Where a defendant who had the care of someone who lacked capacity was charged with an offence of wilful neglect it was necessary for the prosecution to prove that the negligence was wilful in that either the defendant was aware of the consequences of the negligence or could not care less as to the consequences.

The Court of Appeal, Criminal Division, so held when allowing the appeals of Maxine Turbill and Gail Julie Broadway against their convictions on 17 November 2011 at Worcester Crown Court before Judge Juckes QC and a jury, of ill-treatment of a person who lacked capacity, contrary to section 44 of the Mental Capacity Act 2005.

The Mental Capacity Act 2005 provides: “44. Ill-treatment or neglect (1) Subsection (2) applies if a person (“D”) — (a) has the care of a person (“P”) who lacks, or whom D reasonably believes to lack, capacity, … (2) D is guilty of an offence if he ill-treats or wilfully neglects P.”

HALLETT LJ, giving the judgment of the court, said that the defendants had been working in a care home. The second defendant, the lead carer, asked another carer to put an elderly man (M) to bed one evening. Later in the evening the first defendant arrived but she did not check on M at all during the night although her notes recorded that he had slept well. At 8 a m another carer found M on the floor beside his bed; he had soiled himself and was in pain and his condition suggested that he had never been put to bed. The defendants were each convicted of wilfully neglecting M. The defendants appealed against conviction on the grounds that the judge’s directions to the jury had not made sufficiently clear what elements of the offence under section 44 of the 2005 amounted to wilful neglect. The case was not one where any set decision was taken to neglect M. The judge directed the jury that M was obviously neglected but the question was whether that neglect was wilful, i e, either deliberate or gross carelessness—what the prosecution called a “couldn’t care less attitude”. The judge used the expression “reckless disregard” repeatedly. In R v Sheppard [1981] AC 394 the expression wilful neglect was considered in the context of an offence under section 1 of the Children and Young Persons Act 1933. Lord Keith of Kinkel said, at p 418: “[Wilful] is a word which ordinarily carries a pejorative sense. …The primary meaning of ‘wilful’ is ‘deliberate.’ …As a matter of general principle, recklessness is to be equiparated with deliberation. A parent who fails to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child's welfare. He too is guilty of an offence. But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty.” Their Lordships were concerned that the judge’s directions appeared to equate negligence with ill-treatment but negligence was not enough; the negligence had to be wilful and therefore the prosecution had to prove either that each defendant was aware of the consequences of negligence or could not care less as to the consequences. It was that additional subjective element which was missing from the judge’s directions. The judge had used the term “carelessness” as it if meant the same as “couldn’t care less”. There were therefore very grave concerns that the way the judge had used various expressions to describe the offence had watered down his directions. The case cried out for succinct written directions prepared in advance. There was no option but to allow the appeal, quash the conviction and order a retrial.