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
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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