better, he said, than with most care homes. Sadly, Mr Reed had to be admitted to hospital on 6 August. He died on 9 August 2008. It appears to have been his
death which brought the full weight of CSCI to bear upon The Briars.
13. Somewhat earlier in 2008 other concerns were being expressed. There had been a change of district nurse in 2007. The new nurse, District Nurse French, became concerned that the staff at The Briars had an inadequate understanding of pressure sores and their prevention and the need to seek nursing help in the early stages. She said she had several conversations with Mrs Priest about these problems in June 2008. On 30 June, a 1� hour conversation took place between Mrs Priest and District Nurse French during which District Nurse French reviewed the shortcomings in care which she had observed. These concerned, in particular, pressure relieving care, skin treatment, hydration and diet. Mrs Priest said that she would endeavour to improve practice.
14. On 6 August, District Nurse French spoke at length to Mr Birt, The Briars'...
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