Imagine a person came into your home uninvited, threw cold water over you to get you out of bed, forcibly gave you a cold shower, locked you in your room and tied your arms to a wheelchair so that you couldn’t move them, or out of the chair, for 16 hours. Would you consider that you had been the victim of a crime? Battery and false imprisonment, perhaps? Imagine somebody removed you from your home without any lawful authority, and you were locked in another place away from those you loved, unable to escape. Have you been kidnapped? Should somebody call the police?
These things happen in care, they aren’t common – but they aren’t especially infrequent either. We know they happen because they are detailed in regulatory reports, in civil law proceedings. But what struck me recently was how rarely the police are involved in these types of situations, and how rarely criminal charges are brought. I began thinking about this because I’ve been looking into the background of the criminal offence of ill-treatment or wilful neglect of a person who lacks capacity, introduced by s44 Mental Capacity Act 2005 (MCA), itself modelled on the offence under s127 Mental Health Act 1983 (MHA). Section 44 MCA is not unproblematic from the perspective of the Convention on the Rights of Persons with Disabilities (CRPD), where there is a general preference for promoting and protecting disabled peoples’ rights through making mainstream mechanisms more accessible and inclusive, rather than developing separate systems for rights protection (e.g. Inclusion Europe, European Disability Forum). Even setting aside the complex and contested questions as to whether the label ‘incapacity’ is even compatible with the CRPD, the question is: why is an additional offence of ill-treatment or neglect of a person who lacks capacity needed, rather than making mainstream criminal offences more ‘inclusive’ and ‘accessible’ to disabled victims? I’m no criminal lawyer, but the more I looked into this, the harder it seemed to be to explain from any legal perspective why mainstream offences could not be used, and are so rarely investigated, in the context of care.
Criminal law contains several ‘offences against the person’ which could theoretically be engaged by many common occurrences in care. Here are some examples, with definitions taken from the Crown Prosecution Service’s legal guidance:
- Common assault: broken down into assault – ‘when a person intentionally or recklessly causes another to apprehend the immediate infliction of unlawful force’; and battery – ‘when a person intentionally or recklessly applies unlawful force to another’. Herring describes Battery as ‘invasion of personal space’. Common assault charges can be brought even when ‘no injury or injuries which are not serious occur.’ Common assault is a summary offence (ie. no right to jury trial), and consequently must be brought within 6 months of the offence, and carries a maximum penalty of 6 months in prison. (s39 Criminal Justice Act 1988).
- Assault occasioning Actual Bodily Harm (ABH) – distinguished from common assault by the degree of injury, which must be more than ‘transient or trifling’. Injuries can be psychiatric as well as physical, but the prosecution will need to provide medical evidence of this (R v Fook, 1994). The CPS guidance says, however: ‘There may be exceptional cases where the injuries suffered by a victim are not serious and would usually amount to Common Assault but due to the presence of significant aggravating features (alone or in combination), they could more appropriately be charged as ABH contrary to section 47 of the Offences Against the Person Act 1861. This would only be where a sentence clearly in excess of six months’ imprisonment ought to be available, having regard to the significant aggravating features.’ Elsewhere CPS guidance states that the vulnerability of a victim may be an aggravating feature, as might hostility towards a person based on disability. ABH is an ‘either way’ offence (ie. can be heard by a magistrate or in the crown court, depending upon the severity of the offence and whether the defendant elects for a jury trial), and carries a maximum penalty of five years imprisonment upon indictment. (s47 Offences Against the Person Act 1890).
- Kidnap – is a common law offence defined by the CPS as ‘the taking or carrying away of one person by another… by force or fraud… without the consent of the person so taken or carried away; and… without lawful excuse.’ CPS guidance goes on to say that ‘Regardless of the severity of any act that follow… kidnapping is such a grave offence that it will be usual to reflect it with a count in the indictment.’
- False imprisonment – is also a common law offence, defined by the CPS as ‘the unlawful and intentional or reckless detention of the victim’. The CPS say that where the detention is for the purpose of another indictable offence, often a prosecution for that offence will be sufficient, but ‘Where the detention was for a period of several hours, or days, then it will be proper to reflect the unlawful detention with a count for false imprisonment.’
- Aggravated trespass – (ok, not an offence against the person, but bear with me here) is a controversial new offence which was introduced under s68 Criminal Justice Act 1994 widely regarded as targeting protestors (e.g. the prosecutions of UK Uncut activists for their peaceful Fortnum and Mason protest). Aggravated trespass consists of trespassing on land and ‘in relation to any lawful activity which persons are engaging in or are about to engage in… intimidating those persons or any of them so as to deter them or any of them from engaging in that activity… obstructing that activity… [or] disrupting that activity’. It used to specify that the trespass must take place on land in open air, but this requirement was removed by the Anti-Social Behaviour Act 2003 . Aggravated trespass is a summary offence with a maximum penalty of three months imprisonment.
Whether or not a person could be held as committing the offences described above will often turn on whether or not the person they are doing these things to has consented. There’s some technical stuff about whether the absence of consent is part of the actus reus (i.e. the act that constitutes the offence itself) or whether consent forms a defence to acts which in principle constitute a legal wrong – I’ll discuss these in more detail when I talk about evidence below. But my point, for now, is this: in the course of caregiving, carers will very often ‘invade’ the personal space of those they care for or cause a person to apprehend that they will; sometimes – as regular readers of this blog will know – care professionals and care workers ‘detain’ a person and in order to do so they may have to ‘take or carry them away’. Domiciliary care workers work on premises owned by the care service users, and will sometimes interfere with their lawful activities. What prevents these acts from being assault, battery, kidnap, false imprisonment or possibly even aggravated trespass? The ordinary answer would be consent; but where a person is being restrained, removed, contained against their will, consent could not be relied upon – capable or no; even where a person is compliant, their capacity to consent may be called into question. In the landmark ‘best interests’ case Re F (1990) the House of Lords held that where a person lacked the mental capacity to give or refuse consent, then the principle of necessity means that those that caring for them do no wrong if they act in their best interests. Necessity as a defence isn’t discussed much in the criminal law textbooks; in their work on Offences Against the Person the Law Commission described this common law defence as ‘of uncertain nature and extent’. Today, happily, the MCA is pretty clear that s5 and s6 constitute alternatives to defences of consent in civil and criminal law. In short, where caregivers engage in acts which might be assault, battery, trespass etc, where consent is not available as a defence, they can invoke the ‘general defence’ of the MCA in their protection.
We have come a long way in introducing more rigorous standards for interferences with personal autonomy since the early ‘best interests’ case law. Whereas Re F required only that those interfering with personal autonomy comply with a minimal Bolam standard of ‘best interests’ in order to invoke the general defence, the common law – and now the MCA – has introduced a much more rigorous set of procedures to be followed in order to establish that a person lacks capacity and the interference is in their best interests. Recently, in the civil law case ZH (A protected party by GH, his litigation friend) v The Commissioner of Police for the Metropolis  the court found that the MCA had superseded the old common law doctrine of necessity which it codified. The effect of this in civil law proceedings will be that defendants must show they have complied properly with the MCA rather than relying upon common law ‘necessity’ as a defence; the same may very well be true in criminal proceedings. For hypothetical defendants, this means they must have taken ‘reasonable steps to establish whether P lacks capacity in relation to the matter in question’ (applying the test in s3 MCA, with reference to s1 and s2); the interference must be the least restrictive of the person’s rights and freedoms, and defendants must ‘reasonably believe’ that the person lacks capacity in relation to the matter in question and that the interference is in their best interests. These are ‘subjective’ standards, but where the use, or threat of use, of force or restrictions on liberty are involved (as they would be for all the offences just listed) s6 adds additional ‘objective’ requirements that the interference must be a proportionate response to the likelihood of the person suffering harm, the severity of that harm, and the person must ‘reasonably believe’ that the act is necessary to prevent them from coming to harm.
So far so good, and in many cases this won’t be a problem. But we know – from case law, from regulatory reports – that ordinary carers and care professionals often exceed the ‘authority’ given to them by the general defence under the MCA. We know of plenty of common law cases where restraint or seclusion was not in a person’s best interests (C v A Local Authority), and care regulators have several times reported concerns about restraint being used ‘inappropriately’ and ‘putting people at risk of abuse (e.g. CQC’s Learning disability services inspection programme, 2012; CQC’s Mental Health Act reports; CSCI’s ‘Risks, rights, restraints’ study of 2007). We know of civil law cases where care professionals have unlawfully taken people away from their families (e.g. G v E, 2010), and where people have been unlawfully detained (e.g. G v E, 2010; Neary v Hillingdon, 2011). We know that in some supported living services – nominally, at least, people’s own homes – care staff let themselves in without seeking consent, and then seek to interfere with people’s lawful activities within those homes by imposing their own rules and regulations (Fyson et al, 2007). There is nothing ‘everyday’ about these interferences with personal autonomy for non-disabled people, and in many cases the MCA defence in lieu of consent will not apply; so are these not only civil law wrongs, but also crimes?
As I said at the outset, I am not a criminal lawyer. I may be missing something really obvious; and I know there are all kinds of evidential and public interest issues around prosecutions which I’ll come on to discuss shortly. But for now I just want to pose the question: wouldn’t these interferences, for non-disabled people, by non-carers, in non-care settings, be considered potential criminal offences? And if so, what is it about disability and care that makes these acts any different? Because I think we do see them as different, but if we start to probe too deeply it’s definitely hard to justify. As an example of care somehow making these acts ‘different’, consider these findings of the police in their report (‘Operation Apple’) into abuse of adults with learning disabilities in services Cornwall, none of which were considered to be crimes yet they were castigated by regulatory inspectors:
- The regulatory report states ‘One person spent 16 hours a day tied to their bed or wheelchair, for what staff wrongly believed was for that person’s own protection’, but the police report states ‘he was restrained to prevent self-harm by strapping both hands to his wheelchair or his bed… no criminal offences were identified’ (p17).
- The regulatory report describes ‘giving cold showers’ as an example of abuse; the police report states: ‘[It is alleged that] he was given a cold shower by unknown member of staff… No criminal offences were identified.’
- The police report also describes an allegation of abuse whereby ‘water [was] thrown over her by an unknown male staff member to get her out of bed, she was forcibly put into a quiet room, threatened to have her leave stopped and bullied by a member of staff’. The police report makes no comment as to whether or not these acts constituted a crime, but notes that the member of staff in question ‘had become disillusioned within his role, and his frustration may have been taken out on the clients within Budock Hospital resulting in the above and one other complaints… he was well supervised with good line manager support, and any complaints were dealt with swiftly and robustly’.
- One patient in Budock was described as being ‘clipped around the ear’, as having sustained a swollen lip and head laceration and being kneed in the groin whilst being restrained by staff, and suffering various other injuries including a fractured skull, yet ‘the CPS advise was not to conduct any further investigations relating the allegations made regarding (…E…) and no further action was to be taken’.
- The regulatory report was also extremely critical of the widespread use of locked doors in both hospital and supported living services, making safeguarding referrals on these grounds and complaining that ‘Staff seemed unaware that it was unlawful to detain people against their will’. The police report found no crimes associated with the use of locked doors to prevent people from leaving buildings, or even moving freely within their own homes, apparently uncritically accepting staff’s assertions that this was ‘to prevent any of the service users from wandering into the street where they would have had no concept of personal safety’ although the CSCI had serious concerns about this claim.
The report does outline that there were some other possible criminal offences, but that the limitation period had expired or there were problems collecting reliable evidence,. Section 44 MCA was not in force at the time of the alleged acts, but although its Mental Health Act equivalent (s127 MHA) was discussed it was never considered in relation to any specific acts (although several patients were detained under the MHA). Now, it doesn’t seem to be the case that the police have identified possible crimes but ascertained that care staff could invoke defences of ‘necessity’ or under the MCA – the report never once mentions ‘necessity’ or ‘best interests’. If the police had identified these as possible crimes and inquired as to their necessity, the regulatory report which castigated these acts as abusive would have certainly presented problems for invoking a ‘best interests’ defence (the MCA had not come into force at the time the alleged acts took place, but the common law defence was established in Re F in 1990).
Readers’ minds will probably have flicked forwards to the successful recent prosecution of care staff for ill-treatment or wilful neglect of residents of Winterbourne View under s127 Mental Health Act 1983 (according to Community Care, the only publication which reported which Act! It’d be interesting to know why s44 MCA wasn’t used, but I digress…). Both s127 MHA and s44 MCA now carry a maximum penalty, upon indictment, of 5 years imprisonment – and we shall find out about sentencing of the Winterbourne View carers in a few weeks’ time. The CPS have asked the judge to consider these as disability hate crimes (see section 146 of the Criminal Justice Act 2003), which could lead to enhanced sentences. It is undeniably right that these people were prosecuted. I suspect many will wonder why police and prosecutors in Devon and Cornwall did not attempt prosecutions under s127 MHA (s44 MCA was not in force at the time of the alleged abuses, but several of the abuse victims were detained under the MHA). But the interesting question, to me, is why we need either s127 MHA or s44 MCA at all, when we already have an array of mainstream ‘offences against the person’ which, it seems to me, could have covered many of the following acts which we know have been prosecuted under these acts.
- A night manager of a care home ‘shoved’ and ‘pushed’ a man, 85, and pulled a woman, 81, by her ankles – the defence called this ‘old-school nursing’ and the judge accepted he ‘meant no harm’. Defendant was sentenced to 50 hours’ of unpaid work. (BBC South East Wales (2010), report)
- An ‘experienced’ mental health carer ‘tormented’ a wheelchair-bound resident with dementia by dripping yogurt on her face, force-feeding her, spinning her around in her hoist despite screams of distress. A female care assistant laughed as he did this. The judge sentenced the woman to a four month suspended sentence and jailed the male carer for 18 months. (Liverpool Echo (2010), report; Nottingham City Council report; see also St Helens Star report)
- A carer was jailed for six months for wilful neglect after a man died in a care home. The case was referred to the police by the coroner. Initially a prosecution for manslaughter by gross negligence was sought, but the charge was dropped. (The Citizen, Blackpool, 2008, report)
- A care home worker who punched, slapped and verbally abused care home residents aged between 70 and 93 was found guilty of ill-treatment. She received an eighteen month prison sentence. (Runcorne & Widnes weekly news, 2010, report)
- From a newsletter for MCA and DoLS leads that I received under the Freedom of Information Act 2000: ‘“The Safeguarding Adults Team at CSU received a Vulnerable Adult Alert form from Social Services with the following information: The Victim (a 70 year old man with Dementia) had become locked out of his home on the morning of 11/01/10, the police attended and took the victim back to the police station while they made arrangements for a key holder to attend the address. The officers took the victim home where they met with the social worker and left him in her care. The social worker found that the victim had been incontinent and had very little in the way of food in his home. She studied the care log and found that the Care Worker had written that she had attended the Victim’s home that morning between 8am and 8:30am and attended to his care needs including providing him with breakfast and a hot drink. This could not have been the case as the victim was in the care of officers at the police station between 7:20am and 10:30am, and the original call being made by a neighbour at 6:30am as stated on the CAD. As a result of this the Social worker made a Safeguarding referral which was picked up by me. I arrested the carer and asked her about her actions and she maintained that she had been there at the times she had written and cared for the victim. After obtaining the necessary witness statements I presented the evidence to the CPS who authorised a charge of Wilful Neglect under section 44 of the Mental Capacity Act 2005. The carer was sentence to 8 weeks in custody.’
- R v Dunn (2010) – the manageress of a care home was convicted of several counts of ill-treatment of residents. One count was that she ‘ill-treated Mr FY by putting him in an incorrect position in a hoist and transporting him from the lounge into the conservatory with his genitals exposed’, a second that she ‘held [the clothing of a resident] in a way that would cause Mrs WI discomfort and pain. Her trousers were pulled up very high, in a degrading way. She was thus held and then allowed to slump to the floor. Unfortunately, she also suffered osteoarthritis of the spine which meant that once she was on the floor she could not get up by herself.’ A third count involved the manageress ‘subjecting GS to abusive and offensive language (count 3) and on two occasions throwing a walking frame at him (count 4).’ The manageress appealed on grounds that ‘capacity’ was not well defined within the meaning of s44 MCA – the phrasing is difficult to reconcile with the ‘decision-specific’ nature of capacity in s2 and s3 MCA. The court held that the recorder in the trial had acted properly by not specifying the issue for which the victim was ‘unable to make decisions for himself’, holding that it was ‘open to the jury to conclude that the decisions about the care of each of these residents at the time when they were subjected to ill-treatment were being made for them by others, including the appellant, just because they lacked the capacity to make these decisions for themselves.’ 
- R v Hopkins; R v Priest  (transcript seems to contain error in first paragraph…) . Hopkins owned a care home, and Priest worked in it before becoming its manager. The prosecution allegations of neglect revolved around care planning. They were found guilty by a jury, but their appeals against the verdicts were allowed because of problems with the summing up and directions to the jury by the trial judge.
- R. v Heaney  Heaney worked in a care home. She had put large quantities of sugar and vinegar in a cup of tea for a resident with Alzheimer’s disease, and had slapped another resident in her 90’s on the back of the head. She had been given consecutive sentences for three months and six months for each offence. On appeal it was found that the length was too long and that they could be served concurrently. The appeal court heard that ‘she did not then, and …she does not now, accept she committed these offences’, but went on to state ‘neither of the victims in fact sustained any distress or injury and they were very short incidents. The consequences for the appellant have been grave: she has lost her livelihood and has no realistic prospect of being able to work in her chosen field again and, if we may say so, rightly so. She has two young daughters at home. She is a woman in early middle age. The effect of a prison sentence upon someone like her, who was until now of previous good character, should not be underestimated.’
So why would prosecutors have used s44 MCA or s127 MHA instead of ‘mainstream’ offences, I wonder? One possibility is that s44 MCA ‘does not require proof of any particular harm or proof of the risk of any particular harm’ (R v Hopkins; R v Priest , ). Neither do common assault and battery, but the limitation period may present problems where victims take a longer time to alert the police or investigations are slow – and the maximum penalty would only be 6 months imprisonment. So one reason for preferring the ‘special’ offences might be where the limitation period is problematic – but in such circumstances I wonder whether an alternative option open to legislators would have been to extend the limitation period for summary offences in relation to people under a disability which might make prosecutions slower to initiate a similar fashion to the extension of the civil limitation period? Such a move could also advantage child victims of common assault, and those abused outside the context of care – for example victims of disability related harassment. Arguably ill-treatment is broader than the offences against the person listed above, and it could well be hard to fit verbal abuse into assault charges – but I wonder whether the statutory offence of harassment couldn’t be used instead?
‘The evidential burden of proof will fall on the prosecution if consent is part of the definition of the offence, while it will fall on the defendant if consent is a defence.’
Herring describes how in case law and academic writings alike, the matter still lies open and contested. What does this mean for capacity? Well, presumably it means that if a lack of capable consent is part of what constitutes the offence prosecuted, then the prosecution will simply need to show evidence that the victim lacked capacity in relation to the matter in question, and that it was not in their best interests. However, the defence may choose to invoke the ‘general defence’ of the MCA if the victim is alleged to lack mental capacity or if they resisted and were said to have mental capacity. In order to do this, the defence would bear the ‘mere’ evidential burden of showing the MCA defence could apply, and the prosecution would have to show beyond reasonable doubt that it does not (R v. Director of Public Prosecutions, Ex Parte Kebeline and Others ). I imagine that it would be challenging for the prosecution to show ‘beyond reasonable doubt’ that the carer did not reasonably believe that the victim lacked capacity and that the interference was in their best interests (s5 MCA), but the general defence does also require satisfaction of more objective elements in that any interference must be the ‘least restrictive option’ (s1(6) MCA) and any use of restraint must be a proportionate response to the likelihood and severity of the harm that would befall the person otherwise. It’s hard to imagine how punching, slapping, shoving, pulling a person out of bed by the ankles, spinning a person around in their hoist whilst they scream in distress, etc, could satisfy those elements of the MCA defence whatever a defendant believed or intended by them. But for most proportionate and well-intentioned acts of care, it would be hard to show beyond reasonable doubt that carers did not reasonably believe that a person lacked capacity and that an act was in their best interests; in short, the standard of MCA compliance required of caregivers would be much lower than for civil law.
Mainstream or special offences?
I am not a criminal lawyer, as I said at the outset, but it strikes me that many acts in connection with care and treatment strictly speaking could satisfy the definitions of various mainstream offences. In lieu of consent, the MCA provides caregivers with a defence against criminal charges, codifying the common law doctrine of necessity. Aside from preventing harm to others or to property, I find it hard to see what other justifications could be invoked for non-consensual acts which involve the use of force against a person, the threat of force, interference with their lawful actions on their own property, acts which involve removing them or taking them away from a place and/or detaining them in a place without lawful authority? Given that unlawful restraint and detention is not so much widespread, but certainly not uncommon, I wonder why the police do not investigate more often, why prosecutors do not prosecute more often, and why it never seems to occur to any of us – care workers, care professionals, lawyers and judges alike – that a police investigation might even be merited?
Update: CPS data on prosecutions under s127 MHA and s44 MCA
The CPS have responded to my request for data on prosecutions under s127 MHA and s44 MCA under the Freedom of Information Act 2000. First, a caveat for the data:
The CPS is unable to answer your request in it’s entirety as Central Records are held in terms of offences, there is no indication of final outcome or if the charged offence was the substantive charge at finalisation. The caveats remain the same in this respect as when you made a previous request in October 2009.
So the data only shows the offences charged in the magistrates court.
2012-2013 (to 24 July 2012)
s44 Mental Capacity Act 2005
s127(1) and (3) Mental Health Act 1983
s127 (2) and (3) Mental Health Act 1983