Care Providers Beware: Prosecution for ill treatment and wilful neglect.

Lurking within the Criminal Justice and Courts Act 2015 are some little known and relatively new offences that may see the light of a greater number of prosecutions as the dust settles on the Covid-19 pandemic and the quality of the care provided during such comes under scrutiny.

The offences contrary to sections 20 and 21 of the 2015 Act seek to widen the protection for those in receipt of care following the public enquiry relating to Mid-Staffordshire NHS trust. Certain more vulnerable members of society were already protected by way of various other statutes.

What are Ill-treatment and Wilful Neglect?

Both of the offences under sections 20 and 21 require these elements to be proved by the prosecution. Their meanings are not defined in the act but there is analogous legal precedent and so ill –treatment is defined as:

1. 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
2. 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.

Wilful neglect requires the offender to have behaved deliberately so for example by consciously withholding necessary medication or where they could not care either way if that medication is provided so in other words where they are reckless.

What is not required is actual harm caused to the ‘patient’ by either the treatment or the neglect.

Section 20 – the Care Worker Offence

This section deals with the potential prosecution of individuals so those involved in the provision of healthcare and social care services in the UK from 13th April 2015 whether in the context of the NHS or private provision of services and bites where there has been either ill treatment or wilful neglect perpetrated by paid providers of health or social care (so not just medical staff but those who supervise and facilitate this care as long as they are personally responsible for the ill-treatment or wilful neglect).

Various definitions of what amounts to paid work and health care and social care are contained within the act.

A section 20 prosecution can be tried at either the Magistrates Court or the Crown Court and if found guilty an individual could face up to 5 years in prison.

Section 21 – the Care Provider Offence

This section deals with the potential prosecution of bodies involved in the provision of healthcare and social care services in the UK from 13th April 2015 whether in the context of the NHS or private provision of services.

This requires the Crown to show an ulterior offence a breach of duty and that if that breach had not occurred nor would the ill treatment or wilful neglect or at least that it would have been less likely to occur.

Again various important definitions are provided within the act and if found guilty before either the Magistrates or the Crown Court the maximum sentence is a fine. The court also have the ability to impose orders requiring the body to take steps to ensure there are not further breaches (Remedial Order). The court can also order that details of the offence, the fact of conviction, the fine and the terms of any Remedial Order be publicised (Publicity Order). Breach of either of these orders is a separate criminal offence.