There’s been a feeling for some time that there are various lacunae or blind spots in the law when it actually comes to bringing a prosecution for failings in NHS trusts and social care institutions. For example, Will Powell has been campaigning for a long time for a duty for candour, where it would be simply unacceptable for healthcare professionals and entities to cover up mistakes legitimately. It may be that statutory instruments of the statute law need to be beefed up, given the well publicised problems in effective sanctions from the GMC and the NMC?
In amidst the complicated debate about the Care Bill on Monday, Labour MP Nick Smith (Blaenau Gwent) suddenly produced the following:
“I congratulate my Gwent colleague, Lord Touhig, who tabled an amendment to the Bill in the House of Lords to introduce the offence of corporate neglect. If we do not get what is needed this time, I would like to table an amendment on the same topic in this House. I hope that following the welcome consultation on strengthening corporate accountability in health and social care that the Minister mentioned, the Government will now make our law fit for purpose.”
Winterbourne View was a shocking example of what happens when people with learning disabilities are failed by bad management and poor care. With the intention of having more private providers in delivering your health and social care, the issue of who exactly is regulating companies has become as important as who is important in regulating individuals. There is already law on corporate manslaughter. There is an arguable case for extending the scope of corporate accountability to wilful neglect so there is accountability when care goes drastically wrong.
The rising number of elderly people, some of whom need residential care, has led to significant private equity investment in the social care market. In a much criticised speech on ‘predators’, Ed Miliband MP criticised the ‘quick buck’ society. Tony Blair has been both praised and maligned for his framing of his debate about society v market, and therefore as Ed Miliband wishes to curb unfettered market power, the issue of more appropriate regulation and corporate accountability in the healthcare sector has become pertinent. Many have been troubled by the billion-pound collapse of Southern Cross Healthcare, whose quick-buck business model caved in when the global recession arrived. The media have now reported that care providers NHP and HC-One are expected to be put up for sale soon with US private equity interest.
After the abuse at Winterbourne came to light, the CQC conducted an investigation into all 23 of the care homes Castlebeck Ltd ran. Out of these homes, 11 were not compliant with the minimum standards and four of these were deemed to be of “serious concern”. Many have since argued that the enforcement powers of the CQC are not an effective deterrent to bad care standards, and the CQC themselves (and their allies) have argued that the CQC have entered a new era. This view is further reflected in a statement from the Department of Health themselves, in their final response report to the events at Winterbourne View– where it stated that the CQC “has not always held organisations to account at a corporate level.”
There are of course many different factors that can culminate in institutional abuse such as failings in relation to staff recruitment, training, supervision and ineffective management are important contributory factors to situations of institutional abuse. There’s now a growing sense that we must improve the statutory law on wilful neglect, and I previously argued the actual legal problems with implementing section 44 of the Mental Capacity Act and the new proposed offence. If a patient does not die from poor care and does not have a loss of capacity under the Mental Capacity Act 2005, guidance from the Crown Prosecution Service had stated that a criminal offence is difficult to identify. Given that, respected groups such as Age UK support the proposal that organisations—not just employees—found to have contributed to abuse or neglect in a care setting should be liable to criminal prosecution.
It is argued that corporations who by their actions facilitate abuse or neglect in care institutions must be held criminally accountable. Some of the most comprehensive protections in place for vulnerable adults can be found in Canada where, like America, much of the legislation is created at a Federal level. Section 20.1 of the Vulnerable Persons Living with a Mental Disability Act 199348 (Manitoba State) makes it an offence for anyone to abuse or neglect a vulnerable person and section 20.2 states that service providers have a duty to protect vulnerable adults. A person in contravention of this under section 164 of this act is guilty of an offence and can be jailed for up to two years and/or fined up to $50,00049.
If we are to hold corporations to account for neglect or abuse that occurs in their care homes, it falls on us to look at current corporate law and how this could apply. Perhaps the most relevant piece of legislation is to be found under s.1 of the Corporate Manslaughter and Corporate Homicide Act 2007, which states that an organisation can be found guilty of manslaughter or homicide if in the way that they are run, managed or organised by its senior management, there is a substantial element of the death in question. The Act has seen very few successful prosecutions so far – for example, against Cotswold Geotechnical Holdings, Lion Steel Ltd and JMW Farms Ltd in Northern Ireland. In the Sentencing Guidance Council guidelines for this offence, it states that in a successful prosecution the fine should be proportionate to the size of the company and the offence in question; whilst the HSE clarifies that a successful prosecution will include unlimited fines, remedial orders and publicity orders.
Therefore, a valid approach might be that Health and Social Care Act 2008 could be amended to include a new section under Part 1, Chapter 3, the Quality of Health and Social Care entitled Corporate Neglect, whereby:
“A corporate body delivering services covered by sections 8 and 9 of the Act are guilty of an offence if the way in which its activities are managed or organised by its board or senior management neglects or is a substantial element in the existence and or possibility of abuse or neglect occurring.”
While it would be unwise to say that a change in law would ensure we never saw a Winterbourne View again, it could precipitate an important cultural change which has to be considered in a private company’s business plan. It would be a powerful signal from any Government that senior ministers are concerned about this societal issue.
An entire Bill could be introduced to parliament to hold corporations criminally accountable for abuse and neglect in care settings; to make provision to compel any person or organisation to supply information to Adult Safeguarding Boards; and this could introduce a new offence of corporate neglect whereby a corporate body can be found guilty if the way in which its activities are managed or organised by its board or senior management is a substantial element in the existence or possible occurrence of abuse or neglect.
Finally, crucially, such a new law would powerfully act as a deterrent (and this depends on the practicalities of its implementation and sentencing guidelines.) It would force weak boards of directors to have clinical and corporate governance mechanisms ‘fit for purpose’, and force them to listen to the people who use their services, including the families of those whom they are caring for.
