1. Introduction
Under Section 20 of the Criminal Justice and Courts Act 2015 it is a criminal offence for an individual to ill treat or wilfully neglect another individual of whom s/he has the care by virtue of being a care worker. A “care worker” is defined as anyone who, as paid work, provides social care for adults or health care for children or adults. The ‘wilful’ element of the neglect offence suggests that the perpetrator has acted deliberately or recklessly. Similarly, ‘ill-treatment’ is a deliberate act, where the individual recognised that s/he was inexcusably ill treating a person, or else was being reckless as to whether s/he was doing so. Genuine errors or accidents by an individual would therefore not be caught within the scope of this offence.
2. Care Worker Offence
Under this legislation a ‘care worker’ means an individual, who, as paid work, provides health care, social care, or a director or similar officer of an organisation that provides such care.
Paid work is when a person receives or is entitled to receive payment for carrying out care. This does not include:
- 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).
Health care provision includes all forms of health care provided for individuals relating to physical health or mental health. This also relates to 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 medical conditions which are classed as “excluded health care” as described in Schedule 4 of the Criminal Justice and Courts Act.
Social care provision includes all forms of personal care, physical support 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. This would not include a person whose provision of such care is merely incidental to the carrying out of other activities by the person.
An individual found guilty of an offence under this section is liable— on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both); or on a summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).
3. Care Provider Offence
The term ‘care provider’ means:
- a corporate body or unincorporated association that provides and / or arranges the provision of health care (other than excluded health care, see Schedule 4 ) or social care for an adult;
- an individual who is not the care provider, but provides health care or social care as part of health care or social care provided and / or arranged by the care provider, including where the individual is not the care provider but supervises or manages individuals providing health care or social care;
- a director or similar officer of an organisation which provides health care or social care as described;
- an individual providing such care and employs, or has made arrangements with, other people to assist him or her in providing such care.
A care provider commits an offence if:
- an individual who has the care of another individual, by virtue of being part of the care provider’s arrangements, ill treats or wilfully neglects that individual;
- if the care provider’s activities are managed or organised in a way which leads to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill treated or neglected, 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.
Relevant duty of care means a duty owed under the law of negligence, or a duty that would be owed under the law of negligence but for a provision contained in an Act, or an instrument made under an Act, under which liability is imposed in place of liability under the law of negligence, but only to the extent that the duty is owed in connection with providing, or arranging for the provision of, health care or social care.
A person arranging for the provisions of such care do not include a person who makes arrangements under which the provision of such care is merely incidental to the carrying out of other activities.
A breach of a duty of care by a care provider is a ‘gross’ breach if the conduct alleged to amount to the breach falls far below what can reasonably be expected of the care provider in the circumstances.
References made to providing or arranging for the provision of health care or social care do not include making payments under:
(a) regulations under section 57 of the Health and Social Care Act 2001 (direct payments for community services and carers);
(b) section 12A of the National Health Act 2006 (direct payments for health care);
(c) section 31 or 32 of the Care Act 2014 (direct payments for care and support).
