Mark Mckone discusses protection for Care home residents in Criminal Law

Protection for residents in care homes through the criminal law

Opinion

I am asked to provide an opinion on whether the criminal law adequately protects residents in care homes from being ill-treated.

General criminal law

Everyone has the protection from the general criminal law.

For offences of violence, most offences are governed by the Offences Against the Person Act 1861.

The two most used offences are assault occasioning actual bodily harm [ABH] which carries a maximum sentence of 5 years imprisonment and causing grievous bodily harm [GBH-also called really serious harm] with intent to do GBH, which carries up to life imprisonment.

Sentencing guidelines look at harm and culpability (blame).

The case goes into the top bracket for harm if the victim is particularly vulnerable due to personal circumstances.

The case goes into the top bracket for culpability if the offender has deliberately targeted a vulnerable victim.

So, if an offender caused really serious injury (and intended to cause really serious injury) to a vulnerable resident in their care, there is likely to be a starting point of 12 years imprisonment.

The Sexual Offences Act 2003 also protects all citizens and includes offences such as rape and sexual assault.

The sentencing guidelines put the case into a greater harm bracket if the victim is particularly vulnerable and into a higher culpability bracket for any abuse of trust.

Sentences for all sexual offences are now severe and sentences for sexual offences upon care home residents are very severe.

Offences which only apply to care workers.

The sexual Offences Act 2003 has specific offences where the victim has a ‘mental disorder’. These are covered by sections 30-41.

Sections 38-41 apply specifically to sexual activity between a care worker and a person with a mental disorder. For example s38, is the offence of a care worker having sexual activity with a person with a mental disorder.

This legislation is designed to cover residents who do not have the capacity to consent to sex.

Parliament created specific offences for care workers with the Criminal Justice and Courts Act, s20. [This Act also dealt with many other issues unconnected to care].

I anticipate this legislation was introduced because it was difficult to prove specific offences of assault, because there was insufficient evidence.

S20(1) states ‘It is an offence for an individual who has care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual’.

This carries a sentence of up to 5 years. Whilst this seems to be a low maximum sentence, the general criminal law would hopefully be used where serious injury was caused or sexual abuse had taken place.

Concepts of ill treatment and neglect are wider than assaults and easier to prove. Ill-treatment could include shouting at a resident.

The concept of neglect is unusual in the criminal law [although it has long applied to children] because acts of omission are not normally criminalised.

Prosecuting managers and directors.

Corporate bodies or unincorporated associations acting as care providers are not subject to the s20 offence.

However, s20(3) defines a ‘care worker’ as ‘including an individual who, as paid work, supervises or manages individuals providing such care, or is a director or similar officer of an organisation which provides such care’.

In my opinion, therefore a manager or director could be prosecuted for neglect if he knew a carer was causing harm to residents and did not take steps to remove him.

Conversely, a manager or director could not be prosecuted for an act by a carer which they had not anticipated.

S21 does allow the management [‘care provider’] to be prosecuted, either as company or unincorporated association (ie. a prosecution in the name of the company/business itself) or as individuals.

S 21(1) has 3 elements which the prosecution must prove, namely a) a care worker has ill treated/neglected a resident, b) ‘the care provider’s activities are managed or organised in such a way which amounts to a gross breach of a relevant duty of care owed by the care provider to the individual who was ill-treated or neglected’ AND c) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur’.

Again, this is extending criminal law principles which do not normally recognise concepts such as ‘less likely to occur’.

Therefore, managers/directors who do not put steps in place to make sure that carers are appropriately selected and trained and are looking after residents properly could be prosecuted.

Inevitably, a s21 offence would be harder to prove than a s20 offence and I anticipate that s21 prosecutions are only brought after a number of serious incidents have occurred over a significant period of time

Death of a resident

Obviously, a care worker could be charged with murder or manslaughter as part of general criminal law.

An organisation can be charged with corporate manslaughter ‘if the way in which its activities are managed or organised by its senior management is a substantial element’ in the gross breach of duty of care to the deceased.

If an organisation is prosecuted then only a fine can be imposed, but fines tend to be huge and they can cause a business to collapse.

Proving any crime [evidence]

The prosecution have to prove that a defendant [person or business] is guilty.

A jury can only convict if they are sure that a defendant is guilty. This is a high standard, much higher than in the civil Courts where compensation claims are decided on what lawyers call a balance of probabilities.

The Crown Prosecution Service must conclude that there is a reasonable prospect of a conviction before a charge is authorised.

To prove a case the prosecution must provide evidence, such as eye witnesses to an assault or cctv.

Encouraging care workers who have witnessed abuse to report it is crucial to many prosecutions. The culture of managers criticising [or worse] carers who report others must be tackled.

Of course, the victim of a crime can be a witness to their own crime, but often the victim lacks mental capacity to either communicate what happened and/or to be a witness at Court.

If a resident is injured by an assault, the care worker can say that the resident fell and this can be very difficult to disprove, although a prosecution for neglect rather than assault might be possible.

I am aware of a campaign to make cctv compulsory in care homes. In my view, this would assist greatly in providing necessary evidence of abuse, although there will be a debate as to whether cctv should be in bedrooms as opposed to public areas. Additionally, cctv would be a sufficient deterrent to prevent much of the abuse taking place.

Parliament has also made it easier for vulnerable victims to give evidence. The Police can visit the care home and video record their account. The video can be played as their evidence in Court. They can be cross-examined by video from the care home. If victims die between making the video recording and being cross-examined then usually their video recording will still be played to the Court.

In a case where injury is caused, it is possible to ask a pathologist to give an opinion on how the injury was caused, including on whether the care worker’s explanation is credible. In my experience, the Police can be reluctant to pay for such an opinion, unless the injury is especially serious. Additionally, many injuries are consistent simply with some ‘blunt force’ which does not help to distinguish between a punch and a fall.

Final opinion

In my view, the criminal law does adequately protect residents of care homes. Parliament has created crimes beyond the criminal law to address care homes specifically and to create criminal liability against managers. Parliament has also made it easier for vulnerable witnesses to give evidence.

The reason why it is often difficult to bring prosecutions is because there is insufficient evidence to make a jury sure that a crime has taken place.

Experts who have experience of the care home sector are better placed than me to say how ‘evidence gathering’ can be improved, but it seems to me that cctv and encouraging carers to complain about other carers are the main areas which could be improved. These factors would also prevent much of the abuse taking place at all, which ultimately is what we all want to achieve.

Mark McKone

5th February, 2021