A little under a year ago on 13 April 2015 the ‘new’ offences of ill treatment or wilful neglect came into force in England and Wales. They were brought in on the back of calls to give a statutory footing to capture both those care workers and organisations guilty of abuse to those in their care.
The offences provide the criminal framework upon which those convicted can be held to account for their actions. Prior to these offences coming into effect there appeared to be a legal loophole which allowed those who ill-treated or wilfully neglected capacitious adults in their paid care to escape charge. There were offences in place which catered for ill-treatment and wilful neglect for children, adults without capacity and those detained under the Mental Health Act 1983.
The offences have been drafted widely and the specific thresholds that need to be reached in terms of the level of harm/ risk of harm have yet to be objectively determined. There has been little action in the courts in the year since these offences were brought in so we have little in the way of guidance on the way that these offences will be prosecuted: It is worth noting that the ‘new’ offence in relation to organisations has been drafted very much in the spirit of the Corporate Manslaughter and Corporate Homicide Act 2007 which is reflective of the continuing trend of holding organisations to account for their actions.
These ‘new’ offences offer the State the ability to appropriately sanction both the care worker and the organisation. The care worker offence carries a maximum jail term of 5 years and a fine; its corresponding offence in relation to care providers reads as a catch all provision designed to penalise those organisations without the requisite policies and procedures to safeguard adults from abuse knowingly or otherwise. The maximum financial penalty if found guilty of this offence for care providers is an unlimited fine. There are additional penalties for care providers found guilty of this offence: a remedial order which identifies the steps the provider needs to take to remedy its breach and/or a publicity order which would require the provider to publicise the details of its conviction.
The particulars of the offence in relation to care providers relates to those who arrange their business in a manner that results in a breach of the duty of care owed to the individual who has been subject to ill treatment/wilful neglect. It therefore covers not only the act but also exposure of risk to the act which is brought about by failing to have the requisite safeguards in place to minimise the risk of such an occurrence happening. Examples of likely failings that could be captured within the care provider offence are: inadequate supervision, policies and procedures, risk assessments and completion of care plan documentation.
These offences are designed to sanction the worst of offences and will not capture those failings that are inadvertent by the care worker or provider. Actual harm to the individual is irrelevant in deciding against the accused in an ill-treatment/ wilful neglect scenario and the courts will look to the behaviour of the accused when deciding on cases of ill-treatment or wilful neglect.
For providers of care who are continually striving to deliver the best care possible these offences shouldn’t cause them to lose much sleep; it does however offer a further deterrent, if one were needed, against poor treatment of those in care. Giving ill-treatment and wilful neglect criminal footing for individuals within paid care could serve to focus the mind of those involved in the provision of care to ensure they have robust policies, procedures and effective governance in place to try to prevent the occurrence of ill treatment or wilful neglect in the first place.