On 27 February 2014, the Department of Health issued its consultation document, “New offence of ill-treatment or wilful neglect”.
The Government believes that there is a small but significant gap in the existing legislation in relation to the ill-treatment and wilful neglect of adults with capacity. In contrast to adults with full capacity, the Government says that children, adults who lack capacity or those subject to the Mental Health Act 1983 are properly covered by specific statutory offences around neglect and ill-treatment. It believes this gap should be filled by a new criminal offence to protect the estimated 10.8 million people who fall outside the existing legislation, as well as acting as a deterrent.
The Regulatory Impact Assessment accompanying the consultation estimates that there will be up to 240 prosecutions per year of organisations and individuals in respect of the new offence.
Key proposals include the following:
- The offence would apply across all formal health and social care settings, not just the NHS, but not to informal care arrangements such as exists between a family carer and their relative;
- The offence would cover those persons or organisations that ill-treat or neglect children in formal health settings. The consultation says it welcomes views on whether the offence should also cover children cared for in non-health services such as fostering, early years provision and children’s residential care;
- The offence would focus entirely on the conduct of the provider or practitioner with no requirement to prove the service user suffered harm;
- The offence would apply to organisations (including corporate bodies and partnerships) and individuals;
- In relation to an organisation, the test would be whether the conduct of the organisation falls far below what can reasonably be expected in the circumstances. In this respect, the consultation document says that, “This approach will also allow scrutiny of the collective actions/failings of the organisation’s senior management.”
- It is not a regulatory offence so would be prosecuted by the police. In comparison, CQC would prosecute breaches of the proposed fundamental standards.
Penalties for individuals would mirror those under the Mental Capacity Act 2005, section 44 namely:
- On summary conviction (in a magistrates’ court) up to 12 months imprisonment, or a fine not more than the statutory minimum (currently £5,000), or both;
- On conviction by indictment (in a Crown Court) up to 5 years imprisonment, or a fine, or both.
Penalties for organisations would include fines but also public reprimands and (where appropriate) remedial orders (requiring organisations to take steps to correct the situation). A further sanction would be removal of the organisations’ leadership and their disqualification from future leadership roles, linking in to the Fit and Proper Test for directors (or equivalent) of organisations registered with CQC.
The consultation document stresses that genuine errors or accidents should never lead to prosecution. The offence would cover the most serious cases of wilful neglect and ill-treatment. It also stresses that the offence “must not act as an inhibitor to health and social care professionals exercising informed clinical judgement on priorities or appropriate treatment.”
Interestingly, stakeholders raised concerns about malicious or vexatious allegations being made by individuals through private prosecutions. The Government recognises this as a potential risk but says that there are already protections for defendants in private prosecutions. Specifically, defendants can refer cases to the Director of Public Prosecutions and ask for intervention. The Crown Prosecution Service can then become involved and review the case, ultimately stepping in and stopping the proceedings if the evidential test and public interest tests set out in the Code for Crown Prosecutors are not met.
At Ridouts we do not believe a new statutory criminal offence is needed given the existing law does allow for prosecutions around ill-treatment and neglect of adults with capacity. However, it is clear that the Government wishes to introduce a statutory offence for fully capacitous adults to correspond with that applying to adults without capacity under the Mental Capacity Act 2005. The one key difference is that the offence of ill-treatment and wilful neglect under the Mental Capacity Act applies to all care relationships, formal and informal. The consultation document presents a peculiar argument that the Government does not want to put informal arrangements in jeopardy by extending the new offence to family members. Applying this bizarre logic, the threat of punishment of informal carers for ill-treatment or wilful neglect of adults with full capacity is unjustified as it might deter them from acting as carers but if and when those adults lose capacity the punitive and deterrent effect of such an offence is perfectly legitimate and necessary.
As far as organisations are concerned there is a fear that the proposed new offence will overlap with offences under CQC’s proposed new regulatory framework, notably breaches of fundamental standards around person-centred care and safeguarding. The Department says it does not think there is an overlap but their reasoning is far from convincing.
The consultation runs until 4 April 2014. We will be reporting on its outcome in due course.