There is also the risk of criminal liability for care providers. The new offences have been introduced under the Criminal Justice and Courts Act 2015.

When the Mental Capacity Act 2005 came into force it introduced a criminal offence for care workers who ill-treat or wilfully neglect service users. However, the offence only applies to service users who lack capacity and only care workers (rather than care providers) can be liable.

The new offences have a far broader reach as they protect all service users (irrespective of their mental capacity) and apply to both care workers and care providers.

Care workers:

Care workers (including managers, directors and their equivalents) will be guilty of an offence and personally liable if they ill-treat or wilfully neglect a service user.

The offence is not intended to catch genuine mistakes; the care worker must act deliberately or recklessly.

The offence carries a potential prison sentence of five years as well as an unlimited fine.  

Care providers:

A care provider will be guilty of an offence if:

  1. One of its care workers ill-treats or wilfully neglects a service user under its care;
  2. 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; and
  3. Without that breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.
  4. 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.

Providers face the risk of an unlimited fine and a remedial order requiring them to take specified steps to remedy the breach of duty owed to the service user.  The court may also make a publicity order requiring the provider’s conviction to be published, which is likely to result in substantial reputational damage.

However, given that it will take some time for a criminal prosecution to reach a full trial, the more imminent concern for providers is ensuring that they comply with their safeguarding obligations.

The local authority and CQC will need to be notified, which will trigger a local authority safeguarding enquiry (with the risk of an embargo on placements and the removal of funded service users), and an unannounced CQC inspection (with the risk of enforcement action).

I’m a care provider. What should I do now?

Providers should take steps now to minimise the risk of criminal liability.  

We would recommend that you:

  • Provide training to all staff. Ensure they are can speak confidently about the new offences and when they apply. Make sure they understand the serious implications of non-compliance for them personally and the organisation.
  • Update your Safeguarding and Whistleblowing policies. These should include the new offences. Ensure the policies are implemented in practice.
  • Ensure you have robust procedures for reporting and recording any concerns of ill-treatment and neglect. Failing to do so increases the risk of a ‘gross’ breach of duty, thereby triggering criminal liability for providers.
  • Make sure that the risk of criminal liability does not adversely affect the culture in your organisation. Under CQC’s new duty of candour, you and your staff need to be open and honest when things go wrong and a service user suffers harm. Don’t let the fear of prosecution detract from this.

How we can help:

We can provide specialist advice and assistance with:

  • Updating your safeguarding and whistleblowing policies.
  • Managing safeguarding investigations, including:
    • Advice on your obligations, and the local authority’s obligations, under the local authority Safeguarding Policy and your framework agreement.
    • Challenging unfairness or unnecessary delay by the local authority.
    • Limiting damage to your reputation.
    • Advice on all documentation and where necessary, corresponding with the local authority on your behalf.
    • Preparation for and attendance at safeguarding meetings.
    • Assistance implementing action points agreed at safeguarding meetings and managing the local authority to bring the matter to a conclusion as soon as possible.
    • Practical advice on dealing with employee suspension, investigation and disciplinary action and Disclosure & Barring Service referrals. We offer a fixed fee Absolute Employment Protection Service which provides unlimited employment law advice and insurance to protect you against the risk of Employment Tribunal claims
  • Challenging CQC inspection reports and enforcement action

For further information or a free initial consultation please contact James Sage on 0117 9307532 or james.sage@qsbdlaw.com.