Criminal Neglect? A new Offence for Managers?
The Berwick Review has proposed a new form of criminal offence for neglect or wilful misconduct. The recommendation for a new criminal offence would apply to “leaders who have acted wilfully, recklessly or with a ‘couldn’t care less’ attitude and whose behaviour causes avoidable death or serious harm.”
There has been much comment about the prospects of taking action against managers where patients suffer harm as a result of alleged neglect. This would supplement the existing individual criminal offences under the Mental Capacity Act and the Mental Health Act; namely:
Section 44 Mental Capacity Act: “If a person (D) has the care of a person (P) who lacks or whom D reasonably believes to lack capacity … D is guilty of an office if he ill-treats or wilfully neglects P.”
Section 127 Mental Health Act: “It shall be an offence for any person who is an Officer on the staff of or otherwise employed in or who is one of the managers of a hospital, independent hospital or care home.
(a) to ill-treat or wilfully to neglect a patient for the time being receiving treatment for mental disorder as an in-patient in that hospital or home; or
(b) to ill-treat or wilfully to neglect on the premises of which the hospital or home forms part, a patient for the time being receiving such treatment there as an outpatient.
The existing offences include the possibility of imprisonment for up to five years.
It remains to be seen whether the new offence will make it to the statute books. There has certainly been much media comment about the legal responsibility of hospital managers following the Francis Report into failings at Mid Staffordshire Foundation Trust. Statistics apparently show that safeguarding alerts involving vulnerable adults rose by 11% last year. Overall, there were 108,000 referrals following safeguarding concerns involving adults between 2011 and 2012.
The proposal for a new criminal offence seems to take the level of responsibility further “up the chain” from the actual delivery of care to include managers, not just care staff. The prosecution of those involved in the ill treatment or neglect of patients, particularly those lacking capacity, is a well-trodden prosecution path, particularly using Section 44 Mental Capacity Act. It is often much easier to prove both a lack of capacity and an episode of care by an individual carer that amounts to ill-treatment or neglect. It remains to be seen how easy it will be to attribute specific liability for an episode of inadequate care to a particular named Manager. In many organisations, the management structure is not always simple and attribution of criminal responsibility may not be straight forward.
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