My Lords, I am grateful to the noble Baroness, Lady Finlay, and both noble Lords for tabling these amendments, which give me the
opportunity to explain the Government’s thinking behind these important new offences of ill-treatment or wilful neglect.
The Government are clear that the ill-treatment or wilful neglect of users of health or adult social care services by an individual paid to provide those services is never acceptable. It is for this reason that we accepted the recommendation of Professor Berwick and the National Advisory Group on the Safety of Patients in England to introduce a new, clear and specific criminal sanction for those guilty of ill-treatment or wilful neglect. However, Professor Berwick’s original recommendation proposed that the offence should apply only in the most egregious cases, where the ill-treatment or wilful neglect caused “serious harm or death”—in effect, a harm threshold. Amendment 30 would create a similar threshold by requiring both a “serious and substantial” departure from a care worker’s duty towards the victim and that the conduct must cause serious harm or avoidable death.
When we were developing these new offences, we gave careful consideration to these very issues. For us, it raised a number of difficulties. For example, if you set a harm threshold, you are effectively saying that any ill-treatment or wilful neglect that fails to cause sufficient harm to meet that threshold can be tolerated. Similarly, a situation could arise where two people are subjected to the same behaviours by the same care worker with the same intent, but one is much more seriously harmed than the other. I cannot see how it can be fair that the lesser harmed victim cannot have the protection of the new offence simply because they have been fortunate enough not to suffer really serious harm.
We exposed these very concerns in our consultation on the formulation of the offence earlier this year. The overwhelming majority of those who responded supported our proposal that the offence should focus on the conduct of the care worker, not on the outcomes for the victim. The way in which the noble Baroness’s amendment is framed puts the focus of the offence back on to outcomes. Someone could be subjected to wholly unacceptable ill-treatment or wilful neglect but the perpetrator could have a defence if they could show that their conduct did not meet the “serious and substantial departure” threshold of the noble Baroness’s amendment, that the harm suffered was not sufficiently serious or that the victim’s death was unavoidable.
I also have some concerns about that phrase “serious and substantial”. Guaranteeing an objective and consistent interpretation seems to be fraught with difficulty. I fear that care workers could find themselves with less certainty about when the offence might bite, rather than more.
This brings me to the other point I want to make in respect of Amendment 30. It relates to the imaginary case study that the noble Baroness put before us. We recognise that it is important that there should be clarity around the types of behaviours which will be captured under this offence, and I understand the concern expressed by some that, without this, there is a risk that care workers could be less willing to be open and honest when things go wrong.
There are a number of issues to consider here. First, and most importantly, it must be remembered that the underlying premise on which the offence is predicated is that any neglect must be wilful; that is, deliberate, or else completely reckless as to whether the conduct will cause harm. In the case of ill-treatment, the courts have interpreted this as being ill-treatment that was intentional or reckless. I can assure the Committee that this is in practice a high bar to get over. Demonstrating that that is the case to the standard of proof required in criminal law will not be easy. Nor do we want it to be. We know that the vast majority of care workers would never dream of setting out to ill-treat or neglect those in their care. In the example given by the noble Baroness, a balancing of priorities is taking place. The offence would not cover that situation, but accidents and genuine mistakes do happen, and we have formulated the offence to make it clear that such situations will not be captured by it, no matter how serious the outcome may be for the patient or service user. Care workers need have no fear that being open and honest when such an accident or mistake occurs will place them at risk of prosecution under the offence.
Other safeguards will be in place, besides the fundamental protection given by the formulation of the offence itself. As with a whole range of criminal offences, the Code for Crown Prosecutors means that a public interest test will have to be met before a prosecution is brought. Moreover, even in the unusual event of an alleged victim or their family deciding to pursue a private prosecution, the care worker has protection. They can exercise their right to refer the case to the Director of Public Prosecutions for scrutiny, who will have discretion to take over the case and close it down.
With regard to Amendments 31 and 32, I am aware that in his remarks at Second Reading the noble Lord, Lord Kennedy, raised the issue of whether the ill-treatment or wilful neglect care worker offence should include volunteers. We considered that very carefully during the development of these offences. Indeed, we again addressed the issue directly in the consultation in March. We know, of course, that it is not only formally employed care workers who can ill-treat or wilfully neglect those in their care. Sadly, it can happen in many situations, as the noble Lord rightly pointed out, but his amendments would bring a vast number of people within scope of the offence because “volunteer” has a wide interpretation. Family carers; people who provide assistance to friends or neighbours by, for example, taking them shopping or to medical appointments; people who help out in nursing homes at meal times; volunteer patient transport drivers—all such people, and more, would be caught by the amendments.
Our view is that there is a significant difference between those employed to provide these services and those who do so voluntarily. Paid arrangements give rise to a formal obligation to provide services to a reasonable standard. That represents a significant and important difference from informal arrangements, where there is no element of prescribed obligation. I am sure that it is not the intention to make subject to the criminal law all those people who, from the goodness of their hearts, are willing to give of their time and effort to help others.
I would add that we do already have in place arrangements to provide safeguards in such situations. For example, the Care Act 2014 includes provisions explicitly relating to the powers and duties of local authorities to assess and meet the needs of informal carers, such as friends and family carers. Moreover, where an individual is volunteering in, for example, a day centre or nursing home, there are nowadays statutory duties on the operators of those facilities to carry out appropriate checks on the suitability of the individual to do that work and ensure that they receive training in health and safety, safeguarding and other procedures necessary to provide protection for the users of that service. It is no longer the case that someone could just walk in off the street, offer their services and come immediately into contact with vulnerable patients or service users.
It is the Government’s view that these arrangements provide adequate safeguards in these specific circumstances in a far more proportionate way than applying this offence would do. The latter would also risk putting people off volunteering for fear of prosecution, however unlikely that prosecution might be in practice.
I turn finally to Amendment 33. Although I can readily understand the motive behind it, I have to say that I cannot agree that it is necessary, even on the “for the avoidance of doubt” basis which the amendment adopts. We have been clear from the outset that matters involving the exercise of informed clinical judgment by any healthcare professional, not just registered medical practitioners, should be outside the scope of these ill-treatment or wilful neglect offences. We addressed this explicitly during the consultation exercise and the offences have been formulated to ensure that this is the case. I reiterate my earlier remarks about the key element being that of wilfulness. There has to be intent to ill treat or neglect, or recklessness as to whether the perpetrator’s actions or omissions will cause ill treatment or neglect, for the offence to bite. For a surgeon making decisions about the relative priorities of two patients or the best course of treatment for a particular condition, the implications and effects of their decisions will be uppermost in their minds. They will be all too aware that their decision may cause further delay or discomfort in the short term, even though the longer-term outcome may be better, but in taking these sorts of decisions healthcare professionals are not deciding deliberately to ill treat or neglect. They are taking decisions in what they believe to be the best interests of the patient, taking into account other priorities. I cannot see how a doctor who can demonstrate that they have followed appropriate clinical practice and professional standards in exercising their clinical judgment would fall prey to this offence.
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