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

Executive Summary

1. Between October 2014 and January 2015, the Scottish Government undertook a public consultation on a proposed new criminal offence of wilful neglect and ill-treatment in health and social care settings.^[1] The consultation paper set out the Government's initial thinking and invited views on proposals for the new offence.

2. The consultation questionnaire contained ten questions seeking views on the care settings that the offence should cover; whether the offence should be based on conduct rather than the harm caused; whether the offence should apply to organisations as well as individuals; appropriate penalties; and equality considerations. Six of the questions asked if respondents agreed with a specific proposal and included a yes / no tick box as well as an opportunity to provide comment. The remaining four questions were open with no tick box option.

Number of responses received

3. The consultation received 103 responses, 95 (92%) from organisations and 8 from individuals (8%). Organisational respondents included: NHS bodies; local authorities; third sector organisations; professional organisations and trade unions; scrutiny and regulatory bodies; adult / child protection bodies; partnership bodies; and organisations concerned with the practice of law.

The analysis and interpretation of the findings

4. The analysis found that, irrespective of whether respondents ticked 'yes' or 'no' in response to certain proposals, they often raised the same issues and concerns. The quantitative findings should therefore be treated with caution, as they do not properly reflect the range and complexity of opinions presented by respondents. This has to be borne in mind when interpreting the quantitative findings of the analysis.

Overview of the findings

Views about the creation of the proposed new offence

5. Although the consultation did not specifically invite views about whether the proposed offence should be created, respondents nevertheless often offered comments on this issue.

6. In general, respondents were supportive of the introduction of the offence - they saw the legislation as helpful in offering a consistent level of protection to all individuals receiving health and social care, and in holding to account those who intentionally harmed or neglected these individuals. There were also high levels of agreement with the specific proposals set out in the consultation document, although respondents often also expressed caveats or concerns.

7. However, nearly a fifth of all organisational respondents questioned the need for, or expressed serious reservations about, the creation of a new offence. Those who thought that the new offence was unnecessary argued that existing legislation and professional regulation already provided adequate protection; that the intended beneficiaries did not require special protection; that the creation of a new offence was a disproportionate response to a relatively small number of recent incidents; and that there was no evidence that a criminal sanction would act as a deterrent. These respondents were also concerned about unintended consequences relating to costs, the potential for undermining existing regulatory frameworks, and the possible negative impacts on organisational culture and quality of care.

8. These same points were also raised in response to individual consultation questions. Importantly, the comments made by this group were also frequently reflected in the caveats and concerns expressed by respondents who largely supported the introduction of the offence.

Frequent questions on the proposed offence

9. In relation to the proposed offence itself and the questions posed in the consultation, respondents frequently (in their answers to all questions) emphasised the:

• The need for consistency across settings and client groups
• The importance of the offence, its application and prosecution being part of an integrated approach to promoting positive culture change and improving standards of care across the health and care sector
• The possible risks of deterring individuals from joining the health and social care workforce (in formal and informal and paid and unpaid capacities)
• The importance of ensuring that any new offence took account of and was properly aligned with existing regulatory and legislative frameworks.

10. Across all the proposals there were calls for clarity about how the offence would operate in practice, and for clearer definitions of key terms including 'wilful neglect', 'ill-treatment', 'paid' volunteers and 'informal' carers. Respondents also asked for clarity about: the professions that would be covered by the offence and the circumstances that would give rise to organisational culpability.

Main points raised in relation to specific proposals

Whether the offence should cover all formal health and adult social care settings (Q1)

11. Ninety-one percent (91%) of respondents agreed that the offence should cover all formal health and social care settings, both in the private and public sectors. This was seen as fair and equitable to all service users and consistent with other similar legislation. It was also argued that this would lead to better and more consistent standards of care across the whole sector.

12. In relation to defining the professionals who would be covered by the legislation, there were two main views: (i) that the list included in the consultation document was incomplete and (ii) that it would not be possible to create a comprehensive list and therefore a more general definition of relevant professionals might be preferable.

13. Respondents often commented on the applicability of the offence to personal assistants employed directly by an individual with care needs (e.g. via self-directed support). Although respondents (including all local authority respondents) generally thought the law should apply to this group of care staff, this was not a unanimous view.

Whether the offence should cover NOT cover informal arrangements (Q2)

14. Most respondents (73%) agreed that the offence should not cover informal (unpaid) care arrangements. These respondents highlighted the absence of contractual obligations and the fact that unpaid carers are not professionally trained or subject to professional or regulatory arrangements. Respondents were also concerned that it may deter people from taking up a caring role, or deter carers from seeking help for fear of being accused of a criminal offence.

Whether the new offence should cover social care services for children (Q3)

15. Eighty-eight percent (88%) of respondents agreed that the offence should cover social care services for children. Respondents cited reasons of consistency and equity, and generally saw no reason not to extend the protection to children. Respondents suggested a range of specific social care services that should be covered, with some also arguing for the inclusion of education services.

16. However, respondents also highlighted the substantial body of legislation and regulation already covering children's services. Thus, some thought that it was unnecessary to have the proposed new offence to apply to children's services; others argued instead for a review of the existing legislation and / or clarity about how the new offence would align with existing legislative frameworks.

Whether the offence should apply to volunteers (Q4)

17. Most respondents (85%) thought that the offence should apply to people providing services on a voluntary basis on behalf of a voluntary organisation. Comments indicated that respondents felt strongly that the law should not differentiate based on the status of the organisation delivering the care, but had more mixed views on whether it should apply to individual volunteers. Although many felt that the status of individual volunteers should not be relevant, others highlighted contractual, training and regulatory issues and queried how the law would be applied in practice to this group.

Whether the offence should be based on conduct or actual harm suffered (Q5)

18. Most respondents (85%) thought that the offence should be based on act of wilfully neglecting or ill-treating an individual, rather than any harm suffered as a result of that behaviour. Respondents argued that this would support improved standards in the delivery of care, and would also be in line with other legislation. By contrast, those disagreeing with this proposal argued that the absence of a 'harm' threshold would encompass too many incidents, create uncertainty and cause difficulties in identifying and evidencing the offence in practice.

Whether the offence should also apply to organisations (Q6 & 7)

19. With few exceptions, respondents agreed that the offence should apply to organisations, as well as to individuals. This was seen to take account of the fact that the conduct of individuals was often symptomatic of wider organisational failings, and to recognise the importance of holding service providers to account. Respondents also agreed that this was consistent with other legislation and would help drive service improvement. However, respondents also highlighted the difficulties of attributing relative culpability in instances of neglect or ill-treatment.

20. There were concerns about how the legislation would be implemented in relation to organisations; e.g. how 'wilfulness' would be established; how any 'threshold' would be set; how it would be evidenced; and how it would be applied to individual managers, owners, etc. Respondents offered a range of broad criteria and specific examples for determining organisational culpability. There were, however, also calls for the legislation to be clear about what would constitute wilful neglect or ill-treatment at organisational level.

Views about penalties (Q8)

21. Most respondents (85%) thought that the penalties associated with the new offence should be equivalent to those for other similar offences. The importance of consistency was a key theme, although respondents also argued for stiffer penalties to be available and for flexibility to allow penalties to reflect the circumstances of the case. A common concern was that penalties (and monetary penalties in particular) should be seen as contributing to a wider service improvement.

Whether courts should have additional penalty options for organisations (Q9)

22. Two-thirds of respondents (67%) thought that courts should have additional penalty options available for organisations. They wanted stiffer penalties or, more commonly, penalties that were more clearly linked to service improvement and existing regulatory frameworks.

Impacts on groups with protected characteristics (equalities groups) (Q10)

23. Respondents were largely positive about the equality implications of the proposed new offence. Older people and those with disabilities were seen as particularly likely to benefit from the legislation; it was suggested that those from minority ethnic groups may not benefit from the protection offered by the legislation as they were more likely to be cared for by family at home. The two main issues cited were the need to facilitate access to justice for vulnerable groups and the risk of vexatious claims relating to equality-related care requests.