As the report into the Cornwall scandal showed, senior management can at times close their minds to the possibility that a culture of abuse can develop, says Ed Mitchell. But the legal consequences of such institutional complacency can be wide ranging for public bodies and the individuals involved. Here are some examples:
Civil compensation claims against the care provider for injuries caused by the negligent breach of a duty of care towards those being cared for. Cases tend to involve abuse in children’s homes but the same principles should apply for people with learning difficulties.
Human Rights Act 1998 violations. Public authorities are required to act in accordance with the provisions of the European Human Rights Convention specified in the Human Rights Act. The deliberate imposition or maintenance of abuse by a public care provider would clearly fall foul of the act; at the very least it would amount to the inhuman or degrading treatment prohibited by article three of the convention. The act, however, is capable of protecting vulnerable adults in a more subtle way. Article three has been interpreted as imposing a positive obligation upon state bodies to “take steps that could reasonably be expected of them to avoid a real and immediate risk of ill-treatment…of which they knew or ought to have had knowledge” (Z v UK, 1995). At the care provider level, it is suggested that this obligation requires reasonable steps to be taken to avoid the development of an environment in which abuse can flourish.
Care Standards Act 2000 offences. The report refers to the suggestion of the Commission for Social Care Inspection that at least some of the Cornwall facilities should have been registered as care homes under the act. If they had been registered, they would have been subject to regular independent inspections. It is an offence under section 11 of the act to carry on as an unregistered care home. What is often not appreciated is that section 30 allows proceedings to be taken against individual managers for this offence, as well as against the organisation providing care.
Disciplinary action by social care regulators. Failure to protect vulnerable adults might be grounds for removal of a social worker’s entry in the registers maintained by one of the UK’s four care councils. The social workers’ codes of practice states that social workers should “use established processes and procedures to challenge and report dangerous, abusive, discriminatory or exploitative behaviour and practice”.
Proven misconduct is one of the grounds for removal from the social care register and it is an offence for people who are not registered to present themselves as a social worker.
The role of the care councils will become even more significant if the government agrees to the suggestion that the requirement to register should be rolled out to the entire social care workforce.
Ed Mitchell is a solicitor and consultant editor of the Journal of Social Housing Law
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