Sections 20 and 21 of the Criminal Justice and Courts Act 2015 are a part of the Government’s response to the public inquiry conducted by Sir Robert Francis QC into the events at Mid-Staffordshire NHS Foundation Trust (Report of the Mid Staffordshire NHS Foundation Trust Public Inquiry, also known as the Francis Report). There were already offences in relation to the ill-treatment and wilful neglect of adults receiving treatment for mental disorder (under the Mental Health Act 1983) and of those who lack mental capacity. However, there was previously no equivalent specific offence in relation to those being cared for who had full mental capacity (see Mental Capacity chapter).
Under these sections of the Act, it is a criminal offence for an individual to ill treat or wilfully or deliberately neglect a person for whom they care, in their role of being a care worker.
‘Wilful’ means that the care worker has acted deliberately or recklessly in relation to the person who they are paid to care for.
‘Ill-treatment’ is also a deliberate act, where the individual knew that they were ill treating a person, or were being reckless as to whether they were.
Ill treatment and neglect are separate concepts. Ill treatment does not necessarily have to result in physical harm and can involve emotional and psychological damage – that the actions have caused or have the potential to cause to the adult and their family (see case law R v Newington1990, 91 Cr App R 254). It can also include a failure to protect the privacy and dignity of a vulnerable adult when the victim is unaware that they are being ill treated.
These offences apply to both organisations and individuals.
The Care Quality Commission (CQC) has a role to play as the regulator in setting standards and ensuring adults are safeguarded from abuse and improper treatment. CQC can prosecute registered care providers whom they have judged to have breached the standard. Criminal offences only apply to cases of wilful neglect where there is evidence of the worker or organisation acting or omitting to act deliberately, even though they know there is some risk to the adult as a consequence or because they do not care about that risk. Genuine errors or accidents by a care worker should not be caught within these offences.
2. Care Worker Offence
Under the Act a ‘care worker’ means an individual, who, is paid to provide health or social care. They may also be a director or be in a similar post within an organisation that provides health or social care.
‘Paid work’ means when a person is paid for carrying out care (see Appendix 1, Further Information, Paid work).
Health care includes all types of physical health or mental health care provided to adults. This also includes health care in relation to protecting or improving public health, and procedures that are similar to types of medical or surgical care but are not provided in connection with medical conditions which are excluded health care (see Excluded Healthcare) .
Social care includes all types of personal care, physical support and other practical assistance provided for people who need such care or assistance. This may because of:
- dependence on alcohol or drugs; or
- any other similar circumstances.
This would not include a person who provided such care which was secondary to carrying out other activities.
A care worker found guilty of such an offence could receive a prison sentence of up to five years or a fine (or both); or for a less serious charge a prison sentence of up to 12 months or a fine (or both).
Unpaid family carers and friends cannot be charged with these offences. They may be investigated and charged under different legislation, however.
3. Care Provider Offence
The term ‘care provider’ means:
- a corporation or association that provides and / or arranges health care (apart from excluded health care – see Section 2, above) or social care for an adult;
- a person who is not the care provider, but provides health care or social care which has been arranged by the care provider, including where the individual does not provide care but supervises or manages those who do;
- a director or similar post holder in an organisation which provides health care or social care;
- a person who provides such care and employs or has arrangements with other people to assist them in providing such care.
A care provider commits an offence if:
- a care worker who is caring for an individual (as part of the care provider’s arrangements) ill treats or wilfully neglects that individual;
- if the care provider’s activities are managed or organised in a way which leads to a gross breach of a duty of care by the care provider to the individual who is ill-treated or neglected, and if that had not happened, the ill treatment or wilful neglect would not have occurred or would have been less likely to occur.
A person arranging for the provision of such care does not include someone who makes arrangements under which the provision of such care is secondary to carrying out other activities.
References made to providing or arranging the provision of health care or social care do not include making:
- direct payments for community services and carers;
- direct payments for health care;
- direct payments for care and support.
4. Duty of Candour
See also Duty of Candour chapter
There is a requirement on health and social services to be open and honest with patients and service users when things go wrong. Professionals are expected to be candid with adults who use their services and their families when serious events occur and not obstruct fellow professionals who raise concerns.
The Francis Report recommends that healthcare providers must inform patients or other authorised persons as soon as practicable when they believe that the treatment of care provided has caused death or serious injury to that patient and provide information and explanation as the patient may reasonably request.
It also recommends a duty of candour on individual professionals to inform their employers where they believe or suspect that the treatment has caused death or injury. It is a criminal offence to obstruct a person in the performance of these duties or provide misleading information.
The Care Act includes a duty of candour as one of the requirements for providers registered with the CQC. All providers must act in open and transparent manner with adults who use their services and their families about their care and treatment.
There is also a requirement to notify and provide information and support to the adult or the person acting on their behalf where:
(i) an incident has resulted in or appears to have resulted in the death of an adult who uses the service ; or
(ii) caused severe harm or moderate harm or prolonged psychological harm to them.
The regulations also set out a notification requirement and it is a criminal offence for workers who commit breaches of the duty of candour.
Appendix 1: Further Information
Meaning of Wilful
The meaning of “wilful “has been developed in the case of R v Sheppard [1981) AC the House of Lords held that a man “wilfully” fails to provide adequate medical attention for [P] if he either
(a) Deliberately does so knowing that there is some risk that P’s health may suffer unless he receives such attention; or
(b) Does so because he does not care whether P may in need of medical treatment, or not’
Paid work does not include:
- payment in respect of the individual’s expenses;
- payment to which the individual is entitled as a foster parent;
- a benefit under social security legislation;
- or a payment made under arrangements under Section 2 of the Employment and Training Act 1973 (arrangements to assist people to select, train for, obtain and retain employment).