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Consequences of new ill-treatment offences could be disastrous for care providers, expert says


The first successful prosecution of two former care workers for wilful ill-treatment of vulnerable adults should bring home to providers the serious consequences of these offences, an expert has said.

Following the entry into force of the 2015 Criminal Justice and Courts Act, care providers may now be subject to unlimited fines or remedial or publicity orders should they be found liable for ill-treatment or wilful neglect of those in their care, according to regulatory expert Sean Elson of Pinsent Masons, the law firm behind Out-Law.com.

Two former workers at the Ashton House Nursing Home in Middleton, Rochdale were detained this week and permanently banned from working in caring roles, the BBC reported. The pair admitted to two counts of ill treatment of residents at the facility, which specialises in the care of people with dementia and Alzheimer's disease.

The Criminal Justice and Courts Act created parallel offences of ill treatment and wilful neglect; one by individual care workers and one by care providers.

Individual care workers guilty of causing ill treatment or neglect to someone in their care are now subject to a maximum sentence of five years imprisonment; while individual and corporate care providers may be guilty of an offence if their activities are "managed or organised in a way which amounts to a gross breach of a relevant duty of care and in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur", Elson said.

"The care provider can be either an individual or corporation and the penalty is an unlimited fine," he said. "However, the court can also order both remedial and publicity orders if the care provider is found guilty. This can be disastrous for a care home business if they are required to publish the ill treatment or neglect by an individual in a local paper, for example."

"Because the care worker and care provider offences are so closely linked, it seems highly likely that in the event of a care worker being investigated by the police, the care provider also will be," Elson said.

Before the new offences came into force, there were no specific offences applicable to adults that were not subject to the 1983 Mental Health Act or otherwise lacking in legal capacity. Cases like this, with low levels of actual injury, could only be prosecuted as common assault with a maximum sentence of six months in prison, or under 1974's Health and Safety at Work Act.

The new offences were created in response to the recommendations of a review of patient safety in England, conducted by the National Advisory Group for the Safety of Patients in England. This review came about in response to the Francis Inquiry into failures by the Mid Staffordshire NHS Foundation Trust during the late 2000s, which resulted in poor care and high mortality rates among patients.

"The review found that there were specific criminal offences which addressed wilful ill-treatment or neglect of children, and ill-treatment or wilful neglect of adults who lack capacity or those subject to the Mental Health Act at the hands of those entrusted with their care," said Elson. "However, there was no specific offence in relation to adults with full capacity. Sections 20 and 21 of the 2015 Criminal Justice and Courts Act sought to remedy this."

"Providers must bear in mind that training for operational staff will be an important element of establishing that there has not been a gross breach. In event of an investigation for this offence, it is essential to seek legal advice," he said.

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