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Sections 20 and 21 of the Criminal Justice and Courts Act 2015 creates two new criminal offences. These offences criminalise those they deem responsible for the ill-treatment or neglect of people who were meant to be receiving health or social care. The range of persons to whom these offences apply are individuals and organisations which are paid to provide care and these include doctors, clinicians, care workers and their respective employers are within their range. Neither of these offences seek to intrude on family life or discourage volunteers and so parents and others who provide unpaid or informal do not come within the range of this Act.
The first of the Act can only be committed by an individual. If he/she is paid to provide care to another individual but what is done or not done amounts to ill-treatment or wilful neglect then the offence is committed. This will also include for example, doctors, dentists, nurses.
“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.”
The second of the Act can only be committed by a “care provider”, i.e. a company or unincorporated association, NHS trusts and GP’s practices for example are included. Its focus is on how the organisation organised its activities; did they amount to a gross breach of a duty of care owed by the organisation to the victim of the care workers neglect or ill-treatment? Parliament’s intention is that this offense should resolutely focus on the alleged failings of the organisation as a whole instead of those of any single individual. This intention is reinforced by a number of measures intended to prevent secondary liability attaching to any individual.
Its enactment requires every affected organisation to ensure that there is comprehensive management and supervision of employees who have contact with vulnerable people. In addition to these controls, to enhance training and guidance and to embed an ethical culture which should ensure that poor behaviour is reported ad adequately redressed.
If neglect or ill-treatment has occurred and a police investigation is launched then the organisation associated with the alleged perpetrator will need to demonstrate primarily via its record-keeping that it had taken reasonable or adequate steps to prevent that conduct.
“A care provider commits an offence if –
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,
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
In the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.