It has been reported that three healthcare assistants have been charged with wilful neglect and ill treatment of patients following an investigation into the alleged abuse of elderly patients at Whipps Cross Hospital in north London.
Whatever the outcome of these proceedings, more and more instances of such allegations are being considered for prosecution and care home owners are seeking advice on compliance issues to avoid liability.
Recently, Mencap and The Challenging Behaviour Foundation said that the abuse of vulnerable people in the Winterbourne View home in Gloucestershire, exposed by BBC Panorama, is not an isolated occurrence. The two charities alone have passed on 260 serious cases involving allegations of physical assault, sexual abuse and excessive restraint to authorities in the last year.
It is imperative that care homes engage with compliance issues to prevent deaths occurring. Abusive individuals should be identified and prosecuted and, since care homes are often owned by people with no experience of health care, they must seek advice to protect themselves from liability for corporate killing.
The role of the Care Quality Commission
The temptation to limit resources means that workers may not be neglectful but are simply unable to provide the necessary care – resolving this issue is the responsibility of the Regulated Provider. The Care Quality Commission (CQC) is the independent regulator of health care and adult social care services in England. They also protect the interests of people whose rights are restricted under the Mental Health Act. In summary, whether services are provided by the NHS, local authorities or by private or voluntary organisations, the Regulated Provider must: focus on quality and act swiftly to eliminate poor quality care; and ensure care is centred on people’s needs and that their rights are protected.
The CQC provides guidance to service providers on compliance, and the essential standards that they must meet. Many organisations are required by law to register in order to conduct regulated activities. The need for registration depends on what activity you provide within your “service type”. A service provider can be an individual, a partnership or an organisation. If a provider is a subsidiary of a bigger company but is the legal entity responsible for the service, it will need to register in its own right. Regulated activities are listed in Sch 1 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2012.
Section 44 of the Mental Capacity Act 2005 came into force on 1 April 2007. It creates an offence of wilful neglect of a person in care. It works in the same way as the law on child cruelty. Sub-s (2) applies if a person (“D”) has the care of a person (“P”) who lacks, or whom D reasonably believes to lack, capacity. For the purposes of the Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
The elements are therefore: does the person lack capacity, did the defendant have care of that person, did the defendant reasonably believe that the person lacked capacity, did the defendant ill treat or wilfully neglect that person?
Many care home residents lack capacity due to special needs. There are all sorts of conditions that people suffer from – and what they need is kindness and care. This should be obvious to competent staff and the evidence would be contained in the relevant notes (or lack of them). The criteria are akin to those in s 127 of the Mental Health Act 1984 which was considered in R v Salisu and others  EWCA Crim 2702 where a staff nurse was convicted. Lack of capacity and individual liability was considered in R v Hopkins; R v Priest  EWCA Crim 1513 where the appellants were charged in an indictment containing 16 counts which alleged that they, while having the care of a named resident – a person who lacked capacity or who they reasonably believed lacked capacity – ill treated or wilfully neglected that person.
The court observed that the purpose of the Mental Capacity Act 2005 was to make new provision for those who lacked decision-making capacity, to establish the Court of Protection and to incorporate into domestic law the Convention on the International Protection of Adults.
The aim of the Act was to make provision for the protection of the interests of those who lacked mental capacity such as, but not limited to, the elderly who suffer from dementia and also for the protection of those who care for such persons when acting in their best interests.
Following R v Clare Dunn  EWCA Crim 2395 the court concluded that it was open to the jury to conclude that the decisions about the care of each of these residents at the time they were subjected to ill-treatment were being made for them by others, including the appellant; that they lacked the capacity to make these decisions for themselves. Decisions as to capacity are made on the balance of probabilities without disturbing the criminal standard of proof on neglect or ill treatment.
What must be proved is not mere negligence but wilful failure to use reasonable care and skill by staff who, in those cases, failed to properly supervise and manage patient care. Medical and nursing staff cannot claim to abrogate responsibility to poorly paid unqualified carers often used by care home owners to save money. In one case in which I was involved, it was plain that no record had been kept of what the patient had been offered to eat and drink; her intake was not properly monitored by the supervising nursing staff, weights and measures were kept in separate records and hospital notes did not follow the patient. The care assistants in such circumstances may not be neglectful at all but the system within the organisation lets the patient down to such an extent that lives are at risk.
In the event of a death, an individual can be prosecuted for gross negligence manslaughter/culpable homicide and for health and safety offences. However, as mentioned above, it can be shortcuts by care home owners that lead to the sorts of pressures that bring about such cases. Systemic failure that leads to death may not only lead to prosecution of individuals but also to private care homes.
On 17 February 2011, Cotswold Geotechnical Holdings was found guilty, after a three week trial, of corporate manslaughter and was subsequently fined £385,000. The conviction related to the death of geologist Alexander Wright who on 5 September 2008 was taking soil samples from a pit which had been excavated as part of a site survey in Gloucestershire. The sides of the pit collapsed crushing him. He was buried alive and died of traumatic asphyxiation. The working practice of the firm was grossly negligent in asking him to be in a 12 ft unsafe pit. The maximum depth of a trench in which someone is permitted to work in these circumstances is 1.2m.
Professor Gary Slapper said: “A good law on corporate manslaughter is especially important nowadays as companies have become so powerful… Cotswold Geotechnical Holdings is a small company but now that the law has been successfully used in this case, it is clear that it can be effective in all cases as the legal principles that attach blame to a company apply in the same way whether it is small or large.”
Recently, the third ever prosecution for corporate manslaughter led to a guilty plea by Lion Steel Equipment Limited following the death of an employee who suffered fatal injuries when he fell through a fragile roof.
Here there was a Corporate Manslaughter Act 2007 prosecution against the company alongside a prosecution against an individual; although, in the end the case against the directors was severed and not pursued.
Proof of corporate manslaughter depends on gross negligence by systemic failure. In judging whether the company is grossly negligent, the jury is bound by the Act to consider how serious the effects of its breaches of health and safety regulation were.
Corporate Manslaughter Act 2007
The Health and Safety Executive website sets out the purpose of the legislation. The Ministry of Justice has also issued guidance on how the Corporate Manslaughter Act 2007 will be applied. Ultimately, an organisation will be guilty of the new offence if the way in which its activities are managed or organised causes a death and amounts to a gross breach of a duty of care to the deceased.
In the event that there is a fatality and a jury is charged to consider corporate liability for the death of an elderly patient, the issues will be how the fatal activity was managed or organised throughout the organisation, including any systems and processes for managing safety and how these were operated in practice.
The Act targets not the healthcare assistants but those at senior level who “make significant decisions about the organisation or substantial parts of it. This includes both centralised, headquarters functions as well as those in operational management”.
An organisation will be guilty if its conduct fell far below what could have been reasonably expected. In many cases, consideration will not merely include health and safety breaches but also compliance with guidance from bodies such as the CQC. The focus moves principles of gross negligence from the civil courts to the criminal arena and makes for a public condemnation of a healthcare organisation.
In practice, the reality is that allegations against an individual care worker are likely to be defended by exposing the conduct of the organisation and organisations in the spot light will seek to blame individuals. It doesn’t make for easy criminal cases and, given the state of healthcare record keeping, disclosure will be a constant battle. Andrew Bennett of Eversheds has warned: “Until a large healthcare organization is actually prosecuted and tried in Court, investigators will continue (without having any guidance to the contrary) to investigate all the way up to the top.”
Care homes, you have been warned!