Care Talk: New Offences created to protect service users

Topics covered: Ridouts professional advice

The care sector is still reeling from the fallout from scandals such as Winterbourne View which exposed many negative care issues such as service users being admitted to hospitals when they should be catered for in their own homes or a care home and it is clear in the most recent Government report entitled Winterbourne View: Transforming Care 2 Years on that there is still much to be done to reduce poor care. The dehumanisation and degradation of the most vulnerable is a serious concern. These people are open to abuse especially where they lack capacity and there are few places where there is as great an exposure to such risk than in the care home setting. The Government intends to create two new criminal offences designed to make prosecutions of both employees and their accompanying providers (the employer) who abuse those within their care easier to achieve.

Ill-treatment and wilful neglect are the two new offences that will be created through the Criminal Justice and Courts Bill soon to be written into law.  Section 20 of the proposed Act will make it an offence for a care worker to ill-treat or wilfully neglect the ‘cared for’ individual.  A care worker, for the purposes of the act, is defined as an individual that is paid to provide healthcare for an adult or a child or social care for an adult.  This will include managers and directors that provide care and fail to provide adequate management and oversight.  Section 21 of the Act relates to provider offences and applies if the care worker ill-treats or wilfully neglects the individual.  There also needs to be a gross breach of the duty of care owed by the provider to the individual which increased the probability of the poor treatment taking place to be guilty of this offence.  The maximum sentence for a care worker found guilty of this offence would be a prison sentence of 5 years and an unlimited fine; and the corresponding sentence for a care provider is also a fine.

There remains the separate offence in section 44 Mental Capacity Act 2005 which will continue to cover ill-treatment and wilful neglect by family members and unpaid care workers. The maximum sentence for an individual found guilty of this offence is a prison sentence of 5 years and an unlimited fine also.

The intention of creating the two new offences is clearly to make it easier to prosecute poor care and neglect where it is found. The Government is aiming to achieve parity between the care worker and their employers in order to place the responsibility squarely on the shoulders of both parties. The proposed Act, when made law, will cement this and make prosecutions and convictions easier to bring about. Carers and their providers should, as we all know, be striving to provide the best service for the people they care for and this change in law is designed to make providers and carers more accountable. The consequences of poor care will be far more serious and this is a welcome step for the sector.

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