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

Annex B - Partial Business and Regulatory Impact Assessment

Title of Proposal

Offence of Wilful Neglect or Ill- treatment in Health and Social Care Settings

Purpose and intended effect

• Background

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.

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.

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 offence of wilful neglect or ill-treatment beyond these groups.

• Objective

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 health and care services.

• Rationale for Government intervention

No measure of deliberate neglect or mistreatment is acceptable and we feel that the criminal law should reflect this. Only certain groups are currently protected 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 considers it should introduce a criminal offence of wilful neglect or ill-treatment beyond these groups to cover all individuals receiving care in a formal health or social care setting.

The Government has five objectives that underpin its core purpose. This legislation will contribute to the National Objectives of Healthier Scotland, through improving health care quality, 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

Consultation

The legislation will be developed in a collaborative way involving colleagues from across and outwith the Scottish Government.

• Within Government

We are working 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. This approach ensures that current Scottish Government policy will be reflected in the on-going development of this legislation and will ensure that all appropriate stakeholders and stakeholder groups can offer comment of these proposals.

• Public Consultation

The formal consultation will run for a period of 12 weeks from 10 October 2014.

• Business

We will identify relevant organisations to meet with during the consultation period and update this section at Final BRIA stage.

Options

Option 1: Do nothing

Under option 1 the situation would remain as it is at present. The offences outlined within 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 groups.

Option 2 : create an offence of Wilful Neglect or Ill-treatment in Health and Social Care.

Under option 2 there would be a new offence of wilful neglect which would cover all formal health and social care settings, both in the private and public sectors.

Sectors and groups affected

The new offence would cover all care in delivered in the following settings and services:

• NHS hospitals
• Independent hospitals
• Hospices
• Primary care services
• Adult care homes
• NHS ambulance services
• Independent ambulance services

The legislation would apply to all providers of health and social care services and patients in all these settings would be afforded the protection of this legislation. This in turn, means that all parts of the justice system including the police and the Crown Office and Procurator Fiscal Service (COPFS) could be affected.

Benefits

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.

Option 2: this would provide consistency for patients, irrespective of their mental capacity or mental health. All patients in all formal health and social care settings would be afforded the protection of legislation.

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.

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

Costs

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 patients 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.

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. However we know that, very occasionally, there will be examples of behaviour that can be classed as wilful neglect or ill-treatment. It is these rare occurrences that the legislation seeks to both deter and address.

Number of cases.

It is difficult to estimate the number of cases that might be brought forward under any new legislation.

Number of patients affected:

Within NHSScotland the number of patients treated in acute specialities in 2012/13 was 698,369^[2]. 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.

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.^[3] 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 approx. 90,000 individuals.

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.

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, mainly due to the relatively short time that would be spent in those care settings although the legislation will cover these.

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.

In terms of the potential number of additional cases that might be generated there is very little evidence on which to base an estimate. There have been very few prosecutions under the Mental Health (Care and Treatment) (Scotland ) Act 2003 and none under the Adults with Incapacity (Scotland) Act 2000.

Scottish Government:

There will be costs associated with the provision of information on the new legislation. The Government would need to consider whether it wished to undertake a public education campaign to make people aware of any change in the law. There would also potentially be costs involved in providing literature/guidance for care providers including care homes and the range of health professionals.

SG/NHS Boards/providers

The Scottish Government and NHS Education for Scotland (NES) would need to consider if it was necessary to introduce any additional staff training.

Justice system

Should there be additional cases identified under the extension of the legislation then there could be costs for the police, Crown Office and Procurator Fiscal Service (COPFS) and defendants. Unless the number of cases proved to be substantial it is assumed that these would have minimal impact on the justice system and could be incorporated into normal workloads.

Defendants

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.

Scottish Firms Impact Test

This proposal is designed to reinforce a culture of safety and quality for patients in Scotland in all health and social care settings. There have, to date, been no consultations with Scottish firms who may be affected. The consultation which this document accompanies actively seeks the views of businesses who may be affected by these proposals and who the consultation document has been forwarded to..

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 health and care settings and all formal care givers.

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 health and care settings and all formal care givers. 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 health and care settings and all formal care givers. 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 health and care settings and all formal care givers. 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.

Test run of business forms

No new forms for business are anticipated.

Legal Aid Impact Test

As part of the Bill development process we will liaise with the Scottish Government Access to Justice Team to gauge whether any proposed legislation will affect Legal Aid. This will be detailed within the final BRIA.

Enforcement, sanctions and monitoring

It is proposed 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.

The consultation is seeking views on this, in particular whether the courts should have any additional penalty options in respect of organisations.

Implementation and delivery plan

October 2014 - launch of consultation process.

• Post-implementation review

A review process will be considered as the legislation is developed.

Summary and recommendation

Option 2 is the option on which the Scottish Government wishes to consult.

• Summary costs and benefits table

This will be detailed in the full BRIA, following consultation and accompanying the Bill and financial memorandum.

Declaration and publication

I have read the Business and Regulatory Impact Assessment and I am satisfied that, given the available evidence, it represents a reasonable view of the likely costs, benefits and impact of the leading options. I am satisfied that business impact will be assessed with the support of businesses in Scotland.

Signed:

Date: 10^th October 2014

Michael Matheson
Minister for Public Health

Scottish Government Contact point:
WilfulNeglectConsultation@scotland.gsi.gov.uk