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The rise of criminal prosecutions in the health and social care sector

Following the implementation of the Criminal Justice and Courts Act 2015 in April 2015, care workers and care providers can be prosecuted for the criminal offences of ill treatment or wilful neglect.

Section 20 of the Act states that: “It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual.”

It is worth highlighting that this offending relates to ‘wilful’ neglect carried out deliberately, not incidents of genuine error or accidental in nature.

It also makes clear that the provisions apply to the treatment of any individual placed in their care and are not restricted to those who lack capacity or have a mental health condition (as per the previous provisions under the Mental Capacity Act 2005 and Mental Health Act 1983).

Furthermore, the Act ensures that the company or care provider organisation can also be held accountable for such offending if the arrangement of their activities amounts to a “gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected”.

It is considered a “gross” breach if the conduct alleged to amount to the breach falls far below what can reasonably be expected of the care provider in the circumstances.

Whilst the offence against individual workers focuses specifically on their behaviour and conduct towards individuals, the offence against the company/provider is based on the management of their activities and the duty of care owed to the individual.

An individual convicted of such offending can face up to 5 years’ imprisonment and/or an unlimited fine. The company/provider may also be ordered by the court to take certain steps to remedy the breach identified or to publicise details of the conviction.

The provisions are intended to act as a deterrent for the type of conduct which has resulted in extreme cases of poor care or abuse but were not captured as specific offences under the previous legal framework.

The legislation applies to all professionals who hold a position that involves a duty of care towards another individual; including doctors, dentists and nurses.

Prosecution – Ill treatment or wilful neglect

Two care workers were sentenced on 21 November 2016 following prosecution for ill treatment or wilful neglect of elderly residents at Ashbourne House Nursing Home in Greater Manchester.

The defendants – Shauna Higgin and Victoria Johnson – tortured comfort dolls which were being used as a therapeutic tool for dementia patients, causing distress to the residents who had formed a special attachment to the dolls.

Video footage and images of the disturbing conduct had been taken and shared by the defendants themselves. The Manchester Evening News newspaper subsequently received the footage from a whistle-blower and they contacted the police.

The evidence showed the pair involved in snatching the doll from a distressed resident and captioned the image ‘tug of war’ and flinging a doll to the floor shouting “Die baby! Die”.

Judge Andrew Lowcock stated that families of residents in care homes should “expect the bare minimum that loved ones will be treated with dignity and respect… These cruel offences can only be met with custodial sentences”.

Shauna Higgin was ordered to serve 13 months in youth detention and Victoria Johnson was sentenced to 12 months in prison.

Ashbourne House Nursing Home, which is under the management of Silverdale Care Homes, was rated inadequate and placed in special measures following inspections by the Care Quality Commission.

Failure to provide safe care and treatment

In June 2016, St Anne’s Community Services was fined £190,000 for failing in its duty to provide safe care and treatment.

This prosecution was brought by the Care Quality Commission following the death of a 62 year old service user at a nursing home in Yorkshire in April 2015.

The service user had down’s syndrome, epilepsy, dementia and a severe learning disability and had been at the home since 2012. He suffered from a fall from a shower chair which he was loosely strapped into, resulting in fatal injuries.

The incident highlighted the risk of serious injuries arising from the failure to use safety or posture belts properly. Delivery of the care is not simply to satisfy the duty to provide it but to ensure it is carried out in a safe manner.

The court found that the provider had failed to adequately control the risk of serious injury and that the accident had been avoidable.

Corporate Manslaughter

Earlier this year, a care home company was successfully convicted for corporate manslaughter.

Sherwood Rise Limited, which was responsible for the management of Autumn Grange Residential Home in Nottingham, was fined £30,000 for the offence in February. This case concerned the death of Ivy Atkin who had been a resident at the home and died in 2012.

In this case, the defendants were found to have failed in their duty of care based on evidence of serious neglect in the provision of personal care, nutrition, accommodation and support to residents. They had ignored the concerns raised by staff and warnings from external agencies involved.

The Director had pleaded guilty to gross negligence manslaughter and was sentenced to two years and three months. He also faced a director’s disqualification order for a period of eight years.

The manager of the care home was convicted for offences under the Health and Safety at Work Act 1974. He faced a suspended sentence and was also disqualified from being a director for five years.

Liability and accountability for offending

A number of care homes have continued to be prosecuted under the Health and Safety at Work Act 1974 for the failure to ensure the health and safety of non-employees.

However, the range of powers available to prosecute offenders illustrates the development since the findings and recommendations of the Winterbourne View case in 2012 and Mid Staffordshire NHS Foundation Trust Inquiry in 2013.

What does this mean for me?

These cases should demonstrate a significant change in the care sector encouraging individuals to report incidents, allowing for appropriate investigation and prosecution to take place.

All patients and service users deserve a high quality and standard of care and should not have to tolerate any form of abuse, neglect or ill treatment from those placed in a position of responsibility.

Individuals and companies that provide a poor standard of care can now be held accountable in a number of different ways and face a greater risk of prosecution.

How can Ward Hadaway help?

For further information on any of the issues raised in this briefing, please get in touch.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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