New ill treatment or wilful neglect offence and care provider offence
On 13 April 2015 the Criminal Justice and Courts Act 2015 Sections 20-25 came into force. These sections create two new criminal offences of ill treatment or wilful neglect which apply both to individual care workers and care provider organisations.
Previously, prosecutions for ill treatment or wilful neglect could only be undertaken where the victim lacked capacity or was receiving treatment for a mental disorder. A new offence arises if a care worker ill treats or wilfully neglects any other individual of whom he has the care by virtue of being paid to provide social care or health care for that person (whether a child or adult). It should be noted that any neglect should be “wilful” and that ill treatment requires a deliberate act or action that is reckless. It would therefore suggest that genuine errors or accidents are not within the scope of the offence and Government circular 2015/01 confirms this.
The offence carries a maximum penalty of imprisonment of up to five years and/or an unlimited fine.
Some children’s settings and services are excluded.
The Act also provides a new provider offence. A care provider can be prosecuted if:
(a) Someone who is part of its arrangements to provide care ill treats or wilfully neglects an individual in their care; and
(b) The way in which the care provider manages or organises its activity constitutes a gross breach of its duty of care to that individual; and
(c) If that duty of care had not occurred the ill treatment or wilful neglect would also not have occurred or will have been less likely to occur.
The new provider offence is punishable with a fine but in addition the court may make a remedial order or a publicity order, or both, in relation to the care provider.
We have already seen a significant increase in the number of referrals to the police to investigate cases under Section 44 of the Mental Capacity Act or Section 127 of the Mental Health Act. It is therefore to be anticipated that this trend will continue as a result of the new offences.
1. S.44 Mental Capacity Act 2005
2. S.127 Mental Health Act 1989
If you have any questions relating to this briefing, please contact Andrew Parsons.
t: 020 7227 7282
RadcliffesLeBrasseur are delighted to announce that they have recently received two awards for their work in the healthcare sector.
Global Law Experts have awarded RadcliffesLeBrasseur the accolade of Healthcare Law, Law Firm of the Year in England 2015 as part of the 6th Annual Global Law Experts Awards. Shortlisted candidates were judged on client testimonials, key cases, legal rankings, overall reputation, publication contributions, speaking engagements and the standing of its team.
The firm has also been selected as the winner in the category of Healthcare Law Firm of the Year UK by the Lawyer Monthly Legal Awards 2015, which recognises the achievements of law firms who have a proven track record in delivering results for their clients over the previous 12 months.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.