FEATURE Written into Law
Ill-treatment or wilful neglect of people in care became criminal offences earlier this year. David Corker, partner at criminal law firm Corker Binning, explains what the new legislation means for frontline staff and care service providers.
In April this year, sections 20 and 21 of the Criminal Justice and Courts Act 2015 were implemented, creating two new criminal offences. These offences criminalise those deemed responsible for the ill-treatment or neglect of people who were meant to be receiving health or social care.
These offences apply to individuals or organisations that are paid to provide care. Hence, while doctors, clinicians, care workers and their respective employers are within this range, parents and others who provide unpaid or informal care are not. Neither offence therefore seeks to intrude into family life or to discourage volunteers.
The Winterbourne View and Mid- Staffs scandals both revealed endemic patterns of abuse of people who, while vulnerable, were neither children nor lacked mental capacity. Accordingly, unless there was discrete evidence of an assault or the vulnerable person had died as a result of ill-treatment, there was nothing for which the alleged abusers and their employers could be prosecuted for. These scandals made it evident that the wilful neglect of another by a supposed care professional was an evil which Parliament should criminalise and these offences are the result.
The first, outlined in section 20, can only be committed by an individual. If he/she is paid to provide care to another individual but what is done or not done amounts to ill-treatment or wilful neglect then the offence is committed. There is no statutory definition or guidance around what constitutes such harm, the legislators
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having decided that this should all be entrusted to the criminal courts to determine in particular cases. While this is seemingly a sensible delegation, the inevitable vice it creates is uncertainty.
This new offence can be contrasted with its closest analogue, gross negligence manslaughter. While the latter similarly eschews guidance as to what is meant by “gross” and “negligence”, its scope is necessarily restricted by the fact that a particular harm or result must be present: a death. Here, however, is an offence which is committed by conduct alone in relation to which Parliament has set no clear limits. Will doctors be vulnerable to police investigation when a prescribed treatment fails or avoidable suffering not averted? Will this section become a complainant’s charter which leads to frontline care being impeded by a flood of misconceived allegations?
The second offence, detailed in section 21, can only be committed by a “care provider”. It is modelled on the offence of corporate manslaughter created in 2007. It can only be committed by a company or unincorporated association. The traditional criterion of corporate criminality, the “directing mind” concept, is abandoned in favour of a focus on how the organisation organised its activities; did they amount to a gross breach of a duty of care owed by the organisation to the victim of the care worker’s neglect or ill-treatment?
Parliament’s intention is that this offence should resolutely focus on the
alleged failings of the organisation as a whole instead of those of any single individual. As such, it is not a pre-requisite for a conviction for this offence that an individual has been either prosecuted or convicted of the section 20 offence.
This offence is a major new legal risk for any business that employs people to deliver health or social care. In an increasingly ageing society its application will grow substantially. Its enactment requires every affected organisation to ensure that there is comprehensive supervision of employees who have contact with vulnerable people. In addition, organisations must enhance training and guidance and embed an ethical culture, which should ensure that poor behaviour is reported and adequately redressed.
If neglect or ill-treatment has occurred and a police investigation launched then the organisation associated with the alleged perpetrator will need to demonstrate – primarily via its record- keeping – that it had taken reasonable or adequate steps to prevent that conduct. Otherwise it will face the prospect of high-profile litigation and unlimited fines.
www.corkerbinning.com
www.tomorrowscare.co.uk
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