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Thursday, 30 March 2017
COURT OF PROTECTION ISSUES - Judge Anselm Eldergill
Below is the Presentation Handout by Professor Anselm Eldergill Judge, Court of Protection from our Mental Capacity Conference on 30 March 2017.
This handout is free to download
Human Rights in Everyday Life - Emma Jones
Emma Jones - Emma Jones is a partner in
the Human Rights team at law firm Leigh Day. She specialises in human rights
and negligence claims including human rights claims arising out of treatment
and care that individuals received in hospitals, care homes, detention centres
or education settings and the abuse of elderly individuals, false imprisonment
and assault claims and public law challenges.
In 2009 to 2012 she worked on
human rights claims arising from the Stafford Hospital scandal representing
over 200 alleged victims at Stafford hospital. Emma joined Leigh Day in 2000
and qualified as a solicitor in 2002. She joined the mental health charity Mind
in 2007 as their head of legal before returning to Leigh day in 2009.
Emma is
an accredited APIL litigator, a member of the Human Rights Lawyers Association,
Association of Personal Injury Lawyers, a member of the Child Abuse Special
Interest Group (SIG) and the NAS legal network group.
Offences charged of ill treatment and / or wilful neglect and reaching a first Magistrates Court hearing
The following document contains data obtained by Dave Sheppard, MHA & MCA Law who was a guest speaker at The Mental Capacity Conference a Decade On - 30th March 2017
The data pertains to the number of offences recorded in magistrates' courts on the CMS system in relation to Section 44 of the Mental Capacity Act
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.
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