Social care staff and providers would face prosecution for ill-treating or wilfully neglecting adults or children in their care, under government proposals designed to fill a gap in the law.
Under the plans, care home, home care or day care providers, or their staff, would be liable for the offence, which would be punishable by a prison term of up to five years for individuals, or significant fines, public reprimands and the removal of directors for organisations.
The proposals, which would also apply to health services, are designed to fill a gap in the law left by section 127 of the Mental Health Act 1983 and section 44 of the Mental Capacity Act 2005. These created offences of ill-treatment or wilful neglect for people with mental disorders committed by staff or guardians, or people who lack capacity to take relevant decisions by care staff or attorneys or deputies appointed to take decisions for them.
The proposed offence is designed to protect service users who do not have a mental disorder and do not lack capacity to take relevant decisions. They would also address calls for providers to face prosecution for corporate neglect by making organisations liable if the way they are managed or organised causes a person to be ill-treated or neglected and amounts to a gross breach of a relevant duty of care.
Though the plans originate from proposals in a review into improving patient safety in the NHS by Don Berwick, they have been extended to cover adults’ and children’ social care services, though not informal care arrangements.
The government has estimated that there would be about 240 prosecutions a year once the offence has had time to bed in. The consultation closes on 31 March and to have your say email WN.consultation@dh.gsi.gov.uk
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At present there is a criminal investigation by Liverpool Police against two support workers/agency. My adult non verbal, disable son, in their care received a serious injury resulting in 6 operations The file going to the CPS will be assault and wilful neglect under section 44 of the mental capacity act.
‘Professionals’ and I use the word loosely should not be able to hide behind the fact a disabled person can’t vocalise what happened. I welcome the above it’s about time..
This should be an automatic option to all in caring professions, including GP’s.
Its already in place. The person who wrote the article is uninformed.
Hi Kim
Thanks for the comment. The government is consulting on what they see as a gap in the law left by section 44 of the Mental Capacity Act and section 127 of the Mental Health Act in respect of people receiving care who do not have a mental disorder and do not lack capacity to take relevant decisions. They seem to think that the new law would result in an additional 240 prosecutions a year. People may well respond to the consultation to say that there is no such gap or that the better enforcement of section 44 is more of a priority but there does seem to be a perception in government and beyond that there is such a gap.
Thanks again,
Mithran
Whilst this is a welcome development, I would seriously question the extremely short consultation time scale applied. Surely it would be better for all concerned to have a meaningful debate/consultation over this? What possible justification can there be not to do this? I can’t help but see the irony in all of this, when government are expending so much time and effort in trying to fight the growing calls supporting Paul Burstow MP with his Care Bill amendment for Powers of Access.