1. This consultation outlines and invites views on the Scottish Government’s proposals for a new criminal offence of ill-treatment or wilful neglect of those receiving care or treatment in health and social care settings.
2. The Scottish Government’s proposal is to create an offence which is similar to those that presently exist in relation to mental health patients and adults with incapacity. The proposed offence would cover the wilful neglect or ill-treatment of anyone receiving care or treatment in a range of care services.
Introduction
3. People in Scotland receive high quality care and treatment in an array of health and social care situations, the delivery of which is carried out by a variety of dedicated professionals. The vast majority of staff employed in these settings work to the very best of their ability in providing these services, and do so in a manner that respects and protects the dignity and rights of individuals and their families. However, as we know from events elsewhere, for example, at Mid-Staffordshire NHS Foundation Trust, and at Winterbourne View, there can be instances where people receiving care are deliberately mistreated or neglected by those who have been trusted to look after them.
4. Although such incidents of deliberate neglect or mistreatment may be uncommon, we need to ensure that the criminal justice system is able to deal with these cases effectively when they arise.
5. There are existing offences of wilful neglect or ill-treatment in respect of mental health patients (set out in section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and in respect of adults with incapacity (set out in section 83 of the Adults with Incapacity (Scotland) Act 2000). Both of these offences cover distinct groups of people and the purpose of this consultation is to explore extending the scope of the offence of wilful neglect or ill-treatment beyond these groups.
6. The offence that we are proposing to create is not intended to cover instances of genuine error or accident.
7. Other remedies and means of redress, for example under the Human Rights Act 1998, or through formal complaints procedures, will remain available. These will continue to offer an appropriate and accessible route to dealing with situations of concern in which alleged neglect or ill-treatment cannot be attributed to deliberate misconduct.
8. This consultation document outlines five particular areas that we are seeking views on. In summary, these are: the type of care settings which the offence should cover; whether the offence should be based on conduct or outcomes; how the offence should apply to organisations as well as individuals; penalties; and equality issues.
(A) Which care settings should be covered
9. We believe that the new offence should cover both health and social care settings. The Scottish Government is currently progressing a programme of integration of adult health and social care in order to improve services for people who use them. Integration will increasingly ensure that the provision of health and social care across Scotland is joined-up and seamless. As we move towards more integrated services we therefore consider that the proposed offence should cover both kinds of settings.
10. Our proposal would cover those who work in providing care and treatment in health and social care, including such care or treatment provided in the following settings in both the statutory and Third Sector sectors (the list is not exhaustive):
NHS hospitals Independent hospitals Primary care services Adult care settings (including care homes, care at home, support services, housing support services, adult placement services, short breaks and respite care, services for people in criminal justice supported accommodation) Hospices
11. Annex A provides a list of the professions that we envisage being covered by the proposed offence.
12. In addition to some of the formal health and social care settings listed, there are also a range of informal arrangements for care where that care is provided on the basis of a friendship or a family relationship or friendship. Sometimes people speak about looking after others without realising that they are describing a caring situation.
13. In January 2014, the Scottish Government launched a consultation on legislation to further support carers and young carers across Scotland. Subject to Parliamentary approval, the proposed legislation would introduce a range of measures that will aim to make a meaningful difference to carers to improve their health and wellbeing and to ensure they have a life alongside caring. The Scottish Government will publish its response to the consultation in Autumn 2014.
14. Given the nature of unpaid caring where it is both carried by virtue of a contract of employment or other contract or as a volunteer, we do not feel that it would be appropriate for the offence to cover the types of care situation where there is no legal obligation or contract in place. Moreover, the care is being provided in a person’s home, not in a health or social care setting. If however, a cared-for person in neglected or mistreated by the unpaid carer then the existing offences in statute would apply.
15. We believe that the proposed offence should cover all formal situations where health care is provided for children, for example in NHS hospitals and independent hospitals. However, the range of social care services provided for children is different to those delivered for adults. We would like to hear your views on the types of social care services for children that you think should or should not be covered by our proposals.
16. We would also like to hear your views on whether the offence should cover people providing care or treatment on a voluntary basis on behalf of a voluntary organisation.
