I do not accept that at all. There is already a range of possible offences. If a patient, or a member of the family of that patient, raises a complaint about a particular doctor or nurse in relation to patient care, that complaint could be considered under a variety of headings. It would have to be considered and looked into. The complaint is unlikely in the first instance to home in on this particular offence. The investigation would, however, take place. Our view is that it would then be up to the Crown Prosecution Service to see, first, whether anything bad had happened, and if it had, whether it conformed to this offence or to any of the variety of other offences that are already on the statute book. I do not accept that the creation of this offence on its own would compound the problem that the noble Baroness has raised.
I am sure that she would agree that the vast majority of health and social care staff would never dream of deliberately harming or neglecting people in their care, nor would they try to cover it up. I suggest that that fact, if it became apparent in the earlier stages of an investigation, would be compelling in regard to the attitude taken by the prosecuting authorities. It is perhaps of some comfort to the noble Baroness to note that in relation to the Mental Capacity Act and to the Mental Health Act, there is no evidence that large numbers of cases have come forward. She will know that we have framed this offence to align with the way the offences in those Acts are phrased. Individuals are protected from unfounded allegations and, as I have said, the Crown Prosecution Service will not pursue a case unless it is in the public interest to do so. Even if, let us just imagine, a private prosecution were brought, the person accused has the right to refer the case to the Director of Public Prosecutions, who will close the case down if satisfied that the evidential and public interests tests are not met.
I suggest that there is little that either the noble Baroness or I can do to prevent unfounded or vexatious complaints from coming forward. That is a real problem. Often complaints rest on poor communication—she was right to raise that point—but I suggest that this is not relevant to the matter that we are now considering.
7.15 pm
The noble Baroness, Lady Finlay, expressed her strongly held view that the burdens here are being set at different levels for the individual care worker offence and the care provider offence. First, I do not accept that intent is difficult to prove. The courts are used to assessing intent and there are substantial numbers of case law examples on this. The burdens have been set at a similar level but worded differently to reflect the different positions of the care worker and their employer. Proving intent is not part of the care provider offence, as she will have noted. The care provider offence is intended to capture organisational failings, such as failings in supervision and management.
The noble Lord, Lord Winston, cited a distressing and concerning example of what appears to be a failure of proper care of a patient. I find it hard to disagree that some form of failing took place in that instance. As I have already indicated, it is not possible for me, even with the noble Lord’s full description, to venture an opinion as to whether an offence has taken
place in that instance and, if so, under what particular heading. Technically, the offence could have been committed, but once again the Crown Prosecution Service, if the case is referred to it, would apply a public interest test when deciding whether or not to pursue a prosecution.
I hope that those remarks are helpful and serve to explain why we have taken the approach that we have. I regret that I do see serious complications in the amendments of the noble Baroness. We cannot accept them. I hope that on reflection she will feel able to withdraw Amendment 42 and not press Amendment 43A.