Publication - Research and analysis

Proposals for an Offence of Wilful Neglect or ill-treatment in Health and Social Care Settings: Consultation Analysis

Published: 5 May 2015
ISBN:
9781785443237

Report from the independent analysis of the consultation on proposals for a new criminal offence of ill-treatment or wilful neglect in health and social care settings.

Proposals for an Offence of Wilful Neglect or ill-treatment in Health and Social Care Settings: Consultation Analysis
4 Which Care Settings Should be Covered by the Offence

4 Which Care Settings Should be Covered by the Offence

4.1 The first section of the consultation document focused on how an offence of wilful neglect or ill-treatment should be defined. The Scottish Government set out its view that the offence should cover both health and social care settings in both the statutory and third sectors. Furthermore, the Scottish Government believed that the offence should be restricted to formal health and social care settings, but that informal arrangements for care (where care is provided on the basis of a family relationship or friendship, where there is no contract of employment) should not be included.

4.2 Annex A of the consultation document included a provisional list of professions which the Government envisaged being covered by the proposed offence.

4.3 The consultation document also set out the Government's view that the proposed offence should cover all formal situations where health care is provided to children, but asked for views about whether social care services for children should be covered (as the range of social care services for children is different to those delivered to adults).

4.4 The consultation asked four questions:

Question 1: Do you agree with our proposal that the new offence should cover all formal health and adult social care settings, both in the private and public sectors?

Question 2: Do you agree with our proposal that the offence should not cover informal arrangements, for example, one family member (generally termed unpaid carer, or carer) caring for another?

Question 3: Should the new offence cover social care services for children, and if so which services should it cover? Please list any children's services that you think should be excluded from the scope of the offence and explain your view.

Question 4: Should the offence apply to people who are providing care or treatment on a voluntary basis on behalf of a voluntary organisation, whether on a paid or unpaid basis?

Whether the offence should cover all formal health and adult social care settings (Q1)

4.5 Altogether, 99 respondents replied to Question 1. Table 4.1 below shows that 91% were in favour of the proposal that the offence cover all formal health and adult social care settings (both in the private and public sectors), while 3% were not in favour. In addition, 6% of respondents did not tick either 'yes' or 'no' and made comments in response to the question which were unclear (i.e. they expressed neither agreement nor disagreement, they expressed mixed views, or they made comments that did not directly address the question).

Table 4.1: Question 1 - Do you agree that the new offence should cover all formal health and adult social care settings, both in the private and public sectors?

Respondent type Yes No Unclear Total
n % n % n % n %
NHS 19 100% - 0% - 0% 19 100%
Local government 16 94% - 0% 1 6% 17 100%
Third sector service provider / service user organisations 12 100% - 0% - 0% 12 100%
Professional associations, support agencies and trade unions 11 85% 1 8% 1 8% 13 100%
Scrutiny / regulatory bodies 10 100% - 0% - 0% 10 100%
Adult / child protection groups or partnership bodies 8 100% - 0% - 0% 8 100%
Third sector representative / co-ordinating agencies 7 78% - 0% 2 22% 9 100%
Law organisations - 0% 2 67% 1 33% 3 100%
Individual respondents 7 88% - 0% 1 13% 8 100%
Total 90 91% 3 3% 6 6% 99 100%

Percentages do not all total 100 due to rounding.

4.6 In total, 93 respondents made comments at Question 1.

4.7 Among the 90 respondents who indicated support for the proposal were 11 respondents who disagreed with (or questioned) the need for legislation in this area. These respondents expressed their serious reservations about the proposal for new legislation, but said that 'if the proposal is to go ahead, then it should cover all health and adult social care settings'.

4.8 The three respondents who ticked 'no' to Question 1 were all opposed to the introduction of the new criminal sanction, and their comments at Question 1 largely focused on this issue rather than on answering the question asked. One of these three respondents did address the question, stating: 'In the event that an offence is considered justified and necessary, there appears to be no cogent reason to limit this to public settings, or to private settings, only.'

4.9 Four of the six respondents who expressed unclear views were also opposed to the introduction of the new criminal offence. These respondents stated that they supported the policy intent behind the proposals, but did not necessarily feel that the creation of a criminal sanction was justified. This group of respondents did not generally address the question asked.

Respondents' reasons for agreeing with the proposal

4.10 Those who ticked 'yes' or who said they agreed that the new offence should cover all formal health and adult social care settings in the private and public sectors, gave the following reasons for their views, focusing on issues of consistency, integration and service standards:

  • The proposal was seen to be fair. Respondents argued that all service users have the right to be protected, irrespective of care setting.
  • The proposal would provide protection to people who are not covered by the Mental Health (S) Act 2003 or the Adults with Incapacity (S) Act 2000 (thus addressing a gap in current legislation) - this view was particularly prevalent amongst local authorities.
  • The proposal was seen to be consistent with existing legislation, and with efforts to integrate health and social care.
  • The proposal would lead to better standards of care and consistency of care across different settings - again, this was a view put forward by local authorities.
  • The offence would convey a clear message that neglect and mistreatment in health and care settings is unacceptable and would result in serious consequences.

4.11 Among those who ticked 'yes' at Question 1, there was a view that the offence should also apply to:

  • Third sector agencies delivering health and social care, and
  • Not only the individual accused of wilful neglect or ill-treatment, but also their supervisor, the care home owner and / or agency managers.

4.12 Both of these issues were also raised in response to other questions in the consultation.

4.13 There was some disagreement about whether the offence should apply to (or could apply to) care at home services and personal assistants employed directly by a person receiving care (for example, through self-directed support arrangements). In general, respondents (including all local authority respondents) thought it should apply to these types of services. However, a few respondents thought it should not, while others thought it may be difficult to police care in people's own homes. Those who thought personal assistants, in particular, should be exempt from the legislation argued that the responsibility for not allowing neglect / ill-treatment to happen would, in this case, lie with the employer i.e. the person or their informal carer. Furthermore, standards of care would also be defined by the employer and any incidence of wilful neglect or ill-treatment by personal assistants would be dealt with through employment law or existing criminal law.

Comments about the list of Health and Social Care Professionals in Annex A

4.14 Respondents often made comments about the list of health and social care professionals listed in Annex A of the consultation document. In general, this list was perceived to be incomplete, particularly in relation to the identification of social services professionals.

4.15 While some respondents made suggestions for additional groups to be included in the list,[3] others believed it would be impossible to compile a definitive list of all health and social care professionals, and that any attempt to do so would inevitably result in large sections of the workforce being mistakenly excluded. This group suggested instead that a clear, but more general definition of 'professionals' (for example, 'all individuals paid through a contractual arrangement to provide care or support') would be preferable.

4.16 A few respondents also questioned whether the proposed offence ought to be extended to include education professionals and educational settings.

Calls for clearer definitions

4.17 There were frequent calls for clear definitions of 'wilful neglect' and 'ill-treatment' before any legislation is introduced, and the point was made that the consultation document itself interchangeably used the terms 'neglect' for 'wilful neglect' and 'mistreatment' for 'ill-treatment'. The request for clear definitions of these terms was made, not only in comments at Question 1, but across most of the other questions too. Respondents wanted to know how 'wilful neglect' was distinguished from 'clinical negligence' or 'criminal neglect' (both of which are already subject to appropriate sanctions). Moreover, since 'neglect' is effectively a non-action, respondents queried whether it would always be possible to recognise when 'neglect' had taken place. There was also a question about how 'wilful neglect' would be differentiated from genuine error.

4.18 Some respondents suggested that the creation of a precise definition of 'wilful neglect' is likely to be challenging. There were also concerns that practitioners working in certain areas of medicine that require greater degrees of professional judgement and decision-making would be at risk of being accused of wilful neglect. Other respondents (including those representing law organisations) pointed out the difficulties of proving intent, which is implied by the use of the word 'wilful'.

4.19 While respondents welcomed the statement that the offence is not intended to cover instances of genuine error or accident, they were concerned that this distinction may be lost unless there were clearer definitions.

4.20 Respondents also wanted clearer definitions for the terms 'formal' and 'setting', particularly in relation to self-directed support arrangements delivered in people's homes. It was also noted that health and care professionals can work across a very wide range of settings, not only including health centres, hospitals, care homes and private practices, but also in the professional's own home, in the service user's own home, and in commercial premises.

4.21 Definitions of 'avoidable' and 'unavoidable' harm, and the differences between 'competence' and 'conduct' were also requested.

Concerns

4.22 Respondents who broadly agreed with the proposal that the new offence should cover all health and adult social care services in the private and public sectors nevertheless raised some concerns about possible unintended consequences. These largely echoed the unintended consequences identified by respondents who were opposed to the creation of the new offence as described in Chapter 3.

4.23 Respondents particularly highlighted the risk that the proposals would:

  • Undermine efforts to move towards a more open and transparent culture within health and social care services (where adverse events are disclosed and reviewed regularly to promote learning and improvement) and lead to a blame culture
  • Deter individuals from entering health and social care professionals - thus exacerbating, in some areas, what is already a depleted workforce
  • Result in police / criminal investigations impeding the necessary safeguarding activities of local authorities and regulators, and hinder services from conducting their own reviews and learning lessons.

4.24 There was also a concern that there would likely be a cost to local authorities and other care providers from implementing the new legislation, in terms of staff training and awareness raising, and there was a view that the Scottish Government should meet these additional costs.

Whether the offence should cover informal arrangements (Q2)

4.25 The second question in the consultation document asked respondents if they agreed that the offence should not cover informal arrangements such as one family member (unpaid carer) caring for another. Altogether, 92 respondents replied to this question. Table 4.2 shows that nearly three-quarters (73%) agreed that the offence should not cover informal caring arrangements, and just over a fifth (22%) disagreed - i.e. these respondents thought the offence should include informal caring arrangements. Five respondents (5%) did not tick either 'yes' or 'no', and expressed unclear or mixed views in their comments.

4.26 The analysis of respondents' comments at Question 2 suggested that there may have been some confusion about what this question was asking. (See paragraphs 4.30 and 4.31 below.) Therefore, the figures presented in Table 4.2 should be treated with caution.

Table 4.2: Question 2 - Do you agree with our proposal that the offence should not cover informal arrangements?

Respondent type Yes No Unclear Total
n % n % n % n %
NHS 13 72% 4 22% 1 6% 18 100%
Local government 16 94% - 0% 1 6% 17 100%
Third sector service provider / service user organisations 6 46% 6 46% 1 8% 13 100%
Professional associations, support agencies and trade unions 8 67% 4 33% - 0% 12 100%
Scrutiny / regulatory bodies 6 86% - 0% 1 14% 7 100%
Adult / child protection groups or partnership bodies 7 78% 2 22% - 0% 9 100%
Third sector representative / co-ordinating agencies 3 50% 2 33% 1 17% 6 100%
Law organisations 2 100% - 0% - 0% 2 100%
Individual respondents 6 75% 2 25% - 0% 8 100%
Total 67 73% 20 22% 5 5% 92 100%

Percentages do not all total 100 due to rounding.

4.27 In total, 87 respondents made comments at Question 2.

Respondents' reasons for wanting to exclude informal arrangements

4.28 The respondents who ticked 'yes' at Question 2 (who thought that the new offence should not cover informal caring arrangements) offered the following reasons, relating to the nature of informal care and the potential impact on carers, as well as wider legal issues. Some of these points echoed statements made in the consultation document:

  • There are no legal or contractual obligations upon 'informal carers' to provide care and no contracts that define role, responsibility and outcomes; thus they could not be prosecuted for failing to provide care.
  • Unpaid carers are not professionally trained or subject to professional codes of conduct.
  • Carers might be reluctant to ask for help when they need it, or to report incidents of unintended harm for fear of criminal sanctions.
  • It would deter people from providing informal care-giving and support, which plays a crucial role helping people to remain independent in their homes.
  • There are already procedures in place to address wilful neglect / ill-treatment in informal settings through adult support and protection legislation.
  • Common law would cover situations of 'informal care'.
  • It would be difficult to prove the offence in the context of informal arrangements.

Respondents' reasons for wanting to include informal arrangements

4.29 Among the 22% of respondents who ticked 'no' at Question 2 (who thought the new offence should cover informal caring arrangements), the main reason given was that it would be unfair and inequitable not to do so. Respondents suggested it would be 'perverse' to exclude informal arrangements where neglect can also take place, and that there was no 'moral justification' for excusing wilful neglect simply because it involved a family relationship. Respondents noted that there have been 'a number of high-profile incidents of family members' neglect and ill-treatment of very vulnerable people in their care'. Respondents thought that no individual should receive less protection from wilful neglect or ill-treatment than any other individual. This group of respondents also believed that:

  • Including informal arrangements in the legislation would help to raise public awareness about the 'hidden harm' that may be present in informal caring arrangements.
  • Not including informal arrangements would: (i) create a 'legal anomaly' and introduce a greater inconsistency than the proposed legislation was supposed to address in the first place, and (ii) cause uncertainty for paid staff who may have concerns about a family member's conduct.

4.30 It was not clear whether all the respondents who ticked 'no' at Question 2 were aware of the statement in the consultation document that neglect or ill-treatment by a carer can already be prosecuted as an offence under existing statute.

4.31 There may also have been some confusion among respondents about the wording of Question 2. For example, one respondent who ticked 'no' at Question 2 nevertheless stated that they agreed that family members providing care should not be prosecuted, since existing legislation would address abuse among this group. However, this respondent went on to say that situations in which families 'informally contract' with non-family members to deliver care to a relative should be included.

Concerns raised by respondents

4.32 Respondents who thought that 'informal' care arrangements should be covered by the offence (i.e. those who ticked 'no' at Question 2), highlighted some concerns. These largely echoed the reasons given by those who thought 'informal' arrangements should not be covered. (See 4.27 above.) For example:

  • The proposed offence might deter informal and unpaid carers from providing care.
  • Wilful neglect / ill-treatment could be difficult to substantiate in informal circumstances.
  • The legislation would need to be framed carefully to avoid criminalising carers who are not getting adequate support and who are struggling to cope.

Clarification about the relationship between 'informal care', self-directed support and other caring arrangements

4.33 Respondents frequently raised the issue of self-directed support. In general, respondents (including all local authority respondents) thought that self-directed support (SDS) arrangements - where a person in need of care can contract directly with 'personal assistant' to provide that care in their own home - should be covered by the offence. The point was made that if these arrangements were not included, it would result in a lower level of protection for people who are arranging their own care. However, this was not a unanimous view, and a few respondents gave reasons (as discussed above in relation to Question 1) why this would not be appropriate.

4.34 Several respondents commented that the question of whether 'informal care' should be covered by the offence was a complex issue which required further consideration. At the same time, there were repeated calls for clarification about what the consultation document referred to as 'informal care'. Respondents also wanted clarification about the position of people who could reasonably be viewed as both paid and unpaid carers for the same individual.

4.35 Other scenarios highlighted by respondents as needing clarification regarding the potential for liability in cases where: (i) an unpaid carer who is also a legal guardian has responsibility for contracting with personal assistants and (ii) a non-family member is paid (for example, through SDS, attendance allowance or carers' allowance) to provide care or other support (such as cleaning or shopping), but is not employed on a contract.

'Informal care' is not equivalent to care at home

4.36 Respondents emphasised that the definition of 'informal care' should not be linked in any way with the concept of care provided in an individual's own home. It was pointed out that current policy aims to shift the balance of care from institutional to community settings, and to support people to remain independent in their own homes for as long as possible. As a result, many formal health and care services are now delivered in people's homes.

Need to demonstrate why existing legislation is not sufficient

4.37 One third sector respondent supported the view that it would not be appropriate for the proposed offence to apply in situations where an informal caring arrangement exists. The respondent acknowledged the statement in the consultation document that, in such cases, 'existing offences in statute would apply'. However, this respondent called for the Scottish Government to demonstrate which existing offences this statement refers to, and to explain why these are not also sufficient as a framework to cover wilful neglect or ill-treatment by health and social care professionals.

Whether the offence should cover social care services for children (Q3)

4.38 The consultation document stated the Scottish Government's position that the proposed offence should include all formal situations where health care is provided to children, for example, in NHS hospitals or independent hospitals. However, since the range of social care services provided to children is different to those delivered to adults, Question 3 in the consultation document sought views about whether social care services for children should be covered by the offence.

4.39 A total of 88 respondents replied to Question 3. Table 4.3 shows that 88% thought the new offence should cover social care services for children, and 3% thought it should not. Eight respondents (9%) did not tick either 'yes' or 'no' at Question 3 and they made comments that expressed unclear or mixed views.

4.40 All of the NHS respondents agreed that the new offence should cover social care services for children. In addition, 12 of the 77 who indicated agreement with the question were respondents who disagreed with the need for the new offence but nevertheless thought that if it is created, it should cover all formal social care services for children.

Table 4.3: Question 3 - Should the new offence cover social care services for children?

Respondent type Yes No Unclear Total
n % n % n % n %
NHS 18 100% - 0% - 0% 18 100%
Local government 14 88% 1 6% 1 6% 16 100%
Third sector service provider / service user organisations 9 90% - 0% 1 10% 10 100%
Professional associations, support agencies and trade unions 10 83% 1 8% 1 8% 12 100%
Scrutiny / regulatory bodies 6 86% - 0% 1 14% 7 100%
Adult / child protection groups or partnership bodies 6 67% 1 11% 2 22% 9 100%
Third sector representative / co-ordinating agencies 6 86% - 0% 1 14% 7 100%
Law organisations 2 100% - 0% - 0% 2 100%
Individual respondents 6 86% - 0% 1 14% 7 100%
Total 77 88% 3 3% 8 9% 88 100%

Percentages do not all total 100 due to rounding.

4.41 Altogether, 83 respondents made comments at Question 3.

4.42 The three respondents who indicated disagreement with the proposal (i.e. they ticked 'no') all stated that existing legislation already addresses offences against children. One respondent cited the Children and Young Persons (S) Act 1937, section 12 (Cruelty to Persons under Sixteen), which makes it an offence to wilfully neglect, ill-treat or abandon a child under 16 whatever the setting.

4.43 The eight respondents whose views are shown in the table above as 'unclear' generally wanted further information before responding to the question. In particular, they wanted clarification about the existing legislation which was in place to address offences against children. Some respondents within this group, like those who ticked 'no', stated that existing legislation already existed to protect children.

Respondents' reasons for including children's social care services in the offence

4.44 In general, the 88% of respondents who supported the idea that the new offence should cover social care services for children, gave reasons that related to consistency and equity. Respondents argued that 'children and young people should be afforded the same rights as adults', and there was a view that 'where there is a contractual basis to provide care, the person taking on that role should be covered by the offence'. Respondents thought it would be 'illogical', 'perverse' and 'anomalous' if children were not given the same level of protection regarding their care as that provided to adults.

4.45 Respondents often noted that there is existing legislation which protects children from neglect, ill-treatment and abuse. However, some suggested that they would welcome a review of this legislation (and in particular, the 1937 Act referred to above), to ensure 'its effectiveness in the 21st century'. One respondent noted that the 1937 Act only applies where the wilful ill-treatment or neglect 'causes the child unnecessary suffering or injury to health' - thus suggesting that it may not be possible to prosecute an act of wilful neglect or ill-treatment under this legislation, unless it could be proven that harm had been suffered as a result of that act. (The issues of intent and harm are discussed further in Chapter 5.)

Which services should be included

4.46 Respondents argued that the new offence should cover both residential and community care settings for children, and they identified the following specific services for children which they thought should be included:

  • Respite care
  • Short breaks
  • Residential care
  • Residential schools
  • Schools for children with learning disabilities and long term conditions
  • Secure care
  • Adoption services
  • Child-minding
  • Early years services (including private nurseries)
  • Home-based support services
  • After school care
  • Children and Family social work services
  • Children's hospices run by the third sector.

4.47 Although Question 3 concerned only the inclusion of social care services, some local authority respondents also suggested that certain types of health services for children should be covered by the offence, including: young person's units; children's hospitals or hospices; and child and adolescent mental health services.

4.48 Some respondents also suggested that schools (including independent and private boarding schools and other educational establishments) and young offender institutions should be covered by the proposed offence.

4.49 There was disagreement about whether kinship care and foster care should be included, with some respondents commenting that there is already sufficient legal provision to protect children in these situations, and others suggesting that any situation in which a child is cared for by someone other than their immediate family members should be included.

Other issues raised by respondents

4.50 Many of the respondents who indicated support for the new offence to cover social care services for children nevertheless pointed out that child protection is a closely regulated field, and that a substantial body of existing legislation already allows criminal prosecution for cases of cruelty or neglect of children. There was a concern (not only among those respondents who were opposed to the creation of the new offence, but also among other respondents) that if the proposed new offence covered children's services, the legislation and associated guidance in this area could become overly complicated. Respondents repeatedly called for clarification about how the proposed new offence would enhance the existing legislation in this area, or a commitment to ensuring that the new offence contributes meaningfully to the existing legislative frameworks without creating duplication.

Whether the offence should apply to the 'voluntary' sector (Q4)

4.51 Question 4 in the consultation sought respondents' views about whether the proposed offence of wilful neglect or ill-treatment should cover people providing care or treatment on a voluntary basis on behalf of a voluntary organisation.

4.52 A total of 91 respondents replied to Question 4. Table 4.4 below shows that 85% were in favour of the proposal that the offence should apply to people who are providing care or treatment on a voluntary basis on behalf of a voluntary organisation and 8% were not in favour. A further 8% of respondents made comments in response to the question without clearly indicating agreement or disagreement (e.g. they expressed mixed views, or they made comments that did not directly address the question).

Table 4.4: Question 4 - Should the offence apply to people who are providing care or treatment on a voluntary basis on behalf of a voluntary organisation, whether on a paid or unpaid basis?

Respondent type Yes No Unclear Total
n % n % n % n %
NHS 18 100% - 0% - 0% 18 100%
Local government 16 100% - 0% - 0% 16 100%
Third sector service provider / service user organisations 10 83% 1 8% 1 8% 12 100%
Professional associations, support agencies and trade unions 8 73% 2 18% 1 9% 11 100%
Scrutiny / regulatory bodies 4 57% 1 14% 2 29% 7 100%
Adult / child protection groups or partnership bodies 9 100% - 0% - 0% 9 100%
Third sector representative / co-ordinating agencies 6 75% 1 13% 1 13% 8 100%
Law organisations 1 50% 1 50% - 0% 2 100%
Individual respondents 5 63% 1 13% 2 25% 8 100%
Total 77 85% 7 8% 7 8% 91 100%

Percentages do not all total 100 due to rounding.

4.53 There was a clear balance of opinion in favour of the offence being applicable to volunteers operating on behalf of voluntary organisations. All those representing statutory service providers / commissioners (i.e. local authorities and NHS bodies) and partnership bodies agreed with this proposal, while views were more mixed amongst other groups.

4.54 Half the respondents who had initially expressed reservations about the introduction of the offence, nevertheless agreed that volunteers working on behalf of voluntary organisations should be included within the scope of the legislation should it be introduced.

Views in support of including those providing care and treatment on a voluntary basis on behalf of a voluntary organisation

4.55 The comments from those agreeing that the offence should apply to those providing care on a voluntary basis on behalf of a voluntary organisation offered a range of reasons, which indicated that respondents had approached the question in a number of ways, with some focusing on voluntary organisations while others focused on individual volunteers. Thus, the reasons they gave for agreeing with the proposition covered both of these perspectives and included the following:

  • Those in receipt of care should have the same legal protection available regardless of the specific care arrangements in place, and the status of the organisation (statutory, voluntary or private) or the individuals delivering services should not be a factor.
  • Voluntary organisations and volunteers had a longstanding history in the care sector and indeed were playing an increasing role through outsourcing and models such as co-production, and any legislation had to recognise and take account of this.
  • Paid and unpaid workers had the same duty of care towards those receiving services.
  • The legislation should apply in all circumstances where there was a contractual arrangement in place to provide care services.
  • Services such as lunch clubs, meal on wheels and befriending services might be staffed by volunteers but were nevertheless 'formal' and should come within the remit of the legislation.

Views opposed to including those providing care and treatment on a voluntary basis on behalf of a voluntary organisation

4.56 Those who did not agree that the offence should apply to those providing care and treatment on a voluntary basis on behalf of a voluntary organisation (i.e. those who disagreed and those who did not give a clear overall view in their comments) highlighted the following issues: the existence of other legislation which covered this situation; the desirability of consistent arrangements across the UK; the possible absence of clear contractual arrangements and lines of supervision and responsibility; and the risk of deterring people from doing voluntary work. This group also raised the issues of the importance of recruitment, training and supervision of volunteers, and of the need for clear definitions should this proposal go ahead.

Comments relating to voluntary organisations

4.57 Those focusing on voluntary organisations in their comments were particularly clear that there was no reason for the offence not to apply, highlighting the fact that such organisations were often providing services on a commissioned basis, funded by the public purse, and therefore should be subject to the same scrutiny as other bodies. It was further suggested that commissioning bodies had a responsibility to satisfy themselves that all organisations delivering services on their behalf were operating to appropriate standards.

Comments relating to volunteers working on behalf of voluntary organisations

4.58 Many respondents, however, discussed the distinct circumstances relating to care services being delivered by volunteers on behalf of voluntary organisations, and the following points were made:

  • People providing care services are in a position of trust, and voluntary organisations have a duty to make sure they have appropriate governance arrangements in place (covering disclosure checks, training, supervision, etc.) for all those working on their behalf, regardless of whether they are paid or not. (The risk of organisations 'over-regulating' volunteers was, however, noted as a concern by one respondent.)
  • Like paid staff, volunteers should understand the values and ethos of the organisation they are working for, should adhere to a code of conduct and understand that they have a duty of care to those receiving services, and organisations had a responsibility to ensure that volunteers were aware of their responsibilities and obligations.
  • While it was appropriate for the legislation to encompass volunteers, those operating in such a capacity may need additional training and support to make them aware of the legal framework and their related responsibilities.

4.59 Others, however, discussed the nature of the organisation-volunteer relationship as a key to whether an individual volunteer should be subject to the law. Some respondents thought that the existence of a formal contract would be required for an individual to be held responsible, and queried how the law would be applied in practice if this was not the case. One respondent, suggested, further, that 'volunteering' inherently implied a degree of flexibility in relation to how (and when) people worked, which may not, therefore, be compatible with a contractual duty to provide a set level of service. A further view was that the less formal relationship between volunteers and voluntary organisations itself created risk, and it was therefore more important that clients had legal protection in these circumstances.

4.60 There was also a suggestion (from the local authority sector in particular) that the organisation-volunteer relationship meant that the law should apply to the voluntary organisation and not the individual volunteers working on their behalf. Respondents offered two reasons for this view: (i) because they were responsible for the checking, training and supporting of volunteers, and (ii) because they were ultimately responsible for the conduct of the volunteer and the care provided.

4.61 Several respondents in this group acknowledged the argument that the risk of criminal prosecution may deter people from volunteering but suggested that this was either unlikely given the motivations of those interested in volunteering, or that this could be addressed through appropriate procedures and support from organisations. Indeed, several respondents offered the view that volunteers should benefit from the same standards of training and support as paid staff, and that including them in the scope of the legislation could have a positive effect in clarifying roles and responsibilities for those carrying out duties in a voluntary capacity. At the same time, there was also a view that volunteers were 'different' to paid staff with different obligations and standards and that, while they should be held accountable, this would need to be recognised in the drafting of the law.

4.62 Finally, one respondent queried whether it was appropriate for services for vulnerable groups to be provided by volunteers.

Definitional and drafting issues

4.63 Respondents raised a number of definitional issues in relation to this question. In addition to the call for a clear definition of 'wilful neglect' and 'ill-treatment', respondents also wanted clarification in respect of the term 'paid volunteer' as well as the phrase 'on behalf of a voluntary organisation'.

4.64 Respondents were concerned that the term 'voluntary' did not inadvertently encompass unpaid carers (including kinship care arrangements). There was calls for the drafting of the legislation to make it clear that the offence was intended to cover: (i) formal services or services akin to paid services, albeit that they may be delivered by volunteers and (ii) activities undertaken by a volunteer on behalf of an organisation, rather than in an a personal capacity.


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Email: Dan Curran