New offence of ill-treatment or wilful neglect

Introduction

1. This consultation sets out our proposals for the development of a new, clear and specific criminal offence of ill-treatment or wilful neglect of patients and service users. This offence would apply in both England and Wales, as criminal law is not devolved in Wales.

2. We want to hear your views on each of the proposals within this document, which will inform the development of the precise formulation of the statutory offence. Following the conclusion of this consultation, we will be seeking to legislate as soon as Parliamentary time allows.

Background

3. On 9 June 2010, the then Secretary of State for Health, Andrew Lansley, announced a full public inquiry into the role of the commissioning, supervisory and regulatory bodies in the monitoring of Mid Staffordshire NHS Foundation Trust. The Inquiry was chaired by Robert Francis QC, and built on the work of his earlier independent inquiry into the care provided by the Trust between January 2005 and March 2009.

4. Robert Francis published his final report into the events at Mid Staffordshire NHS Foundation Trust in February 2013. Part of the Government’s immediate response was to establish a number of specific reviews focussing on issues raised in his report, and Professor Don Berwick was asked to chair an independent review on improving the safety of patients in England.

5. The National Advisory Group on the Safety of Patients in England (“the National Advisory Group”) was established to support Professor Berwick with the review. In its final report1, published in August 2013, the National Advisory Group focussed on the importance of achieving a careful balance between culture changes which support openness and transparency and supporting staff and organisations to learn from error and improve their practice; and the need to assure accountability to the patient.

Automatically looking for someone to blame following an accident or genuine mistake would not support those cultural changes. Nevertheless, the National Advisory Group also accepted that there needs to be a system in place to deal with those cases where the act or omission is not accidental, but amounts to ill-treatment or wilful neglect.

6. In that context, the National Advisory Group identified a small but significant gap in existing legislation. Currently there are specific criminal offences which address wilful ill-treatment or neglect of children, and ill-treatment or wilful neglect of adults who lack capacity3 or those subject to the Mental Health Act 19834, at the hands of those entrusted with their care. However, there is no equivalent specific offence in relation to adults with full capacity. The National Advisory Group acknowledged that there is a range of existing regulatory and legislative mechanisms that could apply to such adults in some cases, saying “indeed there already exists a series of robust sanctions and powers available to regulators such as CQC and the Health and Safety Executive”. It nevertheless took the view that there is a role for this new offence.

7. The National Advisory Group therefore recommended the creation of a new statutory offence for those “found guilty of wilful or reckless neglect or mistreatment of patients”. Its view was that this new offence, analogous to similar offences that already exist, would act as a deterrent and, more importantly, place the ill-treatment or wilful neglect of all patients on an equal footing in terms of the sanctions available.

8. The Government published its full response to the Francis report on 19 November 20135. In it, as well as responding in detail to every recommendation from that report, the Government also responded to the recommendations made by all the specific reviews established subsequently. It accepted the National Advisory Group’s recommendation on a wilful neglect offence, and committed to developing proposals for public consultation on the precise formulation of the new offence, and the sanctions, as soon as possible, with a view to legislating as soon as Parliamentary time allows.

The recommendation

9. The full details of the recommendation of the National Advisory Group can be found in its report. However, key elements are the creation of a new “general offence of wilful or reckless neglect or mistreatment” which:

- may be committed by both organisations and individuals;

- applies where the individual or organisation wilfully neglects or ill-treats someone in a way that causes serious harm or death; and

- creates penalties for the offence which are equivalent to those under section 44 of the Mental Capacity Act 2005.

10. Section 44 of the Mental Capacity Act 2005 created an offence of ill-treating or wilfully neglecting a person who lacks capacity, or whom the offender reasonably believes to lack capacity. The offence may only be committed by certain persons who have a caring or other specified responsibility for the person who lacks capacity. The penalties are, on summary conviction up to 12 months imprisonment, a fine not exceeding the statutory maximum, or both, or on conviction on indictment up to 5 years imprisonment or a fine, or both. The full text of section 44 is at Annex A.

11. The National Advisory Group described what it meant by “wilful”, saying that in its view neglect is wilful if it is “intentional, reckless or reflects a ‘couldn’t care less attitude’”. We do not propose to define “wilful” in this legislation as it has a widely accepted meaning, established by case law.6 Essentially, the “wilful” element connotes acting deliberately or recklessly.

12. The National Advisory Group also made it clear that genuine errors or accidents should never lead to prosecution, but should be used as learning tools to improve the quality of services in future. The Government fully agrees with that approach, which accords with the current state of the law.

The Government’s position

13. The Government accepted the finding of the National Advisory Group that there is a gap in the existing legislation. We also agree that whilst alternative statutory and common law offences do exist7, it is not certain that they could cover every situation that a specific offence of ill-treatment or wilful neglect would. So, it is right to create the proposed new offence in order to provide consistency of approach in relation to ill-treatment and wilful neglect.

14. There have been several cases recently where employees have been charged and convicted of ill-treatment and/or wilful neglect of vulnerable people in their care. But these prosecutions have generally been brought under section 44 of the Mental Capacity Act 2005, or section 127 of the Mental Health Act 1983, as the victims either lacked capacity or were subject to the 1983 Act. For example, the prosecutions following the Winterbourne View scandal were brought under section 127 of the Mental Health Act 1983.

15. It is entirely possible that a situation could arise where two patients, one with full capacity and one without, are being subjected to the same type of conduct, by the same person with the same intent, but a prosecution for ill-treatment or wilful neglect could only be brought in respect of the patient without capacity. Clearly, this is a situation we would want to avoid.