New Criminal Offence Under The Mental Capacity Act 2005

The ill-treatment or wilful neglect by a carer of a person lacking mental capacity will now be a criminal offence under the Mental Capacity Act 2005 (the Act), punishable by a fine or a prison sentence of up to five years or both.

The new offence, effective from 1 April 2007, will apply to all carers of people who lack capacity to make decisions for themselves, including family carers, healthcare and social care staff in hospital or care homes and those providing care in a person’s home.

Those protected by the new offence include people with learning disabilities, dementia, or brain injuries.

Constitutional Affairs Minister Cathy Ashton said: “Mistreating people who cannot make decisions for themselves is wrong. This new criminal offence clearly conveys our determination to put a stop to it.  

“From April, ill-treating or wilfully neglecting a person lacking mental capacity will be a criminal offence, to protect some of the most vulnerable people in the country.”

The Act provides a statutory framework to empower and protect people who may not be able to make some decisions for themselves due to incapacity.

Under the Act you will be able to appoint someone else to make decisions for you regarding your welfare, should you lack capacity to do so yourself in the future.

At the moment the law allows you to appoint one or more attorney in advance to make decisions about your finances only. The new Act will allow you to appoint an attorney to make health and personal welfare decisions too. The existing system of Enduring Powers of Attorney will be replaced by a new system of Lasting Powers of Attorney which will offer more protection.

In Scotland, the equivalent Welfare Power of Attorney was introduced by the Adults with Incapacity (Scotland) Act 2000.