The Mental Capacity Act 2005 makes the ill treatment or neglect of an individual lacking capacity a criminal offence. However, the Act does not apply where an individual has capacity and prosecution of the perpetrator can be problematic. The Department of Health is currently consulting on a proposal to address this anomaly by creating a new criminal offence of ill treatment and wilful neglect that will apply irrespective of the mental capacity of the victim.
This offence will apply not only to individuals but also to organisations and will bring with it the potential for senior managers and directors to be prosecuted for the acts or omissions of staff within their service. In the most serious of cases, this may mean up to 5 years’ imprisonment and an unlimited fine.
Read on to find out more about the proposed new law and how to avoid prosecution for ill treatment and wilful neglect.
New Safeguarding Criminal Offence – Are You Prepared?
The terms ‘ill treatment’ and ‘wilful neglect’ are not yet clearly defined within this proposed law but are likely to include any of the six types of abuse outlined in the Department of Health publication ‘No Secrets: guidance on protecting vulnerable adults in care’ (2000):
- Physical abuse
- Psychological abuse
- Sexual abuse
- Financial abuse
- Discriminatory abuse
In future, any incidence of these types of abuse within your service could potentially trigger a police investigation with far wider implications than under current legislation. Imagine the consequences of your whole senior team being implicated due to the actions of one member of staff, you will begin to appreciate the impact that failure to provide safe and effective care could have on your service.
4 Steps to Help Your Service Avoid Allegations of Ill-treatment and Wilful Neglect
- Ensure your policies and procedures are embedded in practice and not simply gathering dust on a shelf. This will involve your senior staff carrying out monitoring and spot checks on care delivery to ensure that the good practices described in your policies are translated into practice. Demonstrating that senior staff observe and audit practice will show your commitment to ensuring the highest standards of care.
- Make sure that your training programme is fit for purpose by carrying out an annual training needs analysis for your service. As needs change, so will the training that you need to provide. Updating your training programme annually to reflect changes in your clients’ needs and responding to new legislation shows that you are doing everything possible to ensure that you are providing your staff with the training and support that they need to deliver appropriate care.
- Take steps to assure yourself that everyone within your service understands their safeguarding responsibilities and knows how to whistleblow. Understanding that prevention is the most effective form of safeguarding will encourage staff to bring issues to your attention at the earliest opportunity and prevent serious abuse arising.
- Make sure that supervision happens regularly and is recorded and acted upon. Showing that you provide one-to-one support to every member of staff and have action plans in place linked to these discussions demonstrates your commitment to good practice.
The new law is unlikely to seek to prosecute cases where a genuine error or accident has occurred in a service where all reasonable steps have been taken to support good practice. However, taking the steps outlined above will form the foundation of any defence should the worst happen.
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