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

Defining the Offence

(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 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 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 not carried out 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 is 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.

QUESTIONS:

Do you agree with our proposal that the new offence should cover all formal health and adult social care settings, both in the private and public sectors?

Do you agree with our proposal that the offence should not cover informal arrangements, for example, one family member (generally termed unpaid carer or carer) caring for another?

Should the new offence cover social care services for children, and if so which services should it cover? Please list any children's services that you think should be excluded from the scope the offence and explain your view.

Should the offence apply to people who are providing care or treatment on a voluntary basis on behalf of a voluntary organisation, whether on a paid or unpaid basis?

(B) Basing the offence on conduct or outcomes

17. We believe that the offence should be based on the conduct of the individual or organisation rather than based on any harm caused as a result of their actions.

18. No measure of deliberate neglect or mistreatment is acceptable and we feel that the criminal law should reflect this. If a threshold of harm was set out in legislation then this could give rise to a situation where two people were subjected to the same ill-treatment or neglect by the same care worker but because one was more seriously harmed than the other, a prosecution could only be brought in respect of the more seriously harmed individual. Furthermore, setting a harm threshold may give rise to uncertainty about when the offence would apply.

19. Neither of the offences in the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults with Incapacity (Scotland) Act 2000 define a required level of harm and therefore to establish one in constructing the new offence would create an inconsistency.

20. Therefore, we propose that the offence should apply where someone has wilfully neglected or ill-treated another in the settings described, regardless of the harm caused by that neglect or ill-treatment. We would like to hear your views on whether or not this is the most suitable approach to take.

QUESTION:

Do you agree with our proposal that the new offence should concentrate on the act of wilfully neglecting, or ill-treating an individual rather than any harm suffered as a result of that behaviour?

(C) Applying the offence to organisations

21. In order to establish an offence that can be consistently applied across health and social care settings we are considering whether or not the new offence should apply to organisations providing care or treatment, as well as individuals.

22. In terms of existing legislation, the offence of wilful neglect/ill-treatment in section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 can apply to organisations, as well as individuals, in specific circumstances. We believe that it is appropriate for the new offence to apply to organisations too but we would like to hear your views on how you think this should be applied.

QUESTION:

Do you agree with our proposal that the offence should apply to organisations as well as individuals?

How, and in what circumstances, do you think the offence should apply to organisations?

(D) Penalties

23. We propose that the penalties for the new offence should reflect those currently set out in legislation for the existing offences relating to mental health patients and adults with incapacity. Both of these offences attract the same penalties:

• On summary conviction: imprisonment for a maximum term of 12 months^[1], or to a fine not exceeding the statutory maximum (currently £10,000) or both
• On conviction on indictment: imprisonment for a maximum term of 2 years or to a fine (of an unlimited amount), or both

24. In respect of individuals, we do not consider there to be any clear reasons to depart from the penalties already established for wilful neglect/ill-treatment.

25. In respect of organisations there may be other penalties which could be considered. We are keen to hear if you think the proposed penalties are sufficient and if you think that organisations should be subject to penalties other than fines.

QUESTION:

Do you agree that the penalties for this offence should be the same as those for the offences in section 315 of the Mental Health (Care and Treatment) (Scotland) Act 2003 and section 83 of the Adults with Incapacity (Scotland) Act 2000?

Should the courts have any additional penalty options in respect of organisations? If so, please provide details of any other penalty options that you think would be appropriate.

(E) Equality considerations

26. The Scottish Government's Quality Strategy for NHSScotland asserts our aim of delivering safe, effective and person-centred care. To do so we need to understand the needs of each person who uses health and social care services. Therefore, in the development of our proposed offence we will ensure that we identify any equality impacts for people with a protected characteristic (as defined by the Equality Act 2010).

27. We are undertaking an Equality Impact Assessment (EQIA) which will allow us to fully explore these issues. The results of the EQIA will be published on the Scottish Government's website when completed.

28. This consultation provides an opportunity to obtain stakeholders' views on any possible equality impacts, including impacts on those with protected characteristics. The responses to our consultation will assist in our development of the EQIA.

QUESTION:

What issues or opportunities do the proposed changes raise for people with protected characteristics (age; disability; gender reassignment; race; religion or belief; sex; pregnancy and maternity; and sexual orientation) and what action could be taken to mitigate the impact of any negative issues?

(F) Responding to this consultation paper

29. We are inviting written responses to this consultation paper by 2 January 2015.

30. Please send your response with the completed Respondent Information Form (see "Handling your Response" below) to:

wilfulneglectconsultation@scotland.gsi.gov.uk

or by post to:

31. If you have any queries contact Dan Curran on 0131 2444894.

32. We would be grateful if you would use the consultation questionnaire provided or could clearly indicate in your response which questions or parts of the consultation paper you are responding to as this will aid our analysis of the responses received.

33. This consultation, and all other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website at http://www.scotland.gov.uk/consultations

34. The Scottish Government has an email alert system for consultations, http://register.scotland.gov.uk This system allows stakeholder individuals and organisations to register and receive a weekly email containing details of all new consultations (including web links). It complements, but in no way replaces SG distribution lists, and is designed to allow stakeholders to keep up to date with all SG consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register.

Handling your response

35. We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form enclosed with this consultation paper as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential, and we will treat it accordingly.

36. All respondents should be aware that the Scottish Government are subject to the provisions of the Freedom of Information (Scotland) Act 2002 and would therefore have to consider any request made to it under the Act for information relating to responses made to this consultation exercise.

Next steps in the process

37. Where respondents have given permission for their response to be made public and after we have checked that they contain no potentially defamatory material, responses will be made available to the public in the Scottish Government Library (see the attached Respondent Information Form), these will be made available to the public in the Scottish Government Library by 21 January 2015 and on the Scottish Government consultation web pages by 30 January 2015. You can make arrangements to view responses by contacting the SG Library on 0131 244 4552. Responses can be copied and sent to you, but a charge may be made for this service.

What happens next?

38. Following the closing date, all responses will be analysed and considered along with any other available evidence to help us reach a decision on creating an offence of wilful neglect/ill-treatment. We aim to issue a report on this consultation process by Easter 2015.

Comments and complaints

39. If you have any comments about how this consultation exercise has been conducted, please send them to the address given in the section 'Responding to this consultation paper'.

(G) The Scottish Government Consultation Process

40. Consultation is an essential and important aspect of Scottish Government working methods. Given the wide-ranging areas of work of the Scottish Government, there are many varied types of consultation. However, in general, Scottish Government consultation exercises aim to provide opportunities for all those who wish to express their opinions on a proposed area of work to do so in ways which will inform and enhance that work.

41. The Scottish Government encourages consultation that is thorough, effective and appropriate to the issue under consideration and the nature of the target audience. Consultation exercises take account of a wide range of factors, and no two exercises are likely to be the same.

42. Typically Scottish Government consultations involve a written paper inviting answers to specific questions or more general views about the material presented. Written papers are distributed to organisations and individuals with an interest in the issue, and they are also placed on the Scottish Government web site enabling a wider audience to access the paper and submit their responses. Consultation exercises may also involve seeking views in a number of different ways, such as through public meetings, focus groups or questionnaire exercises. Copies of all the written responses received to a consultation exercise (except those where the individual or organisation requested confidentiality) are placed in the Scottish Government library at Saughton House, Edinburgh (K Spur, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD, telephone 0131 244 4565).

43. All Scottish Government consultation papers and related publications (eg, analysis of response reports) can be accessed at: Scottish Government consultations (http://www.scotland.gov.uk/consultations)

44. The views and suggestions detailed in consultation responses are analysed and used as part of the decision making process, along with a range of other available information and evidence. Depending on the nature of the consultation exercise the responses received may:

• indicate the need for policy development or review
• inform the development of a particular policy
• help decisions to be made between alternative policy proposals
• be used to finalise legislation before it is implemented

45. Final decisions on the issues under consideration will also take account of a range of other factors, including other available information and research evidence.

46. While details of particular circumstances described in a response to a consultation exercise may usefully inform the policy process, consultation exercises cannot address individual concerns and comments, which should be directed to the relevant public body.