Application across the book’s scenarios
| Scenario | How section 44 could apply |
|---|---|
| Care home | A staff member with care of a resident who lacks or is reasonably believed to lack capacity deliberately withholds food, fluids, medication, hygiene, mobility or protection, or uses care as punishment. |
| Sheltered housing | A housing worker is not automatically a person with care of the tenant. Liability turns on the functions actually assumed, the person’s capacity and the defendant’s relationship to the care. |
| Supported living or family home | A paid worker, attorney, deputy or other person with care may be liable. A relative is not automatically criminally responsible for unmet need merely because services failed to provide replacement care. |
| Community support | A qualifying carer who controls essential assistance during an outing or appointment may commit the offence away from the residence; the caring role and wilfulness still need proof. |
| Child removal | If removal leaves an adult lacking capacity without essential support, a qualifying defendant who knowingly allows the neglect may be liable. Lawful removal and criminal neglect are separate questions. |
| What would usually be insufficient | Capacity is not proved or reasonably believed, the defendant lacks the statutory relationship, the omission is accidental, or the person made a capacitous refusal of care. |
Section 44 of the Mental Capacity Act 2005 applies where a person with care of someone who lacks, or is reasonably believed to lack, capacity—or an attorney or deputy—ill-treats or wilfully neglects that person. It is role-specific and capacity-specific; it is not a universal neglect offence.
Care denial
A qualifying defendant may commit the offence by consciously failing to provide indispensable food, hydration, medication, hygiene, mobility, supervision or protection, or by using those needs as punishment or control. The prosecution must prove wilfulness rather than ordinary negligence.
Separation and removal
Child or family separation may be relevant if it removes the person who supplied essential care and the qualifying defendant then knowingly leaves the adult without support. The lawfulness of the removal and the defendant’s caring role must be analysed separately.
Evidence
Capacity assessments, proof of the defendant’s caring role, deputyship or power of attorney, care plans, warnings, records of available alternatives, contemporaneous messages and medical causation evidence are central.