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Friday, 5 August 2016

Mental Capacity Act 2005 - Section 44 Ill-treatment or neglect

Section 44 - Mental Capacity Act 2005

Mental Capacity Act 2005 - Section 44 Ill-treatment or neglect 

The Mental Capacity Act 2005 (The Act) introduced two new criminal offences:

  • ill treatment and wilful neglect of a person who lacks capacity to make relevant decisions. These offences are known as Section 44 of the Act and applies to anyone caring for a person who lacks capacity – this includes;

- family carers, healthcare and social care staff in hospital or care homes and those providing care in a person’s home

- an attorney appointed under an LPA or an EPA, or

- a deputy appointed for the person by the court. 

These people may be guilty of an offence if they ill-treat or wilfully neglect the person they care for or represent. Penalties will range from a fine to a sentence of imprisonment of up to five years – or both. 

Ill treatment and neglect are separate offences.  For a person to be found guilty of ill treatment, they must either: 

• have deliberately ill-treated the person, or

• be reckless in the way they were ill-treating the person or not. It does not matter whether the behaviour was likely to cause, or actually caused, harm or damage to the victim’s health.

The meaning of ‘wilful neglect’ varies depending on the circumstances but it usually means

that a person has deliberately failed to carry out an act they knew they had a duty to do.

For further guidance staff should read Chapter 14 of the MCA Code of Practice:

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