With our growing population and an increasing demand for care services, adult social care is a vital component providing support and protection to both children and adults in need or at risk. In order for this protection to be upheld, measures have to be put into place to provide the maximum support for the vulnerable and help social care workers promote the highest quality of care in this sector. One of these provisions, introduced earlier this year, was the Criminal Justice and Courts Act 2015 (CJCA).
The CJCA 2015 received Royal Assent on 12th February 2015 and this Act aims to provide further reform to the Criminal Justice System in response to the ongoing need to appropriately punish serious and repeat offenders whilst maintaining public protection. The CJCA hopes to reduce re-offending rates as these have remained at a constant high, particularly for young offenders leaving custody. Additionally, there is a huge burden on taxpayers as the cost of court cases is not held accountable to the offenders. Thus, this law reform should effectively provide value for money for taxpayers by reducing the burden of funding the courts.
How does this Act affect the Health and Social Care sector?
From 13th April 2015, Sections 20-25 and Schedule 4 of the Act apply to individual care workers and care providers. These sections are a response to the recent scandals in care homes and hospitals (especially the abuse of vulnerable adults and the elderly) and establish new criminal offences of ill-treatment or wilful neglect. Due to the previous ‘gap’ surrounding the abuse or neglect of service users in care environments, this reform provides a statutory legislative framework to cover protection for all these individuals. Previously, the offence of ill-treatment or wilful neglect was only applicable under the Mental Capacity Act 2005, where a person lacks capacity, or is subject to the Mental Health Act 1983. In effect, this Act widens the scope of protection to all individuals receiving such care services, by ensuring that the ‘gap’ is effectively closed and quality of care is improved.
The CJCA is a response to the current necessities within the health and social care spheres by safeguarding individuals who receive these types of services, to be equally protected from ill-treatment and neglect. Not only will it benefit these individuals, but it will also hold accountable those responsible for providing the worst failures or the lack of service in care. In essence, this will strive to improve safety and quality of services for all.
It gives care providers an additional push to ensure they have the necessary measures in place to avoid any ill-treatment or wilful neglect from their employees. If care providers fail to implement this act, the penalties are convictions on indictment by 5 years imprisonment and/or fine and on summary conviction by 12 months and/or fine. The legal foundations of these offences are based on the actions of the perpetrator (what the individual actually did or failed to do) to the service user in lieu of focusing on the physical harm caused.
Nonetheless, these offences do provide various perimeters for the offence caused, where convictions can be held against individuals or the organisation itself. With regards to organisations, prosecutors should centre their judgements as to the way the service is managed and organised, and whether this resulted in a gross breach of duty of care to the service user. Contrarily, prosecutors would not have the need to provide evidence that individuals committed a gross breach of duty of care, resulting in a quick and simple prosecution process.
However, as the focus of the act is primarily on the conduct of the individual rather than the outcome, to what extent should care providers be held responsible for the failings of their employees?
Anna Pavan – QCS Policy Officer
