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This article was first published on LexisPSL Local Government on 17 March 2014. Click here for a free 24h trial of LexisPSL.

Tackling wilful neglect in adult social care

17/03/2014 Local Government analysis: Could a new criminal offence of ill-treatment or wilful neglect of patients secure proper care for patients. Aswini Weereratne, barrister at Doughty Street Chambers, and lead author of Butterworth's New Law Guide to the Mental Capacity Act 2005, looks at the issues behind the proposal.

Original news
Consultation: New offence of ill-treatment or wilful neglect, LNB News 27/02/2014 118 Both individuals and organisations could be prosecuted under a new offence of ill-treatment or wilful neglect being consulted on by the Department for Health (DoH). The government is seeking views on the scope and elements of the offence as well as how to apply it to organisations. The consultation closes on 31 March 2014.

What has led to the development of this proposed new offence?

The government is consulting on proposed legislation to introduce a new offence of ill treatment or wilful neglect aimed at patient safety in response to the Mid Staffordshire and Winterbourne View scandals. The aim is to provide the same protection that already exists for some specific patient groups like adults who lack capacity as defined under the Mental Capacity Act 2005 (MCA 2005) or those subject to the Mental Health Act 1983.

What have been identified as the deficits in the existing law in this area?
The consultation paper highlights a deficit in the existing legislation of a specific criminal offence for ill-treatment, or wilful neglect, of adults with full capacity who are in care. Notwithstanding that the National Advisory Group acknowledges that 'there already exists a series of robust sanctions and powers' available to regulators such as the Care Quality Commission and the Health and Safety Executive that could be brought to bear. The proposal is to model the new offence on MCA 2005, s 44 which would mean that all patients would be placed on an equal footing as far as available sanctions are concerned.

How is the proposed new offence structured?

To be effective the proposal recommends that the offence should apply to 'all formal health and social care settings, whether NHS, local-authority funded, or in the independent sector'. Importantly this acknowledges that the delivery of integrated services means that care provided across health and social care settings must be included. The intention is also to include situations where domiciliary care is provided through personal budgets or direct payments.

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The consultation document recommends penalties for both individuals and organisations. For individuals it is suggested that penalties should mirror those specified in MCA 2005, s 44 and organisations would be subject to similar provisions in the Corporate Manslaughter and Corporate Homicide Act 2007.

Are there any obvious difficulties with the offence in its current form?
There is some dilemma about the merits of extending protection to cover informal care settings eg personal family carer arrangements or 'where someone is keeping a friendly eye on an elderly neighbour'. The proposal is to focus on the conduct of the perpetrator and not the harm to the victim. The broad view is that this may backfire as family members may decide not to help look after their relative for fear of prosecution. The consultation document states that the legislation does not propose to define 'wilful' as it has a 'widely accepted meaning established by case law' but this could give rise to different interpretation in some cases.

Is this likely to have broad support?

In general terms it is difficult to argue against any measure that is intended to secure proper care for patients being cared for by public bodies. Fundamental rights under the European Convention on Human Rights, art 2 (right to life) and 3 (prohibition on inhuman or degrading treatment), mean that the state must legislate or take measures to deter the commission of such violations against the person. Yet the positive obligations arising have not been extended to patients receiving general medical care in the NHS (see Rabone v Pennine Care NHS Trust [2012] UKSC 2, [2012] 2 All ER 381). Against the proposal is the view that what is needed to improve and protect patient safety is not to threaten to criminalise carers but to support, train and offer them sufficient resources to do their jobs properly and professionally. The argument employed against the inclusion of personal family carers in the consultation paper is valid in this context--it would be counterproductive if the new offence led to a lack of carers because they fear prosecution. The wider existing criminal law should arguably be sufficient if used.

What is the potential time frame?

The consultation closes on 31 March 2014, and the document states it wants to move forward quickly.

What should lawyers do next?

Lawyers should respond to the consultation document particular on key elements such as: o o o scope of the offence elements of the offence, and how to describe the offence in relation to organisations where feedback from stakeholders suggest a different approach is needed from government thinking

Interviewed by Evelyn Reid. The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.