Proposals for a new criminal offence of ill-treatment or wilful neglect in health and social care settings

This consultation outlines and invites views on the Scottish Government’s proposals for a new criminal offence of ill-treatment or wilful neglect of those receiving care or treatment in health and social care settings.

The Scottish Government’s proposal is to create an offence which is similar to those that presently exist in relation to mental health patients and adults with incapacity. The proposed offence would cover the wilful neglect or ill-treatment of anyone receiving care or treatment in a range of care services.

Events elsewhere, for example, at Mid-Staffordshire NHS Foundation Trust, and at Winterbourne View, show there can be instances where people receiving care are deliberately mistreated or neglected by those who have been trusted to look after them. Although such incidents of deliberate neglect or mistreatment may be uncommon, we need to ensure that the criminal justice system is able to deal with these cases effectively when they arise.

 

Settings and Services Covered

In order to ensure consistency and address a current gap in legislation the Scottish Government considers it should introduce a criminal offence of wilful neglect or ill-treatment to cover all individuals receiving care in a formal health or social care setting. All patients in formal health and social care settings would be afforded the protection of the legislation irrespective of their mental health or mental capacity. The proposal would cover those who work in providing care and treatment in health and social care, including such care or treatment provided in both the statutory and third sectors.

The new offence would cover all care in delivered in the following settings and services:

  • NHS and independent hospitals
  • Hospices
  • Primary care services
  • Adult care homes
  • NHS and independent ambulance services

The legislation would apply to all providers of health and social care services and patients in all these settings would be afforded the protection of this legislation.

Given the nature of unpaid caring where it is not carried out by virtue of a contract of employment or other contract or as a volunteer, the Government do not feel that it would be appropriate for the offence to cover the types of care situation where there is no legal obligation or contract in place and which take place in a person’s home. If however, a cared-for person is neglected or mistreated by the unpaid carer then the existing offences in statute would apply. The proposed offence should cover all formal situations where health care is provided for children, for example in NHS hospitals and independent hospitals. However, the range of social care services provided for children is different to those delivered for adults.

 

QUESTIONS:

Do you agree with the proposal that the new offence should cover all formal health and adult social care settings, both in the private and public sectors?
Do you agree with our proposal that the offence should not cover informal arrangements, for example, one family member (generally termed unpaid carer, or carer) caring for another?
Should the new offence cover social care services for children, and if so which services should it cover? Please list any children’s services that you think should be excluded from the scope the offence and explain your view.
Should the offence apply to people who are providing care or treatment on a voluntary basis on behalf of a voluntary organisation, whether on a paid or unpaid basis?
Conduct or Outcomes?
The Government believe that the offence should be based on the conduct of the individual or organisation rather than based on any harm caused as a result of their actions. No measure of deliberate neglect or mistreatment is acceptable and they feel that the criminal law should reflect this. If a threshold of harm was set out in legislation then this could give rise to a situation where two people were subjected to the same ill-treatment or neglect by the same care worker but because one was more seriously harmed than the other, a prosecution could only be brought in respect of the more seriously harmed individual. Furthermore, setting a harm threshold may give rise to uncertainty about when the offence would apply. The offence should apply where someone has wilfully neglected or ill-treated another in the settings described, regardless of the harm caused by that neglect or ill-treatment.

 

QUESTION:
Do you agree with our proposal that the new offence should concentrate on the act of wilfully neglecting, or ill-treating an individual rather than any harm suffered as a result of that behaviour?
Individuals and/or Organisations?
The Scottish Government believe that it is appropriate for the new offence to apply to organisations as well as individuals.

 

QUESTION:
Do you agree with the proposal that the offence should apply to organisations as well as individuals?
How, and in what circumstances, do you think the offence should apply to organisations?
Penalties
The proposal is that the penalties for the new offence should reflect those currently set out in legislation for the existing offences relating to mental health patients and adults with incapacity. Both of these offences attract the same penalties:

  • On summary conviction: imprisonment for a maximum term of 12 months, or to a fine not exceeding the statutory maximum (currently £10,000) or both.
  • On conviction on indictment: imprisonment for a maximum term of 2 years or to a fine (of an unlimited amount), or both.

In respect of organisations there may be other penalties which could be considered.

 

QUESTION:
Do you agree that the penalties for this offence should be the same as those for the offences in section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and section 83 of the Adults with Incapacity (Scotland) Act 2000?
Should the courts have any additional penalty options in respect of organisations? If so, please provide details of any other penalty options that you think would be appropriate?

 

Equality Considerations
The Scottish Government will undertake an Equality Impact Assessment to identify any equality impacts for people with a protected characteristic as defined by the Equality Act 2010.

 

QUESTION:
What issues or opportunities do the proposed changes raise for people with protected characteristics (age; disability; gender reassignment; race; religion or belief; sex; pregnancy and maternity; and sexual orientation) and what action could be taken to mitigate the impact of any negative issues?

 

The full consultation and information on submitting a response is available at: 

http://www.scotland.gov.uk/Resource/0046/00460481.pdf

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