Over the past two years, we have seen an increasing number of GDPR claims being made alleging that an individual’s data protection rights have been breached.
Unfortunately, what the programme did not do is highlight the good care and practice that is delivered by social care providers and their care workers everyday across the country. For the majority of care providers, who are providing excellent care, programmes such as this can be very demoralising at a time of reduced funding and often over prescriptive regulation. Nevertheless, the programme does raise important issues that highlight the challenging times in which the underfunded and the understaffed home care sector operates.
The programme came close on the heels of the widely reported case and recent sentencing of a care worker at Birmingham Magistrates’ Court, who was caught slamming the head of a 77-year old woman with dementia into a chair on secret CCTV – again installed by her family. In both cases, the wrongdoers were successfully brought to justice under The Criminal Justice and Courts Act 2015 (s20 Ill-treatment or wilful neglect: care worker offence) that came into force on 13 April 2015 and states, "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". This legislation can be used in addition to the Mental Capacity Act 2005, which states that it is a criminal offence for care workers who ill-treat or wilfully neglect service users, but only in relation to service users who lack capacity and only care workers (rather than care providers – as with CJCA 2015) can be liable*.
'File on Four' went on to report that an extraordinary number of safeguarding referrals, in relation to allegations of abuse (23,000) by home care workers, were made in the last three years. The programme did not give details about the outcomes of the referrals but it is hoped that, whilst this an alarming trend, it should also be welcomed that bad practice is under the spotlight and referrals are being made. It would be very interesting to know how many safeguarding referrals were made directly by care providers or how many allegations proved to be upheld. It is our experience that referrals are being made as a matter of routine by many of our clients. Many are keen for any concerns to be investigated, even where they appear trivial or supported by little evidence. We find that providers do not condone any deliberate act or omission by care staff designed to harm or distress a client. Basic ethical principles make it clear how healthcare professionals should make the care of their clients their primary concern. These should not need to be spelled out. Unfortunately mistakes do sometimes happen, even by carers working for outstanding providers. These are often as a result of rushed home care visits, which are limited by the amount of time that is commissioned by local authorities.
The programme highlighted the difficulty with the definitions of abuse and neglect, which can often be fluid. Whilst in the context of criminal proceedings, wilful neglect will have an element of conscious decision making, rather than recklessness or negligence. The Crown Prosecution Service confirms that there is no simple offence for the "neglect" of an older person, other than in those circumstances set out in the Mental Capacity Act 2005 or the Mental Health Act 1983. In the context of the Coroner’s Court “neglect” is defined as “a gross failure to provide adequate sustenance, medical attention or shelter for a person in a position of dependency, whether by reason of a physical or mental condition”. The term "abuse" is used to describe a wide range of behaviours, many of which are, in fact, are covered by other offences.
Highlighting the quality of your care to local authorities, at times like this, is important and can help when negotiating fee increases. It is also likely that there will now be more appetite for the police to bring prosecutions against care providers who find themselves in the unfortunate situation where they have to defend proceedings.
For further information
For further information on our regulatory offering, see our website or contact Sarah Knight. We can assist with advice in relation to safeguarding referrals, police processions, coroner proceedings, or support with funding negotiations.
*A care provider will be guilty of an offence if:
- One of its care workers ill treats or wilfully neglects a service user under its care;
- The way in which the provider manages or organises its activities amounts to a gross breach of a relevant duty of care owed to the service user;
- Without that breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur; and
- The wording of the offence mirrors that used for corporate manslaughter. In particular, there must be a gross breach of duty by the provider rather than simply a failure to take reasonable care.
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