6 Views on the Application of the Offence to Organisations
6.1 This chapter presents views on the proposal that the new offence should apply to organisations as well as individuals. The consultation included two questions on whether, how, and in what circumstances the offence should apply to organisations.
Question 6: Do you agree with our proposal that the offence should apply to organisations as well as individuals?
Question 7: How, and in what circumstances, do you think that the offence should apply to organisations?
6.2 The points raised in response to these two questions covered similar ground and so these questions have been analysed together.
Views on whether the offence should apply to organisations as well as individuals (Q6)
6.3 In total, 97 respondents replied to Question 6. Table 6.1 below indicates that 96% of respondents agreed that the offence should apply to organisations as well as individuals, 2% disagreed, and 2% expressed unclear views (i.e. they did not tick 'yes' or 'no' to the question and it was not clear from their comments whether they agreed or disagreed).
6.4 It is clear that, with few exceptions, respondents agreed that the offence should apply to organisations as well as individuals. Nearly all of those who had reservations about the introduction of the proposed new offence nevertheless agreed that, should it be introduced, it should apply to both individuals and organisations.
Table 6.1: Question 6 - Do you agree with our proposal that the offence should apply to organisations as well as individuals?
|Third sector service provider / service user organisations||12||100%||-||0%||-||0%||12||100%|
|Professional associations, support agencies and trade unions||11||92%||1||8%||-||0%||12||100%|
|Scrutiny / regulatory bodies||7||100%||-||0%||-||0%||7||100%|
|Adult / child protection groups or partnership bodies||8||89%||-||0%||1||11%||9||100%|
|Third sector representative / co-ordinating agencies||9||100%||-||0%||-||0%||9||100%|
Percentages do not all total 100 due to rounding.
Reasons for agreeing with the proposal
6.5 Respondents offered two main - and inter-linked - reasons for believing that the proposed offence should apply to organisations as well as individuals. These related to the impact of the organisational context on the conduct of individuals, and the principle (moral or legal) of corporate responsibility, as noted below:
- The organisational context: A common view in the responses was that neglect or ill-treatment by an individual member of staff was often 'symptomatic of failings within the wider organisation'; others discussed how neglect and ill-treatment often arose where organisational and / managerial policies and practices gave rise to a culture of poor care.
- Corporate responsibility: Respondents highlighted: (i) the duty of care that organisations had to service users and staff, and (ii) their overall responsibility for the quality of care provided by those acting on their behalf, and for ensuring those delivering services are properly equipped and supported to do so. It was further argued that the principle of corporate responsibility and holding organisations to account would promote 'zero tolerance' and was 'at the heart of fostering an environment in which care is prioritised'.
6.6 Respondents were of the view that it was inappropriate to blame (or scapegoat) individual frontline staff members for systematic organisational failings, and that prosecuting individuals in this way would not necessarily address the need for wider service improvement. As such, respondents agreed that there should be the option to prosecute organisations too.
6.7 It was also suggested that including organisations within the scope of the legislation was: (i) consistent with not defining the offence in terms of actual harm caused, and (ii) afforded greater protection to service users, and (iii) may increase the chances of successful prosecutions by allowing all contributing factors to be assessed, and removing the need to identify a named individual who was directly responsible for the neglect or ill-treatment. (This was seen as a difficulty with existing legislation.)
6.8 Two further arguments in support of including organisations within the scope of the legislation focused on the principle of consistency with other legislation, and the potential benefits for service improvement:
- Consistency with other legislation: Here, respondents referred to other existing legislation which enabled organisations to be held to account, and saw no reason for the approach with this legislation to differ. They also suggested that consistency would aid clarity and understanding. Most commonly, respondents argued for consistency with the Mental Health (S) Act 2003 and the Adults with Incapacity (S) Act 2000, both of which already allowed for prosecution of organisations as well as individuals for comparable offences of wilful neglect and ill-treatment in respect of adults with mental disorders and learning disabilities and adults otherwise 'at risk'. Respondents also highlighted the Health and Safety at Work Act 1974 and the Corporate Manslaughter / Homicide Act 2007 which both allow for the prosecution of organisations. (It should be noted that some respondents cited these existing pieces of legislation as grounds for arguing that the proposed new offence was, in fact, not required.)
- Service improvement: A number of respondents thought the inclusion of organisations in the scope of the offence would play a useful part in broader efforts to improve standards of care and treatment. The risk of prosecution would, it was suggested, provide an incentive to organisations to ensure that procedures, practices and management arrangements were fit for purpose, and that sufficient resources were in place to provide an appropriate level of care.
Caveats, concerns and qualifications
6.9 Alongside the overall support for the offence to apply to both organisations and individuals, respondents also noted a range of qualifications, caveats and concerns.
6.10 The most common issue raised was the complexity of situations contributing to neglect and ill-treatment and the related difficulty of determining individual and organisational responsibility with regard to any particular incident. Respondents emphasised that the legislation needed to respond to a wide spectrum of situations. These ranged from those involving individual culpability only (e.g. where individual members of staff within well-managed organisations had wilfully mistreated service users and taken steps to hide this from colleagues and supervisors), to those where organisational culture and practices could be seen to have directly contributed to poor care amounting to wilful neglect and ill-treatment.
6.11 Most respondents saw a place for individuals and organisations to be held to account by the law. Some talked about joint or shared responsibility, while others highlighted the need to consider the circumstances of each case on its merits. Others, however, offered general 'rules' as to how the balance of responsibility might be determined, with two opposing perspectives offered:
- Liability should generally rest with organisations in the first instance, with individuals being held responsible only in instances where it can be shown that organisations had fulfilled all their duties.
- Liability should only rest with organisations where their operations had fallen far below expected standards, or where there was a clear breach of a duty of care which resulted in serious harm.
6.12 There was also recognition that it would not always be easy to determine the balance between individual and organisational culpability (e.g. the extent to which organisational systems and pressures had contributed to an offence; or the extent to which an individual had 'colluded' with the organisation). The responsibility of individual staff members to raise concerns about quality of care was also noted, and there were calls for guidance on this to be provided.
6.13 There were also concerns that extending the scope of the offence to organisations may:
- Not be conducive to creating a culture of openness and transparency that supports service improvement; it was further suggested that the threat of criminal action may be a disincentive to engaging with service improvement efforts
- Result in 'scapegoating', with organisations trying to blame individuals to avoid prosecution (and alternatively, individuals seeking to shift the blame to their employers)
- Deter service providers from taking on the care and treatment of high-risk clients, or influence care decisions made in individual cases
- Result in increased litigation against organisations, with costs of defending against a criminal action or civil pay-outs in turn impacting on funds available for frontline services.
6.14 As noted above, those agreeing with the proposal that the offence should apply to both organisations and individuals included respondents who were opposed to, or had significant reservations about, the introduction of the new offence. The comments from this group were, by and large, in line with the comments put forward by other respondents. There were, though, two issues raised by NHS respondents in this group in particular. The first related to situations where care workers were indemnified by their employer. It was suggested that a situation could arise whereby an individual care worker accused of wilful neglect took action against their employer claiming organisational failure and leading to the anomalous situation of an organisation taking action against itself. It was suggested that this could lead to a requirement for care workers to provide their own professional indemnity insurance - which would represent a significant cost to the individual and may deter people from seeking employment in this sector. The second issue related to the question of whether government ministers might ultimately be held to account for policy and funding decisions that impact upon the quality of frontline care and give rise to accusations of wilful neglect and ill-treatment.
Reasons for disagreeing with the proposal
6.15 A small number of respondents did not agree with this proposal (i.e. they either explicitly disagreed or provided comment without offering a clear view on the proposal itself). Such respondents either restated their overall view that the legislation was not required, or indicated that there may be difficulties in practice in prosecuting and applying the legislation to organisations. Both of these points were also raised by respondents who agreed with the proposal.
How the offence would be applied to organisations (Q7)
6.16 A small number of respondents addressed the issue of how the offence would be applied to organisations, with most noting concerns that this may pose difficulties in practice. There were, for example, concerns about determining the balance between individual and organisational culpability (as discussed above); how 'wilfulness' would be established at organisational level; and how the offence would be evidenced to allow a prosecution to proceed. The importance of differentiating between (perceived) poor-quality care (e.g. extended waiting times as a result of prioritisation in times of resource constraints) and unintentional harm and wilful neglect and ill-treatment was also stressed. More generally, there were calls for clarity about how this legislation would align with other existing legislation which could be used against organisations.
6.17 Although the consultation question asked whether the offence should apply to organisations in general, many respondents also commented on how responsibility might be attributed within organisations, and how the law might be enforced against particular staff and office bearers such as: board members; trustees; directors; owners; managers at all levels; supervisors; and senior staff and other frontline staff (individually and collectively). Even though they may not have neglected or ill-treated service users directly, respondents saw it as important that the law enabled such staff and office bearers to be held to account. There were a number of comments arguing that those at the top of organisations or in overseeing roles (e.g. management boards, directors, local authorities) rather than individual managers should be held accountable for systemic failings. There were several calls for examples to be provided on this issue.
6.18 The potential difficulties of identifying those individuals whose actions (or inactions) amounted to wilful neglect or ill-treatment and building a case against them was noted. The need for this to be addressed in the drafting of the legislation was also noted (by, for example, explicitly allowing for a corporate entity to be pursued), as was the need to stipulate that 'managers' were covered by the legislation.
6.19 A small number of respondents took a particularly wide view in discussing the concept of organisational responsibility and how this might be applied. Local authorities, commissioning bodies (e.g. Health and Social Care Partnerships), the government and ministers were all mentioned as potentially bearing some liability for incidences of neglect and ill-treatment, particularly where a lack of resources were implicated in the quality of care provided.
Circumstances in which the offence would apply to organisations
6.20 Respondents approached discussion of the types of circumstances which would justify prosecution of organisations in two ways: by indicating broad criteria; and by describing more detailed examples of situations and types of action (and inaction) which should result in organisations being prosecuted.
6.21 In terms of broad criteria, respondents offered various descriptions of the circumstances in which the offence should apply to organisations, including the following:
- Where an organisation's conduct amounts to a breach of its duty of care, or breach of other legislation
- Where the neglect and ill-treatment goes wider than any one individual
- Where the culture, practices and policies of an organisation can be seen to contribute to ill-treatment or neglect
- Where organisations provide 'care services of such low standards or with such poor funding that it is inevitable that the recipients of services will suffer from neglect'
- Where organisations have failed to take reasonable steps to prevent neglect or ill-treatment.
6.22 Although most took a broad view of the circumstances in which organisations should be held responsible, some took a narrower view. They suggested that organisations should be held responsible where their conduct fell 'far below expected standards', where they had failed to address previously identified poor practice or had tried to cover up poor practice; where the failings were repeated or regular; where it could be demonstrated that the organisation 'should have known that their (the organisation's) actions would result in neglect and harmful outcomes'; or where the organisation's role in the neglect could be could be properly evidenced.
6.23 One local authority respondent explained that organisations should only be held responsible if what they termed as the 'but for' test was met; i.e. 'but for the organisational incompetence, the resulting ill-treatment or wilful neglect would not have occurred'.
6.24 Respondents often also went on to describe more detailed examples of the type of conduct which would contribute to circumstances where organisations should be held responsible. Examples offered by respondents related to a wide range of issues included the care and treatment provided; organisational policies, practices and procedures; recruitment, training and staff development; leadership and supervision arrangements; staffing levels; monitoring, evaluation and feedback arrangements; and the provision of adequate resources.
6.25 One professional association for social workers offered a detailed list of indicators which may point to system-wide problems for which organisations should be held to account, as follows:
- A pattern of inadequate nutrition, fluids, heat, privacy, access to social activity, cleanliness, attention to personal hygiene is present
- Service users' calls for help or evidence of distress are routinely not responded to or are responded to in an aggressive or punitive manner
- Evidence of poor infection control practices and evidence of poor nursing practice
- A failure to provide access to appropriate health, social care or educational / employment services
- Misuse of service users' drugs or drug errors
- A tolerance of a culture of disrespect, name-calling, poking fun at service users
- Restraint, control or manual handling practices used inappropriately or unlawfully
- Inadequate attention given to medical needs, unreasonable delay in seeking medical attention, or withholding / obstructing medical treatment
- Breaches in basic care standards that have the potential to cause, or have caused, significant harm
- Evidence of an inadequate approach to safe care at all levels within the organisation
- Where any failure in the service including inadequate training, low staffing levels or poor care practices which have the potential to cause harm or have caused harm which are brought to the attention of adult support and protection services, Police Scotland and/or the Care Inspectorate are not addressed within a reasonable period
- Evidence that the organisation has breached its duty of care through lack of adequate and appropriate policies, procedures and systems to promote acceptable levels of care, and to evaluate and monitor the care being provided
- Evidence that complaints have been received and no appropriate action has been taken to prevent recurrence of the issues raised
- Governance arrangements within the organisation that do not address issues of neglect immediately and comprehensively, looking at a whole system response to such issues.
6.26 This list of indicators was specifically referred to by a number of respondents, and - while not exhaustive - reflected many of the points included in other responses.
6.27 Although respondents often gave detailed accounts of the circumstances which might contribute to organisational culpability, there were also calls for the legislation itself to make clear what was expected of organisations and what would constitute organisational wilful neglect or ill-treatment. There were several references to the Corporate Manslaughter framework for assessing an organisation's conduct.
Comments on the interface with the regulatory system
6.28 The interface with scrutiny and regulatory regimes was noted by a number of respondents in considering the question of extending criminal responsibility to organisations. In general, respondents argued for a system-wide approach to addressing poor quality care and improving standards across the health and social care sectors. Respondents were of the view that any new offence had to be considered within the wider legal, professional regulation, scrutiny and inspection framework through which organisations were already monitored and held to account. The following more specific points were also made:
- That failure to act on recommendations resulting from inspections should be seen as contributing to organisational culpability
- That there would need to be clear links with the inspection process and channels for information sharing in order to ensure a full picture could be established regarding incidents and concerns
- That it would be important to differentiate the circumstances which merited commissioning authority, regulatory body, or criminal justice intervention
- That criminal prosecution and regulatory intervention served two separate purposes and needed to be co-ordinated to complement each other; there was a particular concern that ongoing criminal proceedings could delay regulatory action which would address service improvement needs.
- That the standards used by the Care Inspectorate in carrying out its inspections could be used in assessing whether organisational culpability under the law, and that the National Care Standards could be used to inform any definition of 'wilful neglect'.
6.29 There was a specific suggestion for a new regulatory body to oversee organisations that might be subject to the new offence, and for a system of reporting and self-reporting to be established (a comparison was drawn with the work and procedures of the Information Commissioners Office).
6.30 It was also suggested that the Scottish Government should consider how its arrangements for communicating and implementing the new offence can best promote and support co-ordination with the relevant regulatory bodies.
Email: Dan Curran