Solicitor’s Neglect Conviction Overturned By Court Of Appeal

A solicitor, specialising in elderly care cases, who was convicted of neglecting her mother on the 29th March this year, has had her conviction overturned on appeal.

Emma-Jane Kurtz, who held enduring power of attorney, was convicted at Oxford Crown Court for one count of wilful neglect by the donee of a power of attorney under the Mental Health Act 2005, following the tragic death of her 79-year-old mother.

Thames Valley Police had responded to a call and attended the Kurtz residence following the death of Cecily Kurtz in July 2014. Upon finding her body, there were signs of significant neglect with burns from urine and extremely matted hair amongst other concerning factors. Additionally, as Cecily Kurtz was being removed from the home her clothes disintegrated, suggesting that they had been continually worn for months.

Francesca Griffin, investigating officer, said at the time: “Mrs Kurtz, who lived with her husband and daughter Emma-Jane, was found on a sofa and she had been slumped over with her chin on her knees for five days.

“She had become incontinent and was covered from head to toe in faeces, had not changed her clothing for a decade and had urine burns. Her long hair had become matted into dreadlocks.

“Emma-Jane Kurtz said she had gone in to the room with her mother in three or four times a day. There had been many opportunities over months and years to help her and remove her from that situation.”

Emma-Jane Kurtz was sentenced to 30 months imprisonment following the trial outcome where the judge had told the jury that a charge under section 44(1)(b) did not require proof of a lack of capacity.

However, three Court of Appeal judges have found that the prosecution, in the original case, needed to prove and subsequently failed to prove that the person said to have been wilfully neglected or ill-treated lacked capacity, or that the defendant (Ms Kurtz) reasonably believed that her mother lacked capacity.

The MCA 2005, Section 44(1)(b), ill treatment of P is only considered if D has the care of a person (‘P’) who lacks, or whom D reasonably believes to lack, capacity. The appeal team claimed that Ms Kurtz should therefore not be considered guilty if the donor still had capacity at the time of neglect.

The appeal claimed that just because the donor granted the donee an EPA, does not imply a lack of capacity. If the deceased had capacity, it altered the conviction entirely. The appeal judges stated “’That means the judge misdirected the jury in a material way and we are satisfied that the appellant’s conviction is therefore unsafe.”

Although the tragic death points to a lack of care or compassion for another human being, the ruling was overturned because it was unsafe to convict without declarative proof that Kurtz suspected her mother’s lack of capacity.

 Kurtz v R.

Are you aware of similar cases concerning neglect? Do you think this interpretation of the MCA 2005 is accurate?   

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