The great news coming out of inspections of care services carried out by the Care Quality Commission is that care workers in the vast majority of cases are found to be caring and compassionate. This finding is reflected in the fact that almost two thirds of providers have been rated either outstanding or good by CQC. Care providers should be justly proud of the excellent work that care workers undertake in caring for some of our most vulnerable members of society. There will, however, always be a small minority of care workers who do not uphold these high standards and the criminal law is there to hold them to account where necessary.
After the publication in 2013 of the Inquiry Report into the scandal at Mid Staffordshire Hospital, the Government commissioned a review of patient safety which concluded that there was a gap in the law given there was no criminal offence to punish those who ill-treat or wilfully neglect adults of full capacity. In contrast, there were offences covering children, adults without capacity and those subject to detention under the Mental Health Act 1983.
In response, the Government introduced new offences from 13 April 2015 covering paid care workers who either ill-treat or wilfully neglect a service user to whom they provide health care or social care. On conviction, the punishment is by way of a fine and/or imprisonment. It not only covers front line care staff but an individual who is paid to supervise or manage individuals providing care, or a director of the organisation that provides care.
Care workers should be reassured that in passing this new law the Government made it clear that genuine errors or accidents should not lead to criminal liability. The new offences are there to address (1) deliberate acts of ill-treatment and (2) deliberate or reckless failures to act which would amount to wilful neglect. It is not necessary to show harm has been caused. It is the conduct of the care worker that is the issue. Examples of ill-treatment that have led to convictions include dragging a disabled person to the toilet and locking someone in a cupboard, while a case of wilful neglect involved a service use who was found on the floor with partial hypothermia having not been put to bed by the carer.
Care workers will encounter situations where service users refuse health or social care. Provided the care worker can show they were motivated by the desire to uphold the person’s autonomy, any apparent neglect would not amount to wilful neglect. It will be important in circumstances, say, where a service user is refusing to have a bath or have their nails cut to document the steps taken to persuade the person to receive the care they need, as well as their refusal. Of course, it will often be necessary to follow up persistent refusals to receive care with other professionals and again it will be important to record the action taken.
Finally, it is important to put matters in perspective. There are around 11 million people who use health and social care each year in this country and yet the Government estimated that there might only be around 240 prosecutions each year, a tiny proportion in the scheme of things. The fact remains that prosecutions are very rare with the vast majority of care workers providing excellent care to the best of their ability.