Proposals for the creation of an Offence of Wilful Neglect or Ill-treatment with regard to services for Children under the age of 18- Further Engagement: Scottish Government Response and Analysis

Introduction

1. The Scottish Government launched a further engagement exercise on proposals for the creation of an offence of wilful neglect or ill-treatment with regard to services for Children under the age of 18, on 16 September 2015. The consultation closed, after a 6 week period, on 28 October 2015.

2. The Health (Tobacco, Nicotine etc. and Care) Bill was introduced to Parliament on 4 June 2015 and confirms the intention to introduce an offence of wilful neglect and ill-treatment for adult health and social care services. The consultation paper outlined proposals for a Stage 2 amendment to be made to the Bill to extend the provisions in relation to wilful neglect and ill-treatment to also cover services for children.

3. The wellbeing and safety of Scotland's children is of paramount importance to the Scottish Government. All young people have the right to be cared for and protected from harm, and to grow up in a safe environment, in which their rights and needs are respected. Everyone working with children has a duty to promote, support and safeguard their wellbeing. Scotland has a broad and extensive framework for child protection, and it is clear that the majority of children in Scotland receive high quality services from a workforce concerned about their wellbeing. There is a commitment to continuous improvement, both from the Scottish Government and our partners; for example through the Early Years Collaborative and other initiatives, such as GIRFEC.

4. The consultation responses received made it clear that the respondents are equally committed to the principles of offering children the best protection possible from abuse or neglect. However, it is also clear that the respondents had very serious concerns about the proposals outlined in the consultation paper. The Scottish Government values the input and expertise of its partners in this area, and is committed to working collaboratively with them to drive improvement in child protection in Scotland. To that end, we have considered their concerns and acknowledge their validity. For this reason, the Scottish Government no longer considers that including children's services within the scope of Part 3 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Bill, is the best way to protect children from wilful neglect or ill-treatment, at this time.

5. It should be noted that the Scottish Government's position on the provisions on wilful neglect in adult health and social care has not changed and that these provisions will remain in the Bill. Offences of wilful neglect and ill-treatment in a health and social care context already apply to some people, as a result of s.83 of the Adults with Incapacity (Scotland) Act 2000 and s.315 of the Mental Health (Care and Treatment) (Scotland) Act 2003. It is not the principles behind the provisions which are problematic, but issues in relation to how they can be coherently implemented in the context of the child protection landscape in Scotland. Furthermore, the provisions in the Bill have already been consulted upon, as part of the wider consultation on wilful neglect and ill-treatment in health and social care services, which was launched by the Scottish Government in October 2014. While the initial consultation showed that respondents to that consultation mostly agreed in principle with the proposal that the provisions should also cover children's services, it did not explore in detail, the issues in relation to implementing the proposals in the context of the Scottish child protection system.

6. Respondents to the consultation highlighted four main areas of concern in relation to these proposals:

• Rationale
• Existing legislation
• Unintended consequences
• Scope

These are explored in more detail at headings A - D below. Please note that a full question-by-question breakdown of the consultation responses is available at Annex A.

A: Rationale for introducing the offence

7. Nine out of 47 respondents to the consultation expressly questioned the rationale for introducing the offence. This was a theme throughout the consultation responses, with respondents highlighting the issues detailed at paragraphs 8 - 10 under various different questions.

8. One reason given for questioning the rationale for introducing the offence was that respondents felt that no evidence base had been shown to exist, which demonstrated that additional legislation was needed in order to protect children from neglect and ill-treatment in health and social care settings. The NSPCC response stated that, "The Scottish Government must demonstrate that children will be safer as a consequence of any proposed changes" and the joint response submitted by Barnardo's, Children 1^st and Children in Scotland stated that "We would urge the Scottish Government to consider what evidence is available to suggest that these proposals are currently needed in Scotland and how they would make children safer". While events such as the breakdown of care at Mid-Staffordshire NHS Foundation Trust, and at Winterbourne View, can be seen as an evidence base which demonstrates the need for additional protection of adults in health and social care contexts, they do not necessarily demonstrate the need for the introduction of an offence of wilful neglect and ill-treatment to children's services.

9. Some respondents considered that as there is already existing child protection legislation which covers wilful neglect and ill-treatment, there is no rationale for introducing additional legislation. They also highlighted that implementing the proposed offence alongside the existing legislation could have serious unintended consequences. These issues are explored in more detail at headings B and C below.

10. Police Scotland gave a further reason that there did not appear to be a justification for implementing the proposals. They stated that "Police Scotland is of the view that a single piece of necessary, effective, clear, coherent and accessible legislation which is fit for 21st Century Scotland is created which encompasses all individuals or organisations having parental, charge or care responsibilities as opposed to creating a patchwork of legislation with different essential elements, thresholds and outcomes." They, and nine other respondents, including the Scottish Association for Social Work, the Health and Care Professions Council, and the Scottish Independent Advocacy Alliance, suggested that the neglect or ill-treatment of children is unacceptable no matter what setting it occurs in, implying that the Scottish Government should take steps to address the problem of wilful neglect and ill-treatment as a whole across Scotland. Police Scotland said that, "A possible unintended consequence of the proposal for new legislation to focus solely on this narrow group represents a missed opportunity to include all care providers, issues such as necessity, effectiveness, clarity, coherence, accessibility and fairness, may result in further debate."

B: Existing Legislation

11. As mentioned at paragraphs 6 and 7, there is existing legislation under Scots Law, which offers children protection for neglect and ill-treatment in a health and social care setting. The Children and Young Persons (Scotland) Act 1937 (CYPA) s.12 states that "If any person who has attained the age of sixteen years and who has parental responsibilities in relation to a child or to a young person under that age or has charge or care of a child or such a young person, wilfully… neglects, …or causes or procures him to be neglected… that person shall be guilty of an offence." This offence is not limited to parental and familial relationships and consequently could be used to prosecute a Care Worker who neglected or ill-treated a child in a health or social care setting. Consequently, children would remain protected from wilful neglect or ill-treatment in a health and social care setting, even if the proposed amendment to the Bill is not made, because they would be protected under the s.12 offence.

12. In their consultation response, Police Scotland stated that introducing a new offence of wilful neglect and ill-treatment in children's services, alongside s.12 of the CYPA would result in, "a patchwork of legislation with different essential elements, thresholds and outcomes." Instead, they repeatedly urge the Scottish Government to consider an alternative approach and create "a single piece of necessary, effective, clear, coherent and accessible legislation which is fit for 21st Century Scotland… which encompasses all individuals or organisations having parental, charge or care responsibilities"

13. They also note that "While Section 12 of the Children and Young Persons (Scotland) Act 1937 has been the criminal legislative cornerstone for protecting children and young people for some 78 years, case law over these many years has resulted in questions over its effectiveness in a 21^st Century Scotland…Section 12 of the Children and Young Persons (Scotland) Act 1937 should be repealed and a new piece of legislation enacted which is fit for a modern Scotland and includes all persons and organsiations [sic] who have parental, charge or care responsibilities." The issues with using a 78 year-old piece of legislation are two-fold: firstly, many different judicial rulings have set different and sometimes conflicting interpretations of how they should be applied, leading to the "patchwork" referred to in the Police Scotland response. The second issue is that societal attitudes in relation to what qualifies as wilful neglect and ill-treatment may have changed over the past 78 years and consequently an Act which was created in 1937 may no longer be suitable to sanction all conduct which is currently widely understood as wilful neglect or ill-treatment.

14. The complexities of applying CYPA s.12 were also noted in the response from the Law Society of Scotland, when they highlighted issues in relation to the judicial interpretation of wilful neglect. The response highlights the recent case of JM v. Locality Reporter Glasgow where leading judges could not agree on the legal definition of wilful neglect, as it is articulated in CYPA s,12. Part of the reason for this is that the many different precedents set over 78 years had led to conflicting interpretations, even among the country's top judges, as to how wilful neglect should be interpreted in Scots law.

15. A common theme in the consultation responses was that additional clarity was needed in relation to the definition of wilful neglect: this was mentioned by 13 organisations at various points throughout their submissions. Respondents were concerned that the proposals did not provide certainty to practitioners that they would not be prosecuted for wilful neglect or ill-treatment, as a result of conduct which they had not been aware could be interpreted as wilful neglect or ill-treatment. However, it is important to note that the provisions in the Bill are very similar to existing offences under the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults With Incapacity (Scotland) Act 2000. These offences have been applied for 12 and 15 years, respectively, and there is no evidence to suggest that there has been any difficulty amongst practitioners, the police, or the judiciary in applying these offences. By giving a closer definition of wilful neglect in the Bill, the Scottish Government would run the risk of throwing doubt on the way that the concept of 'wilful neglect' is interpreted in existing legislation.

16. The Scottish Government acknowledges that the issues outlined at paragraphs 12 - 16 of this paper indicate that there are problems with the existing offences of wilful neglect and ill-treatment under s.12 of the Children and Young Persons (Scotland) Act 1937. We appreciate that this situation is imperfect and cannot be a permanent solution for addressing the problems of children both within and beyond health and social care settings. However, as indicated above, part of the problem with the s.12 offence is that it is complex to apply in practice. Adding a further offence which has limited application, is only going to add to existing complexities in this area. Furthermore, the problems in relation to s.12 are problems in relation to the wider context of the wilful neglect and ill-treatment of children, beyond the health and social care context. For this reason, the Scottish Government does not believe that an amendment to this Bill is the appropriate mechanism to address these issues. These issues clearly highlight the difficulties of implementing these proposals in a child protection context, as opposed to an adult health and social care context.

C: Unintended consequences

17. One of the major unintended consequences which was identified as a risk by respondents to the consultation, was that the proposals may deter care workers and providers from open and transparent practices which would enable learning and help prevent future mistakes. Inverclyde Child Protection Committee and Social Work Scotland both submitted responses which summarised this risk by saying that, "It should … be noted… that practitioners are often faced with situations that are complex and the tone of the legislation does not appear to promote a supportive and empowering approach to practice and may contribute to a culture of fear and punishment. This may lead to more risk-averse and defensive practice and decision making." Eight other respondents also identified this possibility as risk related to implementing the proposals.. The joint response from Barnardo's, Children 1^st and Children in Scotland gives insight into why the respondents may consider this risk to be significant, when it states that, "Open and transparent practice is one of the best ways to prevent abuse taking place within institutional settings."

18. The comments summarised at paragraph 17 should be viewed in light of Scottish Government child protection policy. The National Child Protection Guidance 2014, states that the Scottish Government wants to promote a skilled and confident workforce, which would seem contradictory to the "culture of fear and punishment" described by Inverclyde Child Protection Committee and Social Work Scotland amongst others.

19. Police Scotland also suggested that "potential unintended consequences of such could be individual workers or organisations providing health and social care services feeling unable to participate in or provide any information when a review is being conducted; whether single agency or multi agency, such as a Significant Case Review, due to the possibility of self-incrimination." Again, this is contrary to Scottish Government policy objectives. It is clearly stated in the National Guidance for Significant Case Reviews (SCRs) for Child Protection Committees that the purpose of SCRs is to aid organisational learning, which would be negatively affected if Care Workers and Providers are less willing to actively participate in them due to a fear of criminal prosecution.

20. More defensive learning practices could also prevent effective inter-agency working, as practitioners may be afraid to disclose mistakes in case this leads to a prosecution being brought against them. This could further be exacerbated by the fact that some agencies would be liable for prosecution under these proposals, while others would not. For example, while social workers could be prosecuted under the offence, police could not. Again, this is contrary to existing child protection policy in Scotland, as an important part of the Children and Young People (Scotland) Act 2014, is that it requires a wide range of public bodies to cooperate to support children and families. Any disincentive to share information in the interest of the child would be contrary to achieving this. Furthermore, making the GIRFEC approach effective depends on honest partnership working between practitioners across children's services.

21. Four respondents also expressed the concern that a further unintended consequence of implementing the proposals would be to deter people from entering Care Worker professions.

22. It should be noted that the proposed offences are already applied to the health care context under the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults With Incapacity (Scotland) Act, without creating these unintended consequences and without contradicting Scottish Government policy. Again, it is clear that problems arise when the provisions are applied to the child protection context, and not in relation to adult care. This is partly due to the large volume of existing legislation in the area of child protection. As mentioned at paragraph 16, the Scottish Government recognises that creating this offence alongside s.12 CYPA would add additional complexity to the system which is already in place to protect children from wilful neglect and ill-treatment in a health and social care setting. As many respondents have stated the need for a definition of the conduct encompassed by wilful neglect and ill-treatment, it seems that one of the implications of this complexity would be to create confusion in relation to what conduct would lead to liability under the proposed offence. As a result of this confusion, Care Workers working in a child care capacity may feel less certainty as to whether they would be prosecuted, than Care Workers providing services to adults. Consequently, it is understandable that these unintended consequences may occur in relation to children's health and social care services but not in relation to adult services.

D: Scope

23. 17 respondents stated that if these proposals were to be implemented, then they should be applied to educational services in some capacity. This had not previously been considered, as there is no equivalent, in relation to adults, to the care provided to children within an educational setting. The fact that, overall, 36% of the total respondents suggested that educational settings should be included, suggests that the Scottish Government should not apply a wilful neglect and ill-treatment in relation to children, to health and social care services in isolation.

24. It was highlighted by five consultation respondents, that workers within educational settings do deliver a level of care to children; particularly vulnerable children, who receive social care across a range of settings. Similarly, two consultation responses noted that teachers are the people who, apart from parents or carers, have the most access to children's lives.

25. Six responses highlighted the fact that there are some services which are delivered within educational settings which could be categorised as health or social care services. For example, health care which is delivered at school; such as where disabled children who need health care receive treatment from specialists at school, or where they receive support from a learning assistant.

26. The Scottish Government acknowledges that teachers and educational establishments are an important part of children's services, which have an important role to play in child protection. This is an issue which clearly is limited to children's services in its application, as a similar context to children's education does not exist in adult services.

27. Another issue in relation to the coverage of the proposals relates to the line between formal and informal care. The lines between formal and informal care are much more blurred in relation to the care of children than in relation to the care of adults. Respondents gave several examples as to where it would be unclear whether a care arrangement was formal or informal.

28. One such example, as mentioned by five different respondents, would be foster care, where the arrangement is contractual in nature and can be between either the parent of the child and the foster carer, or the local authority and the foster carer. Another example would be where the parent of the child takes on the role of a Self-Directed Support (SDS) Personal Assistant: four responses raised this issue. If other SDS workers would be covered by the scheme, then it seems that a parent, despite having an informal caring duty, would be covered by the offence by virtue of being paid. The distinction between formal kinship care as opposed to informal kinship care could also be problematic, as was highlighted in three responses. This would mean that a kinship carer who performed the exact same role, but whose care arrangement was classified as "informal", would be less liable for neglecting the child in their care. From the examples detailed in this paragraph, we can see that the language of formal and informal care do not translate to child protection.

29. Again the response of Police Scotland, that any new wilful neglect offence should be applicable to all settings, should be considered. A further five responses, including Royal Blind, and the Scottish Independent Advocacy Alliance, stated that with respect to children, both formal and informal care arrangements should be covered.

Conclusions

30. Like many of the respondents to this engagement exercise, the Scottish Government is strongly committed to the general principle of the need to protect children from neglect. We continue to believe that no measure of neglect or ill-treatment is acceptable. This consultation was undertaken in order to explore how the proposed offence would apply to children's services. During the course of the consultation, it has become clear that implementing this offence in the context of the Scottish child protection system would be very complex and could have adverse consequences, as described under headings A - D of this paper.

31. The Scottish Government acknowledges that a highly similar offence is already applicable to health services under the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Adults With Incapacity (Scotland) Act 2000. However, given the issues detailed at headings A - D above, we also acknowledge that it may not be possible to incorporate this offence into the Scottish child protection system in a coherent and usable way. For that reason, we have concluded that, at this time, the amendment proposed in the consultation paper is not the correct way to offer additional protection against wilful neglect or ill-treatment to children.