Consultation on Proposals for an Offence of Wilful Neglect or Ill-Treatment in Health and Social Care Settings

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.