Ill-treatment or wilful neglect offences - Sections 20 to 25 of the Criminal Justice and Courts Act 2015
Background
The offences contrary to sections 20 and 21 of the Criminal Justice and Courts Act 2015 ['CJCA 2015'] were part of the Government's response to the public inquiry conducted by Sir Robert Francis QC into the events at Mid-Staffordshire NHS Foundation Trust.
There are already offences in respect of the ill-treatment and wilful neglect of patients receiving treatment for mental disorder (s.127 Mental Health Act 1983) and of those who lack capacity under the Mental Capacity Act 2005 (s.44 Mental Capacity Act). There is also an offence of wilfully ill-treating or neglecting children in certain circumstances (s.1 Children and Young Persons Act 1933). However, there was no equivalent specific offence in relation to those being cared for with full capacity. The offences contrary to sections 20 to 25 of the [CJCA 2015] closed this gap in existing legislation.
The meaning of ill-treatment or wilful neglect
Both offences require proof of "ill-treatment" or "wilful neglect". These terms are not defined in the Act but there is already established case law deriving from parallel provisions.
Ill-treatment
In R v Newington (91 Cr.App.R. 247, CA.) the Court stated that ill-treatment requires the Crown to prove:
- deliberate conduct on the part of the offender which could properly be described as ill-treatment irrespective of whether it damaged or threatened to damage the health of the victim; and
- a guilty mind involving either an appreciation by the offender at the time that he was inexcusably ill-treating a patient or that he was reckless as to whether he was inexcusably acting in that way.
The Court rejected a submission that conduct amounting to wilful neglect would also necessarily amount to ill-treatment and, as a result, suggested both limbs of the offence should not be alleged in the same count.
Wilful Neglect
In R v Sheppard [1981] A.C. 394 the Court held that the primary meaning of wilful is "deliberate". Therefore, for example, someone who knows that the person in their care needs medical assistance and deliberately, that is by conscious decision, refrains from calling a doctor would be guilty of wilful neglect. Equally, a person who fails to provide medical care because he does not care whether it is needed or not is reckless and is also guilty.
In R v Turbill and Broadway [2014] 1 Cr.App.R. 7, the Court applied the meaning of "wilful neglect" as set out in Sheppard to an offence contrary to section 44 of the Mental Capacity Act 2005. The Court stated that the term "wilfully" means deliberately refraining from acting or refraining from acting because of not caring whether action was required or not.
In R v Patel [2013] EWCA Crim 965, the Court of Appeal drew a distinction between the offences contrary to section 1 of the Children and Young Persons Act and section 44 of the Mental Capacity Act 2005. The former requires that the wilful neglect was likely to result in unnecessary suffering or injury the health whereas the latter does not. The actus reus of a section 44 offence would, therefore, be complete if a care worker wilfully neglects to do something which should be done in the treatment of a patient. He could not escape liability on the basis that, even if he had administered the treatment in question, it would have made no difference to the wellbeing of the patient. This would apply equally to offences contrary to sections 21 and 22 of the CJCA 2015.
The Offences
Two offences are created:
- Section 20 CJCA 2015 - the" care worker offence" which applies to individuals; and
- Section 21 CJCA 2015 - the "care provider offence" which applies to various prescribed bodies.
They apply in England and Wales and came into force on 13 April 2015.
They do not apply where provision of health care or social care is merely incidental to the carrying out of other activities.
They will apply:
- to all formal healthcare provision for adults and children (under 18) in both the NHS and private sector, other than in specific excluded children's services and settings;
- to all formal adult social care provisions, in both the public and private sectors, including where care is self-funded; and
- to individuals and organisations paid to provide or arrange for the provision of these health and adult social care services.
Section 20 CJCA 2015 - The Care Worker Offence
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 other individual.
Definitions
Care worker is defined by section 20(3) CJCA 2015.
It means an individual who, as paid work, provides:
- health care for an adult or child (other than excluded health care), or
- social care for an adult.
It also includes an individual who, as paid work, supervises or manages individuals providing such care or is a director or similar officer of an organisation which provides such care.
The intention is to ensure that the offence can apply to any individual perpetrator, not just those on the front line of care provision. However, it will only apply where the individual supervisor, director, etc. has directly committed ill-treatment or wilful neglect as they are not liable for the offence in respect of the acts or omissions of others they supervise or manage.
Paid work is defined in section 20(4) CJCA 2015
An individual does something as "paid work" if he or she receives or is entitled to payment for doing it other than:
- payment in respect of the individual's reasonable expenses,
- payment to which the individual is entitled as a foster parent,
- a benefit under social security legislation, or
- a payment made under arrangements under section 2 of the Employment and Training Act 1973 (arrangements to assist people to select, train for, obtain and retain employment).
Informal arrangements, such as unpaid family carers and friends are not liable for the offence.
Health care is referred to in section 20(5) CJCA 2015 and includes:
- all forms of health care provided for individuals, including health care relating to physical health or mental health and health care provided for or in connection with the protection or improvement of public health, and
- procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition.
"Excluded health care" has the meaning given in Schedule 4 of the CJCA 2015.
Social care is referred to in section 20(6) CJCA 2015 and includes all forms of personal care and other practical assistance provided for individuals who are in need of such care or assistance by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs or any other similar circumstances.
Section 20(7) CJCA 2015 clarifies that references to a person providing health care or social care do not include a person whose provision of such care is merely incidental to the carrying out of other activities by the person.
Sentence
Section 20 CJCA 2015 is an either way offence punishable with up to 5 years' imprisonment on indictment.
Section 21 CJCA 2015 - The Care Provider Offence
Elements of the offence
The offence has three elements set out in section 21(1) CJCA 2015:
- The "ulterior offence" element.
This is proved if an individual who has the care of another individual by virtue of being part of a care provider's arrangements ill-treats or wilfully neglects that other individual.
Section 22(3) CJCA 2015 provides that an individual is "part of a care provider's arrangements" where the individual is not the care provider but:- provides health care or social care as part of health care or social care provided or arranged for by the care provider; including,
- where the individual supervises or manages others providing such care, or
- is a director or similar officer in an organisation which provides such care.
- The "breach of duty" element.
This is proved if the care provider's activities are managed or organised in a way which 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.
Section 21(4) CJCA 2015 provides that "relevant duty of care" means a duty owed under the law of negligence or a duty that would be so owed were it not for legislative provisions which impose alternative liability on place of liability owed under the law of negligence. However, the duty will apply only to the extent that it arises in connection with providing or arranging the provision of health care or social care.
Section 21(5) CJCA 2015 is intended to avoid a care provider escaping liability by relying on some alleged illegality on the part of the victim or an argument that the victim had in some way consented to a risk of harm when consenting to care or treatment.
Section 21(6) CJCA 2015 provides that a breach of duty is "gross" if the conduct alleged falls far below what can be reasonably expected of the care provider in the circumstances. - The "causative" element.
This is proved if, in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.
Definitions
A "care provider" is defined in section 21(2) CJCA 2015 and means:
- a body corporate or unincorporated association which provides or arranges for the provision of health care for an adult or child (other than excluded care) or social care for an adult, or
- an individual who provides such care and employs, or has otherwise made arrangements with, other persons to assist him or her in providing such care.
This is subject to section 22 CJCA 2015 which excludes certain care providers. These are essentially:
- Local authorities when providing health care in the exercise of functions in respect of children's social care and when exercising its social services functions in respect of children or organisations who have entered into arrangements with local authorities to carry out such functions [section 22(1) to (5) CJCA 2015]; and
- Registered adoption societies or support agencies when providing adoption support services [section 22(6) CJCA 2015].
Section 21(7) CJCA 2015 provides that where the provision, or making of arrangements for the provision, of health or social care is incidental to the carrying out of other activities, it is to be disregarded for the purposes of the care provider offence. For example, a prison that makes arrangements for one of its prison officers to accompany a prisoner, who has suddenly fallen ill, to hospital, would not be treated as a care provider, because the arrangements made are merely incidental to the organisation's primary custodial activities.
Sentence and Ancillary Orders
Section 23(1) CJCA 2015 provides that the offence is punishable with a fine on indictment or summary conviction.
Section 23(2) CJCA 2015 provides for two new ancillary orders which may be made on conviction of a section 21 CJCA 2015 offence instead of or as well as the imposition of a fine, namely a "remedial order" and a "publicity order".
Remedial Order
Section 23(3) CJCA 2015 provides that this is an order requiring the person to take specified steps to remedy one or more of the following:
- the breach mentioned in section 21(1)(b) CJCA 2015 (the relevant breach);
- any matter that appears to the court to have resulted from the relevant breach and to be connected with the ill-treatment or neglect;
- any deficiency in the person's policies, systems or practices of which the relevant breach appears to the court to be an indication.
The order may be made only on an application by the prosecution which must specify the terms of the proposed order [s.23(5)(a) CJCA 2015].
It must be made on such terms as the court considers appropriate having regard to any representations made, and any evidence adduced, in relation to its terms by the prosecution or by or on behalf of the person convicted [s.23(5)(b) CJCA 2015].
It must also specify a period within which the steps specified in the order must be taken [s.25(3)(c) CJCA 2015].
Publicity Order
Section 23(4) CJCA 2015 provides that a publicity order is an order requiring the person to publicise in a specified manner:
- the fact that the person has been convicted of the offence;
- specified particulars of the offence;
- the amount of any fine imposed;
- the terms of any remedial order made.
Any order must specify a period within which the requirements specified in the order must be complied with [s.23(7) CJCA 2015].
Failure to comply with either order amounts to an offence under section 23(7) CJCA 2015 punishable with a fine on conviction on indictment or summary conviction.
Liability for Ancillary and Other Offences
Section 25(2)-(5) CJCA 2015 provide that a defendant may be convicted in the same proceedings of a section 21 CJCA 2015 offence and another relevant offence arising out of some or all the same factual circumstances if the interests of justice require it. A relevant offence is defined as any statutory offence dealing with health and safety matters or the provision of health care or social care.
This does not apply to a section 20 CJCA 2015 offence.
Other Guidance
The Explanatory Notes indicate that the overall approach to the offence under section 21 was modelled, insofar as practicable, on that of the offence of corporate manslaughter / homicide established in the Corporate Manslaughter and Corporate Homicide Act 2007 ('CMCHA 2007'). The intention was to resolve difficulties associated with proving the element of wilfulness on the part of an organisation. The CMCHA 2007 removed the necessity of identifying a single individual within the organisation's senior management structure of sufficient seniority to be acting as the "directing mind" of the organisation and then proving that this individual behaved wilfully such that the organisation as a whole is considered guilty of the offence. Instead the CMCHA 2007 focused on the way an organisation managed or organised its activities, and on the duty of care that the organisation owed towards the victim. This section takes the same approach in respect of whether an organisation has conducted its affairs in a way that amounts to a gross breach of duty of care owed towards someone who has been a victim of ill-treatment or wilful neglect by the care provider's employee or other individual engaged by it.
In these circumstances prosecutors may find it helpful to consult the Corporate Manslaughter guidance for further guidance and should refer to the guidance on Corporate Prosecutions as the additional evidential and public interest factors listed there may be relevant.