Nick Smith MP

Working for you in Blaenau Gwent

Success in campaign for care home justice

Nick Smith MP has celebrated the Government holding care home owners to account by creating a criminal offence for wilful neglect under their care.

The Blaenau Gwent MP has been campaigning with Age UK since April 2013 for the owners and directors of care homes to be held responsible for abuse and neglect in their homes.

The Criminal Justice and Courts Bill, set to appear in the House of Commons, now carries two new clauses that not only define an offence of wilful neglect – complete with a maximum five year jail sentence – but also extend it to directors and managers of care homes.

Care providers can now also commit an offence of wilful neglect, if ill-treatment or wilful neglect of an individual has followed a gross breach of a duty of care.

Mr Smith’s campaigning started after the collapse of Operation Jasmine, a seven-year investigation into care home abuse in South Wales.

He said: “Speaking to the families of the victims of neglect in those homes, there was a sense of guilt that nothing could be done and justice wouldn’t be served.

“The law meant we had a situation where residents suffered bed sores that were infected to the bone, but the director of those homes had to be tried on a health and safety technicality.

“This is why I campaigned for a real offence to be made that wouldn’t allow the people at the top to wash their hands of such terrible instances of neglect.

“Now we are not only presented with an offence of wilful neglect, but one that applies to every step of the care home process.

“I am pleased the Government has seen sense and not just relied on strengthening the Care Quality Commission’s powers but enshrined this responsibility in law.

“Families across the country deserve to have peace of mind that if their loved ones use the care home system, they will be protected from harm.”

The amendments to the Criminal Justice and Courts Bill are as follows

Secretary Chris Grayling
NC45
 To move the following Clause—
“Ill-treatment or wilful neglect: care worker offence
(17) It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual.
 
(18) An individual guilty of an offence under this section is liable—
(a) on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine (or both);
(b) on summary conviction, to imprisonment for a term not exceeding 12 months or a fine (or both).
 
(19) “Care worker” means an individual who, as paid work, provides—
(a) health care for an adult or child, other than excluded health care, or 10011 Consideration of Bill: 10 June 2014
Criminal Justice and Courts Bill, continued
(b) social care for an adult, including an individual who, as paid work, supervises or manages individuals
providing such care or is a director or similar officer of an organisation which provides such care.
 
(20) An individual does something as “paid work” if he or she receives or is entitled to payment for doing it other than—
(a) payment in respect of the individual’s reasonable expenses,
(b) payment to which the individual is entitled as a foster parent,
(c) a benefit under social security legislation, or
(d) a payment made under arrangements under section 2 of the Employment and Training Act 1973 (arrangements to assist people to select, train for, obtain and retain employment).
 
(21) “Health care” includes—
(a) all forms of health care provided for individuals, including health care relating to physical health or mental health and health care provided for or in connection with the protection or improvement of public health, and
(b) procedures that are similar to forms of medical or surgical care but are not provided in connection with a medical condition, and “excluded health care” has the meaning given in Schedule (Ill-treatment or wilful neglect: excluded health care).
 
(22) “Social care” includes all forms of personal care and other practical assistance provided for individuals who are in need of such care or assistance by reason of age, illness, disability, pregnancy, childbirth, dependence on alcohol or drugs or any other similar circumstances.
 
(23) References in this section to a person providing health care or social care do not include a person whose provision of such care is merely incidental to the carrying out of other activities by the person.
 
(24) In this section—
“adult” means an individual aged 18 or over;
“child” means an individual aged under 18;
“foster parent” means—
(a) a local authority foster parent within the meaning of the Children Act 1989,
(b) a person with whom a child has been placed by a voluntary organisation under section 59(1)(a) of that Act, or
(c) a private foster parent within the meaning of section 53 of the Safeguarding Vulnerable Groups Act 2006.
 
(25) In relation to an offence committed before section 154(1) of the Criminal Justice Act 2003 comes into force, the reference in subsection (2)(b) to 12 months is to be read as a reference to 6 months.
 
(26) In relation to an offence committed before section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 comes into force, the reference in subsection (2)(b) to a fine is to be read as a reference to a fine not
exceeding the statutory maximum.”
 
Member’s explanatory statement
This establishes a criminal offence of ill-treatment or wilful neglect of an individual by a care worker who is paid to provide the individual with health care, other than excluded health care (see new Schedule 2), or adult social care. It sets out the penalties on conviction for the new offence.
 
Secretary Chris Grayling
NC46
 To move the following Clause—
“Ill-treatment or wilful neglect: care provider offence
(27) A care provider commits an offence if—
(a) an individual who has the care of another individual by virtue of being part of the care provider’s arrangements ill-treats or wilfully neglects that individual,
 
(b) the care provider’s activities are managed or organised in a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who is ill-treated or neglected, and
(c) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.
 
(28) “Care provider” means—
(a) a body corporate or unincorporated association which provides or arranges for the provision of—
(i) health care for an adult or child, other than excluded health care,
or
(ii) social care for an adult, or
(b) an individual who provides such care and employs, or has otherwise made arrangements with, other persons to assist him or her in providing  such care, subject to section (Ill-treatment or wilful neglect: excluded care providers).
 
(29) An individual is “part of a care provider’s arrangements” where the individual—
(a) is not the care provider, but
(b) provides health care or social care as part of health care or social care provided or arranged for by the care provider, including where the individual is not the care provider but supervises or manages individuals providing health care or social care as described in paragraph (b) or is a director or similar officer of an organisation which provides health care or social care as described there.
 
(30) A “relevant duty of care” means—
(a) a duty owed under the law of negligence, or
(b) a duty that would be owed under the law of negligence but for a provision contained in an Act, or an instrument made under an Act, under which liability is imposed in place of liability under that law, but only to the extent that the duty is owed in connection with providing, or arranging for the provision of, health care or social care.
 
(31) For the purposes of this section, there is to be disregarded any rule of the common law that has the effect of—
(a) preventing a duty of care from being owed by one person to another by reason of the fact that they are jointly engaged in unlawful conduct, or (b) preventing a duty of care being owed to a person by reason of that
person’s acceptance of a risk of harm.
 
(32) A breach of a duty of care by a care provider is a “gross” breach if the conduct alleged to amount to the breach falls far below what can reasonably be expected of the care provider in the circumstances.
 
(33) In this section—
(a) references to a person providing health care or social care do not include a person whose provision of such care is merely incidental to the carrying out of other activities by the person, and 10013 Consideration of Bill: 10 June 2014
Criminal Justice and Courts Bill, continued
(b) references to a person arranging for the provision of such care do not include a person who makes arrangements under which the provision of such care is merely incidental to the carrying out of other activities.
 
(34) References in this section to providing or arranging for the provision of health care or social care do not include making payments under—
(a) regulations under section 57 of the Health and Social Care Act 2001 (direct payments for community services and carers);
(b) section 12A of the National Health Act 2006 (direct payments for health care);
(c) section 31 or 32 of the Care Act 2014 (direct payments for care and support);
(d) regulations under section 50 of the Social Services and Well-being (Wales) Act 2014 (anaw 4) (direct payments to meet an adult’s needs).
 
(35) In this section—
“Act” includes an Act or Measure of the National Assembly for Wales; “adult”, “child”, “excluded health care”, “health care” and “social care” have the same meaning as in section (Ill-treatment or wilful neglect: care worker offence).”
 
Member’s explanatory statement
This establishes a criminal offence committed by care providers, i.e. bodies and certain individuals that provide or arrange for the provision of health care, other than excluded health care (see new Schedule 2), or adult social care. It applies where ill-treatment or wilful neglect of an individual has followed a gross breach of a duty of care by the care provider.

 

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