‘If nurses or care workers can be jailed for wilful neglect, then why not social workers?’

David Cameron's proposal for social workers to be prosecuted for wilful neglect would simply bring the profession in line with other caring roles, argues Matt Bee

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).

Nothing new

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?

Awkward question

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.

More from Community Care

14 Responses to ‘If nurses or care workers can be jailed for wilful neglect, then why not social workers?’

  1. Penelope Welbourne October 14, 2015 at 9:31 am #

    Matt Bee did not explain how he thinks criminal neglect might be defined, at the ‘planning stage’. He has no duty to do so, of course, but this is a bit of a key issue here. Those emotive examples from health care were not failures of planning, but delivery. He explains that we already have legal means to address serious failures of delivery of care. To be neglectful to the point of being criminal, a failure of planning would presumably have to include a wilful failure, something more than making a judgment that had bad consequences, even when with hindsight it might be said this was an error of judgment. There is already a system in place for removal of social workers from professional registration; how might this hypothetical legislation define criminal negligence when planning social work interventions? Then he might like to consider whether this hypothetical legislation would, on the evidence we have, be of any use in preventing child abuse and neglect by parents and carers. Is there any evidence that the conduct of professionals involved in cases where children have suffered serious harm would meet that criminal threshold? I am not at all outraged by the idea that professionals should be held accountable, I support it, but I do wonder how much use such legislation would be in making children safer. Is this really a serious attempt to address a real problem? Perhaps we will have a better idea when we have more detail as to how the law might be framed, and then it would not surprise me if we found these ‘tragic sanctions’ are both less of a threat (because criminal neglect has to have components I think are very rare even in tragic cases) and, crucially, less likely to be helpful to children and families, than Matt Bee presumably hopes.

  2. Jane Milner October 15, 2015 at 11:22 am #

    Social care has always been seriously underfunded and in today’s Tory Britain, that is now considerably worse. In my opinion, there are always some ‘rotten apples’ in every ‘group/barrel’ of people. Safeguards have to be put in place to protect the vulnerable but NOT on the back of a fundamental lack of resources – time, finance, equipment etc. Resources are vital – as they continue to be cut many will suffer and some will die. Why not just prosecute the Government for with-holding resources?

    • Jackie Johnston October 15, 2015 at 8:31 pm #

      Here here..

    • Paula McFadden October 19, 2015 at 11:16 am #

      The main difference between social work and nursing is that nursing staffing levels are typically prescribed per population whereas social work staffing levels is generally not defined with the same rigorous analysis. This means that social workers are often working beyond capacity in order to perform critical roles in our society. Furthermore, due to the particular stresses of the child protection role, including bureaucracy, excess hours, variable levels of supervision, turnover rates are endemic which means graduates (those with the least experience) are holding responsibility in critical child protection cases. For social workers to be treated with equal measures as nursing and other professionals for poor practice or wilful neglect, the government would firstly need to ensure that there is funding in place for the right ratio of social workers to cases and hold employers to account if this is not the case. In all professions the chances of having individual examples of poor practice is bound to exist and obviously need to be dealt with! However I think we need to even the playing field before we can make these judgements.

  3. Martin Porter October 15, 2015 at 1:11 pm #

    I’m confused by your argument. If you are saying that there are general safeguards that apply to all professions, then Social Workers are already covered by law and therefore passing a specific law IS treating us differently.

    Also, if these general laws apply to social workers as much as other professions, and it is only nurses and care assistants who are coming up before the courts, surely that shows there no need for the targeting specifically of social workers.

    Unless you can show that social workers are someone exempt from current legislation, or that there are social workers getting away with abusing their power (as opposed to just obeying the law) I don’t see what your argument actually is.

  4. Andrew Grant October 15, 2015 at 1:51 pm #

    ‘If nurses or care workers can be jailed for wilful neglect, then why not social workers?

    And why can’t the ignorant politicians that allow more expectation to be passed on to social workers and cut social care funding with an expectation that it should function on a shoe string be jailed?

    Ignorance/arrogance? What ever it is, it’s inexcusable.

  5. Tom Patterson October 15, 2015 at 6:42 pm #

    Mr Cameron is employed in a caring role. He has the job of legislating for the welfare of vulnerable people.

    He has the power to remove the means of feeding and sheltering the children of failed asylum seekers.

    He is wilfully neglecting them by putting through legislation to make them destitute.

    Should he go to jail?

    Social Workers don’t have the power to stop him passing this legislation, so should they go to jail?

    If not, then why should they go to jail for failing to prevent other neglect or harm perpetrators?

    I suggest that only if they are perpetrating the harm themselves should social workers face prosecution.

    Which brings us back to the case of David Cameron and what he is doing to asylum seekers children.

    • David Steare October 22, 2015 at 12:29 pm #

      Tom’s point seems critical here and relates to the differences in power between children, parents, relatives, individual social workers, team managers, senior social care managers, HCPC, council members, parliamentarians, ministers of state, civil servants, senior civil servants etc. on the one hand and the differences in power between individual social workers, social care managers, G.P.’s, paediatricians, consultant doctors, nurses, specialist nurses, nurse consultants, teachers, head teachers, specialist teachers, SENCOs, police officers, specialist police officers, solicitors, barristers, magistrates, judges, senior judges etc.
      When we consider how many key decisions are taken by individual social workers alone, I wonder how the individual social worker’s responsibilities can be separated out from the responsibilities of others?
      Who can remember the slogan about social oppression from the mid 80s – whoever has the power gets to define the situation?

  6. G October 15, 2015 at 8:56 pm #

    Why is it not the same for politicians they do not keep their promises and do not keep the public safeguarded

  7. James October 16, 2015 at 10:13 am #

    It’s concerning that the author isn’t viewing this in wider context: a government that is opposed to the values of social work – that has crippled its funding and resources, that aims to privatise as many functions as possible, and is changing the fundamental nature of the state – is now threatening not only the career but liberty of practitioners. This government, and wider economic consensus, is causing intentional structural decay to public services in preparation for outsourcing. The legislation tries to distract us from the real issues of austerity and reductionism that we’re facing, and individualises these problems, proportioning blame on workers. I feel for my colleagues in childrens’ services who work under horrendous conditions and may now have threat of incarceration. Of course, they will give us sensationalised examples – ‘it’s common sense that Mr/Mrs X must go to jail for offence X’ – but, mirroring anti-terror or other draconian measures, it evolves and becomes frequently applied in other contexts.

  8. Sharon villaccio October 18, 2015 at 9:55 am #

    No one is above the law..so why not?

  9. Beth October 18, 2015 at 6:18 pm #

    So presumably we will be seeing other professions such as school workers, police officers etc being prosecuted and imprisoned if they fail children also. Social workers are often used in the media as scapegoats for tragic incidents but let’s not forget they are not the single and only point of contact or involvement. Often there are many people and services all with a duty to protect and safeguard involved, so I would hope that it is not just adding social workers to the list without due consideration for all involved.

  10. April October 20, 2015 at 10:59 am #

    I have serious objections to alot of these comments. First of all if anyone here thinks that nurses are fully staffed wake up! Nurses never have enough staff work long hours due to poor staffing. The nurse to patient ratio puts demands on them based on the accuity of each patient. And nurses are still held accountable. They are held accountable personally, not the hospital who failed to call for additional staff. So when there is neglect not just willful neglect the nurse is held responsible. They are also held responsible for poor judgement calls. So if social workers think they should not be held accountable for the children they care for like nurses are held accountable for the patients they care for than there is something wrong here. But also there are far too many children in state “care” that do not need to be there and that is also part of the problem and if social workers would screen them properly there case load would not be so high. Most children are in foster care not because of abuse, most kids are there because of “potential” neglect. And high turn over rates for social workers. You can’t use that excuse either, look at the nursing profession and there turn over rate. If social workers were held accountable than maybe the system might actually improve for children and there wouldn’t be so many case of children being molested and abused in the foster homes that were supposed to save them not harm them while their case worker looks the other way.

  11. Lee November 9, 2015 at 9:58 pm #

    As a profession we need to engage in this discussion, debate both the merit and weaknesses in the proposals. We are an accountable profession, serving vulnerable children, young people, adults and families.