3 Views About the Creation of the Proposed New Offence
3.1 Chapters 4 to 8 of this report present respondents' views in relation to the questions set out in the consultation document. The consultation questions asked about specific issues related to the implementation of a proposed new criminal offence of wilful neglect or ill-treatment of people receiving care and treatment in health and social care settings. However, the consultation document did not explicitly invite comments about whether such an offence is needed or should be created.
3.2 Nevertheless, 18 of the organisations responding to the consultation (nearly one-fifth of all organisational respondents) questioned the need for the new offence, or expressed serious reservations about the proposal. These 18 respondents included 6 of the 19 NHS respondents; 5 of the 13 professional associations; and all three of the law organisations. The four remaining respondents in this group represented third sector and local government organisations.
3.3 These respondents emphasised their support for the general aim of the policy - i.e. that vulnerable individuals receiving health and social care should be protected from harm. However, they did not support the creation of a new criminal offence of wilful neglect / ill-treatment of people receiving treatment and care in health and social care settings.
3.4 In general, these respondents also went on to answer the individual consultation questions although their comments were often prefaced by statements such as:
'We do not agree with the introduction of an offence of wilful neglect or ill-treatment. However, if the proposal is to go ahead, then our view regarding this question is as follows….'
3.5 Thus, these respondents often indicated agreement with specific proposals despite their overall opposition to the creation of the offence.
3.6 Although this group comprised a minority of the respondents to the consultation, the extent to which their views might be held more widely is not clear, as the consultation document did not ask for views on whether the offence should be created. However, many of the comments made by this group were reflected in caveats and concerns expressed by other respondents.
3.7 Respondents who objected to the creation of the offence offered two broad viewpoints: (i) they did not consider the creation of a new offence to be necessary and (ii) they were concerned about the unintended consequences which might result from its creation.
Proposed new offence is unnecessary
3.8 Respondents did not think that the consultation document had made the case for introducing the new offence. In particular, respondents believed that existing legislation and current professional and regulatory arrangements were adequate to respond to situations of ill-treatment or neglect of people receiving health and social care services.
- Existing legislation is adequate: Respondents commented that, in addition to the provisions of the Mental Health (S) Act 2003 and the Adults with Incapacity (S) Act 2000 which were discussed in the consultation document, a range of other legislation including the Adult Support and Protection (S) Act 2007, the Children (S) Act 1995, the Children and Young People (S) Act 2014, the Health and Safety at Work Act 1974 and existing human rights legislation also offered protection and legal redress in this area. They pointed out that the consultation document had not referred to this wider body of legislation. Other respondents commented that existing common law was adequate to address issues of neglect and ill-treatment in health and social care settings.
While some respondents believed that this larger body of legislation made the proposed new criminal offence unnecessary, others emphasised that if a new criminal offence were created, it should at least take account of and / or be consistent with existing legislation. The need to learn from the limited use made of the provisions for criminal prosecution in existing mental health and adults with incapacity legislation was particularly noted.
The point was also made that the abuse of adults with learning difficulties and autism at Winterbourne View did not justify the creation of a new criminal sanction, as this situation would have been covered in Scotland by the Mental Health (S) Act 2003.
- Current professional regulation is adequate: Respondents noted that existing professional regulators (e.g. the General Medical Council, the General Dental Council, the Nursing and Midwifery Council, etc.) have the power to take action against their registrants if they are found to have mistreated a patient. These powers include the removal of an individual from the professional register, which effectively ends a healthcare professional's career. There were concerns that criminal investigations would results in delays to the investigations conducted by regulatory bodies. The point was also made that the process of criminal prosecution would require a higher standard of proof than regulatory proceedings do. Therefore, there was the potential for the new offence to result in less protection of individuals than the current regulatory systems already provide. There was a suggestion that if the Scottish Government needed to address a gap in existing professional regulation (for example, in relation to health care support workers or social care workers), then a more suitable method might be to establish additional regulatory bodies, rather than create unnecessary legislation. In general, respondents wanted much more detail about the relationship between the proposed criminal sanction and current regulatory frameworks.
- Intended beneficiaries do not require special protection: An organisational respondent with legal expertise pointed out that the provisions available through the Mental Health (S) Act 2003 and the Adults with Incapacity (S) 2000 Act were intended to protect vulnerable groups who might not have the capacity to engage in existing complaint, regulatory or disciplinary systems, and whose care providers have rights and obligations to take decisions for them. This respondent suggested that adults who have capacity, and are able to make decisions about their own treatment and engage with existing complaint systems, did not need a similar protection.
- There is no evidence that a criminal sanction would act as a deterrent: Respondents made the point that the consultation document had not provided evidence to show that the availability of a criminal sanction would act as a deterrent to the neglect or ill-treatment of people receiving health or social care services. Moreover, the abuse at Winterbourne View indicates that the possibility of prosecution had not acted as a deterrent in this case.
- There is no evidence of a widespread problem of ill-treatment or wilful neglect in Scotland: Respondents suggested that the creation of a criminal sanction seemed to be disproportionate to the problem that existed.
- Creating a criminal sanction is contrary to the findings of the Mid Staffordshire inquiry and the Winterbourne View report: In both these cases, recommendations focused on issues of leadership, staff training and support, organisational culture, regulation and inspection, etc. There was a view among respondents that creating a new offence risked not learning the lessons from these cases.
3.9 Respondents identified possible unintended consequences which could result from the introduction of a new criminal offence. These included:
- Cost: It was noted that the cost of investigations and court proceedings related to the criminal prosecution of doctors often runs into the tens or hundreds of thousands of pounds. There are additional costs for locum practitioners to cover the work of doctors or other healthcare professionals who are unable to work during an investigation. The payment of resultant fines levied against organisations was also raised. These are costs which would effectively be paid by the taxpayer, with a potential for impacting on budgets for frontline health and care services. There was a call for the proposals to be subject to a cost benefit analysis for each sector of the health and adult social care workforce.
- Undermining existing regulatory frameworks: Respondents believed that the proposed new legislation would result in making practitioners less willing to engage with, or accept fault in regulatory proceedings, or to participate in Significant Clinical Incident reviews, for fear that criminal proceedings may result. There was a view that if the new legislation was introduced, then there should be additional safeguards to protect clinical judgement and decisions about resource allocation and to prevent criminal prosecutions arising too easily from a complaint.
- Undermining a learning culture and culture of openness in health and social care services: There was concern that the proposed offence would undermine a learning approach to system failure, risk averse and instead encourage a blame culture and litigious action against health and social care staff. Concerns were also raised about the impact of the proposal on professional indemnity insurance arrangements and costs. Ultimately, it was suggested, the proposal may lead to increasing difficulties in recruiting to both frontline and leadership roles in health and social care services.
Some respondents specifically noted that the proposed new offence appears to contradict the aims of the Scottish Government's proposal to create a statutory duty of candour in health and social care services, since some 'disclosable events' (in relation to the duty of candour) could leave a practitioner open to possible criminal prosecution. Moreover, the fear of a criminal investigation might make a practitioner reluctant to inform others about a potentially 'disclosable event'.
- Poorer standards of care: Respondents thought that, in order to protect themselves from possible criminal prosecution, health and social care practitioners would begin to practice 'defensive care' (e.g. ordering unnecessary investigations), or 'over-treat' service users to the detriment of their comfort and personal wishes. There was also a perceived risk that organisations as a whole might become more risk-averse in the services they provided or the groups they worked with.
- Perceptions of poor care: There was a view that the creation of the offence would have a detrimental effect on perceptions of health and social care services and reinforce fears of poor care.
3.10 The remainder of this report will now consider respondents' replies to the consultation questions.
Email: Dan Curran