5 Basing the Offence on Conduct or Outcomes (Q5)
5.1 In the consultation document, the Scottish Government argued that the proposed offence should be based on the conduct of the individual or organisation, rather than based on any harm caused as a result of their actions. The rationale for this was that:
- No measure of deliberate neglect or mistreatment is acceptable and the law should reflect this.
- If a threshold of harm was set out in legislation, this could give rise to a situation where two people were subjected to the same ill-treatment or neglect by the same worker but because one was more seriously harmed than the other, a prosecution could only be brought in respect of the more seriously harmed individual.
- Setting a harm threshold may give rise to uncertainty about when the offence would apply.
- Neither the Mental Health (S) Act 2003 nor the Adults with Incapacity (S) Act 2000 define a required level of harm, and therefore to establish one for the purposes of the new offence would create an inconsistency.
5.2 Question 5 in the consultation document asked respondents' views about this issue.
Question 5: Do you agree with our proposal that the new offence should concentrate on the act of wilfully neglecting, or ill-treating an individual rather than any harm suffered as a result of that behaviour?
5.3 Altogether, 99 respondents responded to Question 5. Table 5.1 below shows that 85% agreed with the proposal to focus on the act of wilful neglect, rather than any outcome from that behaviour, and 11% disagreed. Four respondents (4%) did not tick 'yes' or 'no' and expressed unclear or mixed views about this issue.
5.4 All the local authority respondents and all the scrutiny / regulatory organisations indicated support for the proposal. Supporters of the proposal also included seven respondents who did not feel that the new offence was needed.
5.5 All of the law organisations disagreed with the proposal.
Table 5.1: Question 5 - Do you agree with our proposal that the new offence should concentrate on the act of wilfully neglecting or ill-treating an individual rather than any harm suffered as a result of that behaviour?
|Third sector service provider / service user organisations||12||92%||-||0%||1||8%||13||100%|
|Professional associations, support agencies and trade unions||7||58%||3||25%||2||17%||12||100%|
|Scrutiny / regulatory bodies||10||100%||-||0%||-||0%||10||100%|
|Adult / child protection groups or partnership bodies||8||89%||1||11%||-||0%||9||100%|
|Third sector representative / co-ordinating agencies||7||78%||1||11%||1||11%||9||100%|
Percentages do not all total 100 due to rounding.
5.6 A total of 91 respondents made comments at Question 5. A major theme in these comments was a repeated call for a clearer definition of 'ill-treatment' and 'neglect'. This call came both from those who had indicated support for the proposal and those who did not. The issues raised by respondents are discussed below.
Respondents' reasons for agreeing with the proposal
5.7 The 84 respondents who agreed that the offence should focus on conduct rather than outcomes gave the following reasons for their views, covering issues of consistency, standards and conduct, and practical application:
- The proposal would be consistent with similar offences set out in the Mental Health (S) Act 2003 and the Adults with Incapacity (S) Act 2000. Where actual harm is suffered, other legislation could apply.
- It will improve standards and accountability, and send out a message that no level of neglect or mistreatment is acceptable.
- Focusing on conduct rather than outcomes may act as a greater deterrent.
- It is difficult to prove that certain actions or omissions had the effect of causing harm, particularly in relation to psychological harm and harm to vulnerable individuals (i.e. those with mental or cognitive disabilities) who may not be able to communicate harm / pain.
- It would be impractical to develop a threshold of harm.
- Harm may not result from unacceptable conduct, but unacceptable conduct should still be punished.
- Different individuals will have different thresholds of harm / pain, and so the measure of this would be subjective.
5.8 Respondents who agreed with the proposal, however, often did so with significant caveats. Most of these related to the need for clarity about 'what sort of conduct would constitute wilful neglect or ill-treatment'. However, NHS respondents also noted that such acts are already covered by professional regulatory frameworks.
Respondents' reasons for disagreeing with the proposal
5.9 Ten of the 11 respondents who disagreed with the proposal were organisations not in favour of the creation of a new offence. The arguments put forward by respondents disagreeing with the proposal were complex and detailed, and often included a discussion of different scenarios. In addition, many of the arguments echoed the reasons that respondents gave for disagreeing with the proposal to create a criminal offence of 'wilful neglect' or 'ill-treatment'. Law organisations offered slightly different reasons for disagreeing and these are presented first, before turning to the reasons given by other respondents.
5.10 The reasons given by the law organisations for disagreeing with the proposal in Question 5 are presented below. They highlight concerns about applying the law, and raise issues about the impact of the proposal on caring professions, and consistency with other legislation:
- A threshold for harm would need to be reached for a person's conduct to be serious enough to amount to an offence. Harm must occur before a criminal offence can occur.
- Contrary to the statements made in the consultation document, not setting a threshold for harm is likely to result in more uncertainty than setting one.
- 'Wilful neglect' is a broad term which could potentially encompass acts that are properly, reasonably and responsibly undertaken (e.g. triaging patients or taking decisions not to allocate resources in certain circumstances).
- It would be difficult to define 'wilful neglect' without some reference to harm.
- It will deter individuals from entering social care professions.
- The approach proposed is inconsistent with the approach proposed in relation to establishing a statutory duty of candour - which suggests that levels of harm can be defined and events should be disclosed to relevant persons on the basis of the level of harm an individual suffers.
5.11 Other respondents gave the following reasons for disagreeing, again referring to issues of implementation, as well as the impact on professional practice:
- The absence of a threshold for harm may result in a significant number of investigations that nevertheless do not result in prosecution (since if no harm has occurred, it will be more difficult to assess whether neglect or ill-treatment has occurred).
- Introducing an offence without a threshold of harm might act as a disincentive to establishing an open, transparent learning culture within services. It will create a culture of fear and litigation.
- Without a stated harm threshold, the offence could give rise to unduly disproportionate penalties among those found guilty of wilful neglect or ill-treatment - where all actions (regardless of their effect) are given the same penalty.
5.12 One medical professional support body suggested that the proposals were inconsistent with the recommendations made by the National Advisory Group on the Safety of Patients in England (established following the inquiry into events at the Mid Staffordshire NHS Foundation Trust), which called for an offence of wilful neglect or ill-treatment to apply only to 'egregious acts or omissions that cause death or serious harm'.
The need for clear definitions
5.13 As noted above, respondents repeatedly emphasised the need for clear definitions of 'ill-treatment' and 'wilful neglect' - often highlighting scenarios where practitioners may make reasonable and deliberate decisions not to treat an individual, for example, to allow them to die with dignity.
5.14 The law organisations, in particular, suggested that, without clear definitions, the practical application of the offence would be inconsistent, would require considerable interpretation, and potentially result in unexpected adverse consequences.
5.15 Respondents often expressed concerns about the difficulty of defining these terms unless the outcomes are taken into consideration. There were also concerns about how neglect and ill-treatment could be defined to distinguish it from genuine mistakes and errors on the one hand, and 'poor standards' (which can result from a lack of resources) on the other. Respondents pointed out that, without a clear definition of 'wilful neglect', there was a risk that health and social care professionals would be criminalised for mistakes or for prioritising their workload due to pressures on resources, staff and time.
5.16 Respondents also commented that clear definitions were required to make it clear where the legislation would be used, and where it would be more appropriate to use existing professional regulation or local disciplinary arrangements.
Suggestions about definitions
5.17 In relation to comments about the need for clear definitions, a few respondents made suggestions about what a definition for 'wilful neglect' or 'ill-treatment' should encompass. For example:
- That an individual is in a position of trust and abused that position
- That there has been a breach of a duty of care, and that breach has been both 'gross' and 'without reasonable excuse'
- The definition of 'wilful neglect' could be linked to (but not defined by) national care standards
- The definition should include a reference to the frequency of an act or omission (to distinguish between isolated incidents and repeated patterns of neglect / ill-treatment)
5.18 There was also a view that the new offence in Scotland should be consistent with the steps being taken in England and Wales in relation to the creation of a similar offence. The point was made that regulated health and care professionals move freely between the four UK countries; therefore differences between the countries' legal definitions of unacceptable professional behaviour should be avoided as they might gradually:
- Result in differences in practice across the UK, and
- Make it more difficult for the regulatory bodies to set UK-wide standards and hold all their registrants to account equitably.
5.19 Finally, although not directly related to the question of definitions, there was a view that the legislation should aim to reflect the positive NHS values as set out in the 2020 Workforce Vision:
- Care and compassion
- Dignity and respect
- Openness, honesty and responsibility
- Quality and teamwork.
Email: Dan Curran