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Ill-treatment or wilful neglect of a person lacking capacity

s.44Mental Capacity Act 2005

A carer, attorney or deputy ill-treating or wilfully neglecting a person who lacks mental capacity.

Ill-treatment or wilful neglect of a person lacking capacity · Mental Capacity Act 2005, s.44Card 53 / 195

Points to prove

s.44(1)(a)Had the care of a person who lacks capacity, or whom the defendant reasonably believes lacks capacity, or
s.44(1)(b)Was the donee of a lasting or enduring power of attorney created by that person, or
s.44(1)(c)Was a deputy appointed by the court for that person
s.44(2)Ill-treated, or wilfully neglected, that person

Key definitions

Lacks capacity – s.2(1): unable to make a decision for themselves about a matter at the material time, because of an impairment of, or a disturbance in the functioning of, the mind or brain.
Unable to make a decision – s.3: unable to understand, retain, use or weigh the relevant information, or to communicate the decision.
Has the care of – not defined. It covers paid and unpaid carers, including family members, care home staff and health workers.
Ill-treats – deliberate conduct that amounts to ill-treatment, whether or not it causes injury.
Wilfully neglects – a deliberate or reckless failure to provide proper care. An accident or a genuine mistake is not enough.

Good to know

Ill-treatment and wilful neglect are separate ways of committing the offence. Charge the one that fits the evidence.
Capacity is decision-specific and can change over time. Medical or other expert evidence about the victim’s capacity is usually needed.
Where the victim has capacity and the suspect is a paid carer, use the Criminal Justice and Courts Act 2015, s.20 offence instead.
Ill-treatment or wilful neglect of a patient receiving treatment for mental disorder is a separate offence under the Mental Health Act 1983, s.127.

Legislation: Mental Capacity Act 2005, s.44 (opens legislation.gov.uk in a new tab)
Mode of trial: Either way
Maximum penalty: 5 years' imprisonment and/or a fine (on indictment); 12 months' imprisonment and/or a fine (summarily)
Last checked: 2 November 2026, against the current law on legislation.gov.uk

Ill-treatment or wilful neglect of a person lacking capacity: questions people ask

What are the points to prove for ill-treatment or wilful neglect of a person lacking capacity?

1. Had the care of a person who lacks capacity, or whom the defendant reasonably believes lacks capacity, or 2. Was the donee of a lasting or enduring power of attorney created by that person, or 3. Was a deputy appointed by the court for that person 4. Ill-treated, or wilfully neglected, that person

What is the maximum sentence for ill-treatment or wilful neglect of a person lacking capacity?

5 years' imprisonment and/or a fine (on indictment); 12 months' imprisonment and/or a fine (summarily)

Is ill-treatment or wilful neglect of a person lacking capacity a summary, either-way or indictable offence?

Ill-treatment or wilful neglect of a person lacking capacity is an either-way offence: it can be tried in the magistrates’ court or the Crown Court.

What Act and section is ill-treatment or wilful neglect of a person lacking capacity?

Ill-treatment or wilful neglect of a person lacking capacity is an offence under the Mental Capacity Act 2005, s.44.

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