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

7 Penalties

7.1 This chapter presents respondents' views on the proposed penalties for the new offence. The consultation document outlined the Scottish Government's proposal that the penalties should reflect those already in place for existing offences under the Mental Health (S) Act 2003 and the Adults with Incapacity (S) Act 2000, but also invited views on the need for additional penalties for organisations only. Two questions were posed, as follows:

Question 8: Do you agree that the penalties for this offence should be the same as those for the offences in the Mental Health Act 2003 and Adults with Incapacity Act 2000?

Question 9: Should the courts have any additional penalty options in respect of organisations?

7.2 Again, in relation to these two questions, there was a degree of cross-over in the points covered in response to each question, and so both questions have been analysed together.

Views on the proposal for penalties to be the same as those for existing offences (Q8)

7.3 The consultation document provided details of the current penalties as follows:

• On summary conviction: imprisonment for a maximum term of 12 months, or to a fine not exceeding the statutory maximum (currently £10,000), or both
• On conviction on indictment: imprisonment for a maximum term of 2 years, or a fine (of an unlimited amount), or both

7.4 Altogether, 84 respondents replied to Question 8. Table 7.1 below shows that 85% of respondents agreed that the penalties for the new offence should be the same as those for equivalent offences already in place under the Mental Health (S) Act 2003 and the Adults with Incapacity (S) Act 2000. Twelve percent (12%) disagreed, and 4% ticked neither 'yes' nor 'no' and made comments which expressed unclear or mixed views.

7.5 All the NHS organisations, scrutiny and regulatory bodies, and third sector representative agencies were in favour of the proposal. Those agreeing with this proposal also included two-thirds of those who expressed reservations about the legislation as a whole.

Table 7.1: Question 8 - Do you agree that the penalties for this offence should be the same as those for the offences in the Mental Health (S) Act 2003 and Adults with Incapacity (S) Act 2000?

Respondent type	Yes		No		Unclear		Total
	n	%	n	%	n	%	n	%
NHS	19	100%	-	0%	-	0%	19	100%
Local government	13	81%	2	13%	1	6%	16	100%
Third sector service provider / service user organisations	10	83%	1	8%	1	8%	12	100%
Professional associations, support agencies and trade unions	9	82%	2	18%	-	0%	11	100%
Scrutiny / regulatory bodies	5	100%	-	0%	-	0%	5	100%
Adult / child protection groups or partnership bodies	7	88%	1	13%	-	0%	8	100%
Third sector representative / co-ordinating agencies	5	100%	-	0%	-	0%	5	100%
Law organisations	-	0%	2	100%	-	0%	2	100%
Individual respondents	3	50%	2	33%	1	17%	6	100%
Total	71	85%	10	12%	3	4%	84	100%

Percentages do not all total 100 due to rounding.

7.6 Altogether, 73 respondents made comments at Question 8.

Views of those agreeing with the proposal

7.7 It was clear from the comments that the principle of consistency was of key importance to respondents who agreed with the proposal. Respondents emphasised the importance of consistency across equivalent offences, and described the proposal as 'sensible' or 'logical'. Respondents also suggested that such consistency would ensure equality under the law across different client groups, sectors and settings, and would be helpful in providing clarity or preventing confusion, and in raising awareness and understanding about - and ultimately compliance with -any new offence.

7.8 Alongside their support for consistent penalties across equivalent offences, many respondents offered general comments on the appropriateness of the penalties currently in place for existing offences. There were also more specific comments on current limits for fines and imprisonment, as noted below.

General comments on current penalties

7.9 Respondents' comments often suggested support for the principle of consistency, rather than support for the currently available penalties per se. Although some respondents described the current penalties as 'adequate' or 'appropriate', more commonly people called for the penalties to be reviewed, or they argued explicitly for tougher penalties for those convicted of wilful neglect. Although not always stated, there was an implication that respondents wished to see this for offences under the Mental Health (S) Act 2003 and the Adults with Incapacity (S) Act 2000, as well as for the proposed new offence.

7.10 Respondents also wished to see greater discretion in penalty setting, to allow penalties to reflect the circumstances and seriousness of the harm caused in any given case. This point was also made by some respondents in their comments at Question 5 (discussed above).

Comments on current fines

7.11 Most commonly, respondents wished to see an increase in the level of fines permitted by the law, with some favouring unlimited fines. However, some respondents also wished to see fines that reflected the income / means of individuals and - more often - the profits of organisations. One respondent specifically argued that applying the same upper limit to organisations and individuals was iniquitous, given the potential for this to have a far greater impact on an individual. In the case of organisations, it was also suggested that a fine alone may not represent a sufficient penalty; and that fines should be levied on appropriate managers and office bearers if they were found to be at fault.

7.12 Most of the comments about fines focused on their application to organisations with the dominant view being that the law should allow for higher fines. However, there were also comments from those who offered caveats or voiced concerns in relation to this issue. Concerns raised included the following:

• Increasing the limit on fines might encourage increased complaints against organisations.
• Increased fines would impact on budgets for services, and the level of fines should be balanced with the need for organisations to continue providing quality care. There was a view that a fine should only be levied if it would not impact on services.

7.13 Other points made included the following:

• That fines on organisations should be 'proportionate' and should not have the effect of putting organisations out of business if the offence would not have merited closure through the regulatory system.
• That there was nothing to be gained from higher financial penalties, in terms of addressing shortcomings in services. There was, however, a suggestion from one respondent that financial penalties could be linked to a service improvement plan which could provide a degree of incentive for addressing failings.

Comments on imprisonment

7.14 There were fewer comments on the option of imprisonment. However, the following comments - each made by one or two respondents only - demonstrate the range of views:

• It would be disproportionate for individuals to be at risk of a custodial sentence while organisations were only at risk of a fine.
• Appropriate managers or office bearers should be subject to custodial sentences if an organisation was found to be at fault.
• The maximum custodial sentence should be extended to five years, in line with the situation in England.

Views of those disagreeing with the proposal

7.15 Those who did not agree with the proposal made points which often overlapped with the views of those agreeing with the proposal. Comments included the following (all offered by one or two respondents only): that the penalties for existing equivalent offences were too lenient; that penalties should be restricted to fines only, with a custodial sentence being seen as appropriate for 'a more serious criminal offence such as assault'; that other disposals such as the barring of convicted offenders from working or offering services in the health and social care fields and compensations for victims should be available. The nature of these comments suggests that, in most cases, respondents disagreed with what they perceived to be the current penalties rather than the principle of having the same penalties for all the equivalent offences.

7.16 This group also included respondents who disagreed with the proposal within the context of disagreeing with the need for a new offence to be introduced.

Views on the provision of additional penalties for organisations (Q9)

7.17 Question 9 in the consultation document invited views on the provision of additional penalties for organisations convicted of wilful neglect or ill-treatment. In total, 72 respondents replied to this question.

7.18 Here, views were more mixed than was the case for other proposals in the consultation. Table 7.2 below shows that two-thirds of respondents (67%) agreed that the courts should have additional penalty options in respect of organisations, a quarter (24%) disagreed and 10% expressed unclear views.

Table 7.2: Question 9 - Should the courts have any additional penalty options in respect of organisations?

Respondent type	Yes		No		Unclear		Total
	n	%	n	%	n	%	n	%
NHS	8	47%	5	29%	4	24%	17	100%
Local government	13	81%	2	13%	1	6%	16	100%
Third sector service provider / service user organisations	8	89%	1	11%	-	0%	9	100%
Professional associations, support agencies and trade unions	4	67%	2	33%	-	0%	6	100%
Scrutiny / regulatory bodies	4	100%	-	0%	-	0%	4	100%
Adult / child protection groups or partnership bodies	7	88%	-	0%	1	13%	8	100%
Third sector representative / co-ordinating agencies	1	25%	3	75%	-	0%	4	100%
Law organisations	-	0%	1	100%	-	0%	1	100%
Individual respondents	3	43%	3	43%	1	14%	7	100%
Total	48	67%	17	24%	7	10%	72	100%

Percentages do not all total 100 due to rounding.

7.19 While noting the low numbers involved, those least likely to agree with the proposal included NHS organisations; professional bodies, support agencies and trade unions; third sector representative and co-coordinating bodies; and individual respondents.

7.20 Those who expressed reservations about the legislation as a whole tended to disagree with this proposal or did not comment; just two such respondents indicated agreement with the proposal.

7.21 Altogether, 67 respondents made comments at Question 9.

Views of those agreeing with additional penalties for organisations

7.22 Those respondents who wished to see the courts have additional penalties for organisations did so because they regarded the existing options as insufficient (e.g. in responding to the seriousness of the offence) or inappropriate as a means of bringing about positive change in service standards and organisational culture. Having a range of options available was seen as important by some in giving flexibility to respond appropriately to the circumstances of an offence and the nature of the organisation involved.

Suggestions for additional penalties

7.23 Respondents suggested a range of additional penalties which they thought should be available to be imposed on organisations. A small number of respondents suggested additional financial penalties such as seizure of assets and compensation payable to victims (with one suggestion that this should be payable upfront from public funds with subsequent recovery from the offending organisation). More often, however, respondents wished to see penalties linked to service improvement. There were specific calls for the introduction of publicity orders (making concerns about the organisation public) and remedial orders (stipulating action to be taken to address concerns), measures which were noted as being currently available to the courts in England. There was also a suggestion that the courts might be given the power to order a public enquiry.

7.24 Besides these specific disposals, however, respondents called for a range of penalties related to: (i) restrictions (temporary or permanent) on activities; and (ii) additional scrutiny and inspection. By and large, the penalties discussed in this context were already available through existing routes in the wider legislative and regulatory context. Although some explicitly referred to the courts imposing the sanctions suggested, or envisaged a system involving court referrals to other agencies, others were less clear in their comments about the court's role in determining these additional penalties.

7.25 Those respondents wishing to see restrictions on activities made the following specific suggestions in respect of organisations:

• Permanent or temporary closure of facilities or services (including closure pending further investigation), depending on the seriousness of the case
• Restrictions on activities for a set period of time
• Barring of organisations from taking on new contracts for a set period of time
• Barring of organisations from operating in the health and social care fields
• Removal from the charities register.

7.26 The following additional suggestions were made in relation to representatives of organisations (e.g. owners or managers who might be held responsible for offences):

• Barring of individuals from managing or owning an organisation or working in the health and social care field
• De-registration or suspension from professional bodies
• Barring individuals from becoming trustees or directors
• Dismissal or replacement of chief executive, board members, etc.

7.27 There was also a view that individual owners or managers should be subject to the same sanctions as frontline staff found to be directly responsible for acts of wilful neglect or ill-treatment.

7.28 Respondents frequently called for conviction for wilful neglect and ill-treatment to be linked to scrutiny and regulatory activity. This reflected a commonly held view that penalties should be used to promote change within a wider context of service improvement. Some respondents spoke in general terms of 'further scrutiny', 'additional monitoring', and an increased role for existing regulatory bodies in such cases, with the degree of regulatory intervention reflecting the seriousness of the case. Others made more specific suggestions which could be regarded as court sanctioned monitoring and improvement plans with the option of further penalties for non-compliance. Two further suggestions each made by one respondent were a register of failing organisations and the introduction of a system of 'special measures' as used in England.

7.29 Although the question asked specifically about court penalties, the comments from respondents did not necessarily distinguish between penalties which would be imposed directly by the court and those which would be sanctioned via other routes, possibly following a referral or directive from the court. Respondents' concerns were functional rather than technical, and focused on achieving the desired outcomes in terms of appropriate treatment of convicted organisations and individual staff / office bearers and improved services for clients. The comments suggested that what was important to respondents were judicial and regulatory / scrutiny systems which operated in a joined up and complementary way.

Penalties available through alternative legislation

7.30 Many respondents also referred to existing legislation and related penalties which could be used against organisations and which also gave the option of additional penalties. Examples here included the Corporate Manslaughter / Homicide Act 2007; the Health and Safety at Work Act 1974; Companies Act 2006; and legislation covering charities and trustees.

Views of those disagreeing with additional penalties for organisations

7.31 Those who did not agree that courts should have additional penalty options available for organisations came from all sectors. They generally argued that existing legislation and associated penalties and existing regulatory and professional frameworks meant that there was no need for the new offence to be introduced.

7.32 As discussed above (see again Chapter 3), they also drew attention to potential negative consequences of imposing additional penalties on organisations. These included the impact on frontline services, increased litigation, increasingly risk-averse organisations and difficulties in recruiting board members and office bearers.

Other comments relating to prosecution and penalties

7.33 Alongside the views on the specific questions on penalties, respondents across all sectors - including those who agreed and disagreed with the introduction of the new offence - offered a range of other relevant comments which addressed three main themes: the overall approach to responding to instances of neglect and ill-treatment in the health and social care sector; the interface between the criminal justice and social care systems; the prosecution process. Comments for each are summarised below.

Overall approach to responding to instances of neglect and ill-treatment

7.34 A recurrent theme in the comments was the belief that available penalties should be seen within a wider context which included a strong, well-resourced regulatory system, with an emphasis on promoting service improvement.

7.35 In this context, some questioned how the proposed penalties (or additional penalties for organisations) would result in positive change, or they advocated an approach with a greater emphasis on supporting organisations in learning from incidents and achieving improvement in quality of service. Respondents noted the need to balance penalties with the need to provide quality care, and that financial penalties reduced the funds available for delivering frontline services. They also suggested that tough penalties might result in organisations becoming 'risk averse' in the services they offered or the client groups they worked with.

7.36 An alternative view, however, was that tough penalties for organisations in particular, and publicity related to offences and sanctions, would act to drive up standards by making it clear that there were implications for organisations which failed to provide adequate care and treatment. There was also a call for sufficient resources to be put in to enforcement and prosecution.

Interface between criminal justice and regulatory systems

7.37 There were a range of comments highlighting the importance of a coherent approach across the criminal justice and regulatory systems. Respondents highlighted the existing regulatory and professional frameworks, and saw the relevant bodies as having a key role in investigating and sanctioning individuals and organisations subject to the proposed new law. While one respondent noted a specific concern that regulatory action may be delayed by an ongoing criminal justice investigation, another suggested that sanctions issued (or likely to be issued) by regulatory or professional bodies should be taken into account in determining court disposals.

7.38 Respondents also noted the need to link effectively with the PVG / disclosure system.

Comments on specific aspects of the wider criminal justice context

7.39 The questions on penalties also gave rise to a number of comments about the prosecution process more generally as discussed below.

• The appropriate judicial forum: One respondent argued that such offences should not be heard by a justice of the peace, while another respondent went further, arguing that the seriousness of the offence merited prosecution on indictment only.
• Flexibility and discretion: Respondents identified a need for discretion and flexibility at various stages in the prosecution and determination of penalties for acts of wilful neglect and ill-treatment in order to take account of the full circumstances of the case. This included discretion in the decision to prosecute, as well as flexibility in determining penalties. Flexibility was also sought in relation to using different legislative and regulatory options.