By Matt Bee
Ever feel like you’ve missed something? When David Cameron announced controversial plans in March this year for legislation that could see social workers prosecuted for wilful neglect of children on their caseloads, I did.
First of all, and within just a few days, an online petition was created for social workers to rally and reject such a thing. Over 9,000 signed it in quick time (the current total is almost 12,000). Shortly after, Polly Baynes, a professional with over thirty years’ experience in child protection, wrote an open letter to the PM pleading with him not to criminalise the profession. The editor of Community Care wrote a letter, too, and soon it was literally drenched in the signatures of outraged professionals. And then the latest edition of another publication I write for hit my desk, and there on the cover was a cartoon of a manager explaining to a small child that she couldn’t see her social worker right now because, well, she was in the slammer.
‘Proposals deserve a fair hearing’
Well I actually think David Cameron’s right. Or at the very least his proposal needs a fair hearing. I realise it’s tantamount to treason for a social worker to say such a thing, but first off let’s consider how this legislation would fit into the wider legal framework. It slots in pretty neatly – right alongside other existing laws that can be used to prosecute social care workers or, in some cases, carers, for wilful neglect of the people in their care. Here’s what’s already on the statute books, going back over 80 years:
- An offence of cruelty to children, including wilful neglect, applying to adults with responsibility for them, including foster carers and children’s home staff (section 1 of the Children and Young Persons Act 1933).
- Offences of ill-treatment or wilful neglect of a mental health patient applying to hospital or care home staff or people given guardianship of another person (section 27 of the Mental Health Act 1983).
- Offences of ill-treatment or wilful neglect of a person who lacks capacity applying to people who people who have their care, such as a family carer or care worker, their donnee of lasting power of attorney or a deputy (section 44 of the Mental Capacity Act 2005).
- Offences of ill-treatment or wilful neglect of a person by a care worker or a care provider providing healthcare for a child or adult or social care for an adult (sections 20 and 21 of the Criminal Justice and Courts Act 2015).
So the idea that someone in a caring role can be held accountable in this manner is nothing new.
It’s more than just an idea, too. It is being put into practice. A solicitor I contacted couldn’t uncover any cases of social workers being prosecuted for wilful neglect, but he did uncover plenty of nurses, care workers and care home owners being hauled into the dock. Community Care reported last year that 349 charges were made under the Mental Capacity Act offences in 2013-14, double the number in 2012-13.
That does give pause for thought. If the statute books were to view social worker the same as a nurse or care worker (or teacher, for that matter), where would that leave all the rhetoric about criminalising social workers? How can it be about criminalising social workers if it doesn’t treat them differently to any other profession?
Or are we saying social workers should, in fact, be treated differently, and that, unlike, say, a care worker in a care home, we don’t deserve the weight of a jail sentence hanging over our heads?
That’s an awkward question to tackle. Perhaps there’s a line that can be drawn between delivering care – which the existing offences focus on – and planning care, which Cameron’s proposed offence would relate to. Perhaps neglecting to provide a vulnerable adult or child with food, water and basic medical attention is not the same as neglecting to share urgent information about their welfare or act on clear evidence on risk following a home visit. Is that the distinction that puts social workers on one side of the law but dumps nurses and care workers on the other?
Or maybe we aren’t just fighting this for ourselves. Maybe the point we’re making is that no professional, irrespective of their uniform, should be forced to work with the threat of jail hanging over their heads?”
Well, okay. But before we go any further with that argument let’s take a look at the cases of the nurses and care workers who have been prosecuted for wilful neglect already.
Lasting harm and distress
You can read about these cases for yourself online, but what has been borne out in the courtroom is that professionals in caring roles sometimes treat those under their care horrendously. They handle them roughly, starve them, force-feed them, taunt, chastise, openly abuse them and cause lasting harm and distress. Victims are often older people with dementia.
I’m not saying I’d expect a social worker to act in this way, but then I wouldn’t have expected it of the care workers and other staff who have been prosecuted so far either. I certainly wouldn’t have expected it of an entire hospital – but then consider the Mid-Staffordshire Hospital scandal. The first independent inquiry into the scandal, by Sir Robert Francis, found “so many accounts of bad care, denials of dignity and unnecessary suffering”, including people being left in soiled sheets, failure to provide food and water, and rudeness or hostility to patients. But, due to the law at the time, nobody was ever invited into a courtroom to explain why they failed to act, hence the introduction of the offences under the Criminal Justice and Courts Act 2015.
Right or fair?
Take a moment to think about that. Is that right? Is it fair? Would we be willing to concede there are at least some occasions when the law, and specifically a charge of wilful neglect, is required to bring professionals to account?
It’s a tough one. If we’re willing to admit that in some tragic cases these sanctions are justified – and it is hard to argue otherwise – that leaves us with the dilemma of where to draw the line. At the moment, we’re emphatically arguing that the line should be drawn on the boundaries of our profession and encroach no further. Twelve thousand of us argued for that in a petition.
I find that a difficult stance to take before this proposal has even been consulted on. That isn’t to say I don’t understand the petition. When the PM announced this legislation he did look like a man showboating for the public. He did antagonise a lot of people. But that doesn’t mean what he was proposing was necessarily wrong.
Debate must move on
The debate needs to move beyond saying this legislation is wrong and start explaining why it’s wrong – if, indeed, it’s wrong at all. When compared to other laws, and when social work is compared to other professions, this new legislation isn’t nearly as controversial as it first seems. In fact it appears pretty consistent. Who knows, it may even be a good idea? But it certainly wouldn’t be our profession’s finest hour to dismiss it straight out of hand.