The Health (Tobacco, Nicotine, etc. and Care) (Scotland) Act 2016 received Royal Assent back in April 2016 and is yet to come into force. However, it is worthy of note at this stage and in the context of this newsletter given that its Part 34 introduces new offences of wilful neglect or ill- treatment in Scotland for adults receiving health care or social care.5 These consist of two offences, one applying to care workers6 and the other applying to care providers.7
A ‘care worker’ is defined8 as care workers (employees and volunteers), their managers and supervisors, and directors or similar officers of organisations and the offence is committed where a care worker is providing care for another person and ill-treats or wilfully neglects that person. A ‘care provider’ is defined9 as a body corporate, a partnership or an unincorporated association which provides or arranges for the provision of adult health or social care or an individual who provides that care and employs, or has otherwise made arrangements with, other persons to assist with the provision of that care. Care that is only incidental to the care worker‘s or provider’s other activities would not fall within either of these definitions.10
A care worker will commit the offence if they have the care of another individual by virtue of being a care worker and ill-treats or wilfully neglects that individual. A care provider will, on the other hand, commit the offence if (a) they provide care, under care arrangements, for another individual and ill-treat or wilfully neglect that individual; (b) the care provider's activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care11 owed by the care provider to the individual who is ill-treated or neglected; and (c) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur. The Mental Health and Disability Committee of the Law Society of Scotland had argued strongly for the inclusion of the care provider offence (as appears in the English legislation, see footnote 2) on the basis that it would enable liability to be fixed upon those responsible for situations in which the real issues are those of management and training.
If convicted a care worker is liable, on summary conviction, to imprisonment for a term not exceeding 12 months, a fine not exceeding the maximum limit (currently £10,000) or both and, on conviction on indictment, to imprisonment for a term not exceeding five years, an unlimited fine or both. Care providers are, on the other hand, only liable to a fine on both summary and indictment conviction.
The intention apparently is that the offences will cover the relatively few deliberate acts or omissions and will not include situations where mistakes have simply been made. This extends the criminal offence that has been around since 1913 but is now contained in the Mental Health (Care and Treatment)(Scotland) Act 200312of wilful neglect or ill treatment of patients in mental health care to all health or social care settings.13
There was some argument at the time of the passage of the Health (Tobacco, Nicotine, etc. and Care)(Scotland) Bill through the Scottish Parliament that such offences were superfluous and unnecessary in light of existing protection of common law assault, the Protection of Vulnerable Groups (Scotland) Act 2007, mental health legislation and professional body disciplinary procedures. However, it could equally be argued that they in fact reinforce and compliment the protection offered by these, and the Adult Support and Protection (Scotland) Act 2007, to vulnerable persons. It could also be seen to reinforce the state’s positive obligation to ensure respect for the prohibition against inhuman or degrading treatment identified in Article 3 ECHR14 and also in Article 15 CRPD.
The Act does not provide a definition of ‘wilful neglect and ill-treatment’ and concerns about this were expressed during the passage of the Bill, notably that such definition might potentially capture non-intentional errors that could, if necessary, be adequately dealt with by disciplinary measures. However, the Scottish Parliament seems to have been persuaded that wilful neglect and ill-treatment offences are intended to cover intentional acts or omissions and not mere mistakes.15
Part 216 of the Act also introduces a duty of candour in health and social care settings. This creates a requirement for health and social care organisations to inform people and their families when they have been physically or psychologically harmed as a result of the care or treatment that they have received, together with a requirement for such organisations to prepare and publish reports in relation to this duty of candour. There was some disquiet during the passage of the Bill that the creation of an offence of wilful neglect or ill-treatment might be counter-productive to such a duty of candour owing to fear of criminal prosecution. However, it would seem that the purpose of such duty is to enhance transparency in situations when the unintentional and unexpected, as opposed to deliberate, occurs.
As already mentioned, the provisions are not yet in force and, in any event, it would appear that as distressing and wholly unacceptable as any deliberate act of abuse in health and social care settings is they are, thankfully, rare. However, we can only hope that when in force such legislative provisions are used effectively to provide justice for the victims of any such abuse.