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Powers of Attorney and ‘Lack of Capacity’ under the Mental Capacity Act 2005: A Narrowing of the s 44 Offence? R v Kurtz [2018] EWCA Crim 2743

The Mental Capacity Act (MCA) 2005 marked a turning point in the statutory rights of people who may lack capacity. The legislation sought to place the individual at the centre of decision-making and was viewed as having the potential to give people a voice and an opportunity to be heard. Section 44 of the legislation introduced a criminal offence of ‘ill treatment or neglect’ of a person who lacks capacity. The maximum sentence of five years’ imprisonment (or a fine or both) was intended to underly the seriousness of the offence, especially considering the vulnerability of potential victims. Interpreting s 44 has, however, proved a real challenge and the courts have acknowledged the difficulties which its drafting presents. The recent Court of Appeal (COA) decision in R v Kurtz is illustrative of the kind of issue that the statute has generated. The court was tasked with deciding whether proving a lack of capacity on the part of the victim is required when the donee of a power of attorney is charged with the offence under s 44(1)(b). This article considers Kurtz within the context of the MCA 2005 and notes three related COA decisions. It examines what impact Kurtz may have on future prosecutions brought under s 44(1)(b) and considers the future of the s 44 criminal charge more generally.