Business and Regulatory Impact Assessment (BRIA) for the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill

Part 3 Offences of Wilful Neglect or Ill-Treatment in Health and Social Care Settings

Purpose and intended effect

34. Background

34.1 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. However, as we know from the 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.

34.2 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.

34.3 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 intentionally relate to narrowly defined groups of people and we feel that there is good reason to extend the offences of wilful neglect or ill-treatment beyond these groups.

35. Objective

35.1 The Scottish Government's proposal is to create offences similar to that which presently exists in relation to mental health patients. The proposed offences would cover the wilful neglect or ill-treatment of adults receiving care or treatment in a range of health and care services.

36. Rationale for Government intervention

36.1 No measure of deliberate neglect or mistreatment is acceptable and we feel that the criminal law should reflect this. Only certain groups are currently covered under the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000. In order to ensure consistency and address a current gap in legislation, the Scottish Government plans to introduce criminal offences in relation to wilful neglect or ill-treatment beyond these groups to cover all adults receiving care in a health or social care setting.

36.2 The Government has five objectives that underpin its core purpose. This legislation will contribute to two National Objectives: Healthier Scotland and Safer and Stronger.

It will also contribute to two of the 16 national outcomes:

• we live longer, healthier lives,
• we live our lives safe from crime, disorder and danger

37. Consultation

37.1 The legislation has been developed in a collaborative way involving colleagues from across and outwith the Scottish Government.

Within Government

37.2 We have worked with colleagues across the Scottish Government to develop this legislation. This includes, but is not restricted to, the following teams: Primary Medical Services; Integration and Reshaping Care; Children's Rights and Wellbeing; and Criminal Law and Licensing.

Public Consultation

37.3 The formal consultation ran for a period of 12 weeks from 10 October 2014 to 2 January 2015. In general, consultation respondents were supportive of the introduction of the offences and saw the legislation as helpful in offering a consistent level of protection to all individuals receiving health and social care, and in holding to account those who intentionally harmed or neglected these individuals. There were also high levels of agreement with the specific proposals set out in the consultation document, although respondents often also expressed a range of caveats or concerns.

Business

37.4 We met with a number of relevant organisations following our period of public consultation including care at home and care home providers, a dental practitioner, and representatives of two companies who run independent hospitals.

38. Options

Option 1: Do nothing

38.1 Under option 1 the situation would remain as it is at present. The offences outlined in the Mental Health (Care and Treatment) (Scotland) Act 2003 and in respect of adults with incapacity in the Adults with Incapacity (Scotland) Act 2000 would remain but there would be no expansion of protection to wider patient/care groups.

Option 2 : create offences of wilful neglect or ill-treatment in health and social care.

38.2 Under option 2 there would be new offences of wilful neglect or ill-treatment which would cover adult health and social care settings, both in the private and public sectors.

39. Sectors and groups affected

39.1 The new offences will apply to all those who provide health or social care for adults. All parts of the justice system, including the Scottish Prison Service, Police and the Crown Office and Procurator Fiscal Service (COPFS), would be affected.

40. Benefits

40.1 Option 1: there would be no action and therefore no additional benefits. There is a potential disbenefit that patients not covered by the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Adults with Incapacity (Scotland) Act 2000 could be at increased risk of suffering wilful neglect or ill-treatment.

40.2 Option 2: this would provide consistency for all users of health and social care, irrespective of their mental capacity or mental health. Everyone in all formal health and social care settings would be afforded access to justice.

40.3 The legislation and associated sanctions may have a deterrent effect. The prevention of ill treatment would then result in benefits for both individuals and society. Should incidents of wilful neglect and/or ill-treatment occur then the legislation would ensure that those responsible were held fully accountable.

40.4 It is not possible to quantify the benefits from deterrent effect, increased consistency and accountability.

41. Costs

41.1 Option 1: there would be no action and therefore no cost to government or to providers of health and social care services. There is a potential cost to those not covered by the Mental Health (Care and Treatment) (Scotland) Act 2003 or the Adults with Incapacity (Scotland) Act 2000 who could be at increased risk of suffering wilful neglect or ill- treatment.

41.2 Option 2: the offence should not create sizable additional costs or liabilities on individual practitioners and/or providers beyond what is normally expected of quality of care. Firms we engaged with during the development of the BRIA were of the view that wilful neglect or ill-treatment was well below the standard of care which they would expect to provide and so not a burden to them in financial or regulatory terms.

Number of cases.

41.3 It is difficult to provide an estimate of how many cases there will be as a result of the new offences. We have based our assumptions on costs relating to the existing offence in relation to people receiving mental health care or treatment. Tables 1 provides the number of prosecutions for wilful neglect or ill-treatment under mental health legislation.

Table 8 - Prosecutions for wilful neglect/ill-treatment under mental health legislation (where main offence)

	Mental Health (Care and Treatment) (Scotland) Act 2003, section 315			Mental Health (Scotland) Act 1984, section 105(1)(a) and (3)
Financial Year	Prosecutions	Guilty	Not Guilty	Prosecutions	Guilty	Not Guilty
2004-05				1	1	0
2005-06				0	0	0
2006-07				2	1	1
2007-08	1	1	0
2008-09	1	0	1
2009-10	2	2	0
2010-11	1	1	0
2011-12	3	2	1
2012-13	8	4	4
2013-14	4	1	3

Source: Scottish Government Court Proceedings Database

Number of people affected:

41.4 Within NHSScotland the number of patients treated in acute specialities in 2012/13 was 698,369^[93]. Laing and Buisson estimate that across the UK, 1.64 million patients were admitted for surgical procedures in independent hospitals. Pro rata by population this suggests around 136,000 patients in Scotland. However, we know that private health insurance coverage is lower in Scotland than across many parts of the UK and compared with the UK average (8.5% vs. 12%). An estimate of 95,000 is therefore likely to be more realistic and may still be an overestimate. This gives an estimate of 794,000 inpatients across the public and private sector.

41.5 The Care home census of 2013 showed nearly 36,600 individuals resident at the time. These are mainly elderly, over 65 years, but this number includes adults of working age. Excluding those with mental health problems or learning disability leaves 33,687. Around 50,400 of those aged over 65, and 10,500 younger adults received a care home service in 2012-13.^[94] Again, around 4,500 of the younger adults have mental health or learning disabilities: excluding them gives a total across residential and home care of approximately 90,000 individuals.

41.6 It is acknowledged that many of the above individuals may also access hospital services in the course of a year so this may be an overestimate.

41.7 GP services, dentists, A&E attendances and ambulance journeys have been excluded from this estimate (which may counter the previous overestimate) as it is considered that there is a lower risk of wilful neglect or ill-treatment, mainly due to the relatively short time that would be spent in those settings although the offences will apply in these settings.

41.8 So although not exhaustive, this initial estimate suggests that around 884,000 additional users of health and social care services in Scotland would be covered by extending the legislation.

41.9 The rate of prosecutions for the existing mental health offence has been used in producing an estimate for the number of prosecutions for the new offence. Taking an average of 2 prosecutions per year for the section 105 and 315 offences, per 15,401 patients receiving mental health care or treatment, and then applying this rate to an estimated 884,000 additional users of health and social care services in Scotland who would be covered by extending the legislation, gives an estimate of a potential 100 prosecutions per year. However, this is likely to be an overestimate as those receiving mental health care or treatment are likely to be more vulnerable and therefore at greater risk of suffering ill-treatment or wilful neglect. There are also possible differences in reporting rates which are not taken into account in this calculation.

Scottish Government:

41.10 There may be some small costs associated with informing the public of the new offences, similar to the publicity provided for the provisions of the Adult Support and Protection (Scotland) Act 2007.

SG/NHS Boards/providers

41.11 NHS Education for Scotland (NES) would need to consider if it was appropriate to update existing staff training materials to reflect the new offences.

Justice system

41.12 Should there be additional cases identified under the extension of the legislation then there would be costs for the police, Crown Office and Procurator Fiscal Service (COPFS), the Scottish Courts and Tribunals Service (SCTS), the Scottish Prison Service (SPS), the Scottish Legal Aid Board (SLAB) and defendants.

41.13 Table 9 sets out the average costs of criminal procedures (assuming all cases are heard in the Sheriff Court). For the new offences, based on calculations of an additional 100 cases per year, and assuming the same split between summary and solemn procedure, the additional cost to the criminal justice system would be around £300,000 per year (as set out in tables 9, 10 and 11). It currently costs £33,153 per year to keep a person in custody. It is difficult to usefully predict how many people will be imprisoned as a result of the new offences, but if one person is held in custody for a period of three years then this would cost £100,000. While sentencing will be for the courts, it is expected that more minor offences will not attract a prison sentence and so the overall impact on prisons will be minimal.

Table 9 - Unit cost of criminal procedures

	Average prosecution costs per procedure (COPFS)	Average court costs per procedure (SCTS)	TOTAL (excluding legal aid costs)	Average legal assistance costs per procedure (SLAB)	TOTAL (including legal aid costs)
Sheriff Court Solemn Procedure	£5158	£1743	£6901	£1892	£8793
Sheriff Court Summary Procedure	£342	£357	£699	£612	£1311

Source: Costs of the Criminal Justice System in Scotland Dataset (2013)

Table 10 - Costs of estimated 100 cases per year

Procedure	Number of cases	Cost per case*	TOTAL*
Sheriff Court Solemn Procedure	21	£6901 - £8793	£173,301 - £184,653
Sheriff Court Summary Procedure	79	£699 - £1311	£91,329 - £103,569
TOTAL COST			£264,630 - £288,222

*Ranges illustrate the differences in costs between 75% and 100% of defendants receiving legal aid.
Totals may not add up due to rounding.

Table 11 - Breakdown of estimated costs by organisation

	Sheriff Solemn*	Sheriff Summary*	TOTAL*
Number of cases	21	79	100
COPFS	£108,318	£27,018	£135,336
SCTS	£36,603	£28,203	£64,806
SLAB	£28,380 - £39,732	£36,108 - £48,348	£88,080
Total	£173,301 - £184,653	£91,329 - £103,569	£264,630 - £288,222
Totals (rounded)	£173,000 - £185,000	£91,000 - £104,000	£265,000 - £288,000

*Ranges illustrate the differences in costs between 75% and 100% of defendants receiving legal aid.
Totals may not add up due to rounding.

Defendants

41.14 Should prosecutions result from the legislation, defendants, unless they are eligible for legal aid, may incur the costs of mounting a defence. We are not, at present, able to quantify these. Tables 10 and 11 provide figures based on 75% and 100% of defendants claiming legal aid.

42. Scottish Firms Impact Test

42.1 This proposal is designed to reinforce a culture of safety and quality for people in Scotland in all health and social care settings and secure access to justice for those ill-treated or neglected. There has been consultation with five Scottish firms who may be affected by these proposals, although it should be noted that the proposals place no duties on business. The firms were of the view that wilful neglect or ill-treatment was well below the standard of care that they would expect to provide and therefore not a burden to them in financial or regulatory terms. A view was expressed that some firms may want to publicise the new offences to staff as part of their training material but that any cost in doing so was likely to be minimal.

43. Competition Assessment

1. Will the proposal directly limit the number or range of suppliers?

The proposal will not directly affect the number or range of suppliers of health and/or social care. The legislation will apply to all adult health and care settings.

2. Will the proposal indirectly limit the number or range of suppliers?

The proposal will not indirectly affect the number or range of suppliers of health and/or social care. The legislation will apply to all adult health and care settings. It does not constitute a barrier to entry into the market.

3. Will the proposal limit the ability of suppliers to compete?

The legislation will apply to all adult health and care settings. Much of the activity covered will be within NHSScotland. It will have no impact on competition within the health and social care sector.

4. Will the proposal reduce suppliers' incentives to compete vigorously?

The legislation will apply to all adult health and care settings. Much of the activity covered will be within NHSScotland. Suppliers within the private sector will all be equally affected. There will be no impact on their ability to compete.

44. Test run of business forms

44.1 No new forms for business are anticipated.

45. Legal Aid Impact Test

45.1 The proposals create new criminal offences of wilful neglect or ill-treatment and therefore will affect the Legal Aid budget. However, we do not see a major impact on the legal aid fund or on SLAB's management of applications.

46. Enforcement, sanctions and monitoring

46.1 The provisions will detail the penalties for those individuals and organisations convicted of the offences.

47. Implementation and delivery plan

47.1 Enforcement will be carried out by Police Scotland and the Crown Office and Procurator Fiscal service. Subject to completing the Parliamentary process, the provisions will be commenced in 2016.

48. Post-implementation review

48.1 A review process will be considered.

49. Summary and recommendation

49.1 Option 2 is the option on which the Scottish Government has consulted and now intends to proceed with.

• Summary costs and benefits table

Option	Total benefit per annum: - economic, environmental, social	Total cost per annum: - economic, environmental, social - policy and administrative
1	No benefit.	No cost.
2	Increased access to justice for those who have been ill-treated or wilfully neglected in health and social care settings. Possible deterrent effect.	Estimated additional cost to the criminal justice system of £300,000. Negligible cost to business as the offence is not a regulatory burden.