The Court of Appeal has quashed a jail sentence of two and a half years imposed on a solicitor, who specialised in care for the elderly, for neglecting her mother.
Lady Justice Macur said the judge made a “fatal” error in failing to direct the jury to consider the question of whether Emma-Jane Kurtz, an associate at regional firm Boyes Turner, should “reasonably have believed” her mother lacked mental capacity.
Following the conviction of Ms Kurtz in April this year, prosecutor Kirsty Allman said the solicitor’s mother, Cecily, was “found dead on a sofa sitting in a pool of diarrhoea in the most appalling and filthy state”, having been “neglected for years in the most horrifically squalid conditions”.
Ms Allman described the case as “one of the most shocking and sickening cases of neglect I have come across”.
Ms Kurtz was convicted of “the wilful neglect by the donee of an enduring power of attorney” (EPA).
The judge said Cecily “had a history of mental illness including bipolar disorder, depression and obsessive-compulsive disorder” and “a history of failing to co-operate with medical professionals when they tried to help her”.
Delivering judgment in Kurtz v R  EWCA Crim 2743, Macur LJ said Cecily “had refused to see her GP or to have a Mental Health Act 1983 assessment in 2004, and thereafter had had nothing to do with doctors”.
The judge described Ms Kurtz as “a 41 year-old solicitor of good character”, with the senior partner of the law firm at which she worked saying she had “particular empathy for the elderly” in her work. However the solicitor was “mildly autistic herself and had few friends”.
Cecily granted an EPA to her daughter in 2006, under the Enduring Powers of Attorney Act 1985, which was not registered.
The Court of Appeal heard that it was never revoked or replaced with a lasting power of attorney under the Mental Capacity Act 2005.
Macur LJ said the case was the first time the Court of Appeal had considered sections 44(2) and 44(1)(b) of the Mental Capacity Act 2005.
She said the “essential question” was whether the prosecution must prove, for the offence of ‘wilful neglect’ under section 44(2), that the victim lacked mental capacity or the defendant “reasonably believed” that she lacked capacity.
The Court of Appeal’s view was that section 44(1)(b) should be read to include the requirement that the victim lacked mental capacity, the judge said.
The trial judge at Oxford Crown Court was asked to rule in advance of the trial whether the prosecution had to prove the lack of capacity requirement. He ruled that they did not, and as a result gave the jury no direction relating to the mother’s capacity when summing up.
Macur LJ said that, despite the Court of Appeal’s comments on the evidence, “which suggests that, at a minimum, the appellant should reasonably have believed her mother to lack mental capacity in matters of personal welfare, the judge’s failure to direct the jury in this regard is fatal to the safety of the conviction and the appeal must be allowed”.
She went on: “We can imagine cases in which the requirement to prove lack of capacity, or the defendant’s reasonable belief in lack of capacity, would be hard to establish.
“We can also envisage cases where it might be difficult to show that the defendant was in a caring a role. This case was unlikely to have been one of them.
“The state of Cecily Kurtz in the months leading up to her death, and the conditions in which she spent the last weeks and months of her life, might well have been sufficient, without more, for the jury to have been satisfied that she lacked capacity.”
Macur LJ rejected the first ground of appeal put forward by counsel for Ms Kurtz, that someone could only be guilty of the offence if the EPA had been registered with the Public Guardian.
She added that she had “every sympathy” for the trial judge, “faced with the task of interpreting this statutory provision in the absence of Court of Appeal authority” and against the background of criticism by appeal judges of the drafting of another part of section 44.
Mr Justice Julian Knowles and His Honour Judge Wall QC, sitting as judges of the Court of Appeal, contributed to the judgment.