Partner David Corker on recent developments regarding care provider offences

Care Provider Offences

Sections 20 and 21 of the Criminal Justice and Courts Act 2015 were implemented in mid-April. Each creates a new criminal offence. These offences criminalise those they deem responsible for the ill-treatment or neglect of people who were meant to be receiving health or social care. The range of persons to whom these offences apply are individuals and organizations which are paid to provide care. Whereas doctors, clinicians and care workers and their respective employers are within their range, parents and others who provide unpaid or informal care are not. Neither offence therefore seeks to intrude into family life or to discourage volunteers.

Both the Winterbourne View and Mid-Staffs scandals revealed endemic patterns of abuse of people who, whilst vulnerable, were neither children not lacked mental capacity. Accordingly, unless there was discrete evidence of an assault or the vulnerable person had died as a result of ill-treatment, there was nothing for which the alleged abusers and their reckless or callous employers could be prosecuted for. These scandals made it self-evident that the wilful neglect of another by a supposed care professional was an evil which Parliament should criminalise and these offences are the result.

The first of this pair can only be committed by an individual. If he/she is paid to provide care to another individual but what is done or not done amounts to ill-treatment or wilful neglect then the offence is committed. There is no statutory definition or guidance of what constitutes such harm, the legislators having decided that this should all be entrusted to the criminal courts to determine in particular cases. Whilst this is seemingly a sensible delegation, the inevitable vice it creates is uncertainty. This new offence can be contrasted with its closest analogue, gross negligence manslaughter. Whilst the latter similarly eschews guidance as to what is meant by “gross” and “negligence” its scope is necessarily circumscribed by the fact that a particular harm or result must be present: a death. Here, however, is an offence which is committed by conduct alone in relation to which Parliament has set no clear limits. Will doctors, for example, be vulnerable to police investigation when a prescribed treatment fails or avoidable suffering not averted? Will this section become a complainant’s charter which leads to “front line” care being impeded by a flood of misconceived allegations?

Hopefully such scenarios are like the millennium bug, chimerical. Common sense will prevail.

The second, section 21, offence can only be committed by a “care provider”. It is modelled on the offence of corporate manslaughter created in 2007. So firstly it can only be committed by a company or unincorporated association. Secondly the traditional criterion of corporate criminality, the “directing mind” concept, is abandoned in favour of a focus on how the organisation organised its activities; did they amount to a gross breach of a duty of care owed by the organisation to the victim of the care worker’s neglect or ill-treatment? Parliament’s intention is that this offence should resolutely focus on the alleged failings of the organization as a whole instead of those of any single individual. This intention is reinforced by a number of measures intended to prevent secondary liability attaching to any individual. Elsewhere in this statute are sections which preclude an individual for being tried for offences of aiding and abetting or encouraging or assisting this offence. Furthermore it is not a pre-requisite for a conviction for this offence that an individual has been either prosecuted or convicted of the section 20 offence.

The strong similarity between section 21 and the 2007 offence should mean that the jurisprudence concerned with this antecedent offence, for example in relation to test of causation and the meaning of “gross”, will be read-across.

This offence is a major new legal risk for any business which employs people to deliver health or social care. In an increasingly ageing society its application will grow substantially. Only local authorities are exempted. NHS trusts and GP’s practices for example are both caught. Its enactment requires every affected organisation to ensure that there is comprehensive management and supervision of employees who have contact with vulnerable people. In addition to these controls, to enhance training and guidance and to embed an ethical culture which should ensure that poor behaviour is reported and adequately redressed.

If neglect or ill-treatment has occurred and a police investigation launched then the organisation associated with the alleged perpetrator will need to demonstrate primarily via its record-keeping that, similar to the corporate crime offence created by section 7 of the Bribery Act 2010, it had taken reasonable or adequate steps to prevent that conduct. Otherwise it will face the prospect of high-profile litigation and unlimited fines.

Read the original post on Crimeline here, Autism Eye here, Tomorrow’s Care here and Care and Nursing Essentials here.