Proposals for an Offence of Wilful Neglect or ill-treatment in Health and Social Care Settings: Consultation Analysis

8 Equality Considerations (Q10)

8.1 A final question in the consultation paper asked respondents for views on any issues raised or opportunities presented by the proposed legislation for people with protected characteristics. It also asked for views on mitigating actions that might be taken. The comments received were intended to assist the Scottish Government in carrying out its full equality impact assessment.

Question 10: 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 should be taken to mitigate the impact of any negative issues?

8.2 Just over two-thirds of all respondents (71 respondents) offered comments in response to this question. Around a quarter of those responding to this question did not offer detailed comment but took the opportunity to state briefly their overall assessment of the impact of the offence on those with protected characteristics. Other respondents provided fuller comments on different groups who might be positively or negatively impacted by the legislation, the opportunities that the legislation presented in terms of equalities and the actions required to maximise those opportunities and the issues raised and the steps required to mitigate those issues.

Overall assessment of the impact on those with protected characteristics

8.3 Most respondents were, on the whole, positive about the equality implications of the proposed offence, although a number of issues and concerns were nevertheless raised within this context, as discussed below.

8.4 Respondents, including those who offered brief comments only, took the opportunity to state a general belief or expectation that the proposed offence would be a positive development for everyone (including staff, volunteers and carers); for all at risk of harm; for those from vulnerable groups; for those with protected characteristics; for those not currently covered by the Mental Health (S) Act 2003 or the Adults with Incapacity (S) Act 2000.

8.5 Those offering a more neutral assessment indicated that they saw no negative impacts relating to those with protected characteristics, or no issues or opportunities.

8.6 Those respondents who had reservations about the introduction of the new offence either did not comment on the equality considerations or tended to offer neutral views. Two such respondents specifically stated that the new offence would provide 'no further protection [for people with protected characteristics] than that which is already offered under current legislation', thus indicating that their assessment was based on their overall view that the proposed offence was not needed because sufficient legal remedies were already available.

8.7 Respondents offering fuller comments on their positive assessment of the equalities considerations made the point that those with protected characteristics where more likely to be subject to wilful neglect or ill-treatment for a number of reasons: because they were more likely to be in receipt of health or social care (in the case of those affected by age or disability); or because their protected characteristic made them vulnerable to discrimination and harassment and may be a factor in their wilful neglect or ill-treatment. It was suggested that the new offence would give such groups confidence in knowing that neglect or ill-treatment was unacceptable. Those highlighting particular groups who would benefit focused on older people and those with disabilities, although some stressed that offences should be prosecuted regardless of protected characteristics.

8.8 Alongside the more positive comments about equality impacts, respondents highlighted a number of groups who they thought may not get the full benefit from the new legislation. Groups here included those from minority ethnic groups who were, it was suggested, more likely to be cared for by family at home; those making use of the option under self-directed support to employ personal assistants in their own home; those from backgrounds where traditional practices and cultural norms and expectations may impact on the ability to pursue cases because of a lack of evidence or corroboration. Some made a more general point about the need for consistency in protecting those cared for in both formal and informal settings.

8.9 The possibility of organisations becoming more risk averse and withdrawing from providing services from some client groups was noted as having a potential impact on people with protected characteristics by one respondent.

8.10 While most comments focused on the equality impacts on different groups of service users and patients, a few respondents made reference to groups involved in delivering care who may be adversely affected. It was noted that the gender balance in the care sector meant that women were more likely to face legal proceedings under the new law. Two respondents commented on the potential implications for care staff with learning disabilities: one noted that the new law may have possible consequences for the employment of those with learning disabilities in caring roles; another suggested that there may be situations where the presence of such characteristics might represent 'mitigating circumstances' in the event of an accusation of wilful neglect or ill-treatment being made.

Issues arising and how they might be mitigated

8.11 There were two main themes in the issues identified by respondents: the need to facilitate access to justice for equality groups; and a concern that equality considerations had the potential to give rise to vexatious claims. These are discussed in turn below.

8.12 The difficulties faced by some equality groups in getting access to justice was a key issue for a range of respondents who stressed the need to ensure that the introduction of the new offence was complemented by appropriate steps to mitigate this. Groups mentioned most often here included 'hard to reach groups', older people, disabled people and, in particular, those with communication difficulties. The measures proposed by respondents focused on aiding prevention and early identification of incidents as well as facilitating access to legal redress and supporting victims, and included the following:

• Clear and accessible information for service users, their families and carers, to raise awareness of expected standards, as well as the options for taking action
• Effective complaints procedures
• Clear routes for accessing relevant agencies, including the Police and legal advisors
• (Confidential) advice lines and reporting services, including telephone and online options
• Access to support and advocacy services, with criminal justice lay visitors noted as one existing model.

8.13 A number of respondents felt it was important to recognise the reality of the difficulties faced by some groups in pursuing actions; they suggested that in some circumstances preventative measures should be prioritised to reduce the chance of neglect or ill-treatment and the corresponding need for redress.

8.14 It was also suggested that pursuing actions could have negative repercussions for those involved (including the risk of organisations / professionals trying to pass blame onto accusers), and that sensitive handling and adequate support for victims would be required to offset this.

8.15 For some respondents involved in service provision there was a concern that the new offence could give rise to unreasonable or vexatious actions against staff and organisations in cases where it had not been possible to meet requests related to the needs of specific equality groups. Examples offered included not being able to offer treatment by a practitioner of the same sex as the client. This was seen as an issue that was most likely to arise in rural and remote areas, and during 'out-of-hours' periods.

Opportunities presented by the introduction of the new offence

8.16 Respondents identified a number of opportunities arising from the introduction of the new offence, relating to: empowering service users; driving service improvement and enhancing understanding of equality issues as follows:

• Empowerment of service users (and their families): Respondents suggested that the new offence would increase the opportunities for those with protected characteristics to challenge inadequate care; would offer such service users consistent options and a clear complaint 'pathway'; would make it clear that such service users did not have to tolerate sub-standard care and treatment; and would allow them to hold service providers to account in respect of their implementation of equalities legislation.
• Enhancing understanding of equality considerations: Here respondents suggested that the new offence would provide an opportunity for organisations to ensure they have appropriate policies, procedures and training in place in relation to equality and diversity. It was further suggested that policies, procedures and training should confirm the expectation that people should be treated equally and fairly, and with respect, regardless of their characteristics and background. It should also reconfirm expectations relating to whistleblowing, empowering staff to act if they became aware of neglect or ill-treatment. There was a call for this to be covered in any guidance issued to support the legislation.
• Driving service improvement: The legislation was seen as providing the opportunity to improve the quality of care and level of protection for all service users. One respondent suggested it would help 'set minimum operating standards for all organisations, to promote collective responsibility and improve outcomes for those most in need of help and support'; another suggested that meeting the needs of those from different equality groups should be addressed as part of the commissioning process.

8.17 However, while most respondents saw potential opportunities in relation to addressing equality issues, some also cautioned that the introduction of the new offence was not sufficient on its own. Here respondents highlighted:

• The importance of the legislation being 'part of a wider programme to improve care, create an open culture and ensure a valued workforce'
• The need for full understanding of the purpose and application of the new offence, and the importance of avoiding confusion with existing legislation that already provides protection for some with protected characteristics
• The need to look at and learn from the limited use made of the existing offences of wilful neglect and ill-treatment.

Other points raised

8.18 A small number of respondents attached importance to the proposed equality impact assessment or engagement with relevant groups or specifically as mechanisms for identifying possible issues and impacts on groups with protected characteristics.