The Private Members’ Bill put forward by former care services minister, Paul Burstow MP, to make care home owners criminally accountable in cases of abuse, has received a mixed response from the care sector.
Mr Burstow has called for a new offence of corporate neglect carrying the sanction of unlimited fines in a Bill that received the support of eight MPs on its first reading.
His proposals are part of a report 'Care and Corporate Neglect' setting out how a new law could be enacted and what the Government needs to do to ensure adult safeguarding in England is improved in the wake of the Winterbourne View care scandal.
Mr Burstow said: “Everyone was shocked that the company in charge of Winterbourne View was not put in the dock to face criminal charges. It is not good enough for the thugs who carry out this kind of abuse to receive a criminal conviction, when the companies in charge have no criminal corporate accountability whatsoever.”
He added: “It's about time those who take the fees, and employ and manage the staff in care homes are held to account for abuse and neglect that takes place on their watch.”
However Martin Green, chief executive of English Community Care Association, voiced his concern over the proposals and said that if there is to be a new law on corporate neglect it needs to be applied across the system, including the public sector.
He added: “The social care sector is not against accountability, but what we must see is fairness in the way that it is applied. If directors of companies find themselves in court for corporate neglect, then I would expect to see local authority elected members, and perhaps even health ministers, called to account in the same way. Neglect is unacceptable in any setting and any new law must reflect this.”
The National Care Association also expressed concern over the proposal and urged the Government to be cautious claiming more legislation is not the answer.
Its chairman, Nadra Ahmed said: “It is not that we disagree with the principles behind Mr Burstow’s proposals but we do believe that there should be a comprehensive review of these matters so that the role of all those with responsibility for the commissioning, regulating and delivery of care is clearly defined be it in an NHS ward or a social care setting: the role of trustees and directors are defined but what may need further clarity is the impact on them should they be seen to have failed in their responsibility for the delivery of the service.”
She would like to see clear guidance being put in place by the Government so the public understands they can go to someone who will take their concerns seriously if they wish to report cases of abuse.
If the Bill is passed, care home directors would not only face criminal charges in the event of serious abuse and neglect, but would be forced to supply information to adult safeguarding boards.
A second reading of the Private Members’ Bill will be held on 1 March. Gary FitzGerald, chief executive of Action on Elder Abuse, has backed the proposals. He said: “For too long we have seen vulnerable older people subjected to the most appalling mistreatment while the organisations responsible simply 'get away with it.'
“While it is right that abusing care workers should feel the full impact of the courts and sentencing, it is equally important that those who employ and direct those workers should also face justice. The public expect no less.”
The Winterbourne View care scandal last year led to six care home staff being convicted for abusing and neglecting adults with learning difficulties at the care home in Bristol.
Mr Burstow said in the report ‘what was so sobering about the abuses at Winterbourne View Hospital was that it was not an isolated case instigated by one rogue member of staff, but a sustained campaign of abuse and mistreatment perpetrated by more than ten employees’.
He wants to see the Health and Social Care Act 2008 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 can be found 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.
The move has been welcomed by medical law and patients’ rights expert at law firm Irwin Mitchell.
Jonathan Peacock, a partner at Irwin Mitchell’s Bristol office, specialises in helping those affected by care home abuse and fought for justice on behalf of families affected by serious care problems at the notorious Maypole Nursing Home in Birmingham.
He called it a “very welcome move which would see justice done for victims of abuse, and their families” and said it would “send a very clear message to other home owners going forward that abuse and neglect of any kind is simply unacceptable”.
Norman Lamb, who succeeded Mr Burstow as care minister in September, has indicated that the government is prepared to look at criminal sanctions as one of a number of options.
He has said the firm Castlebeck that owned Winterbourne View, which closed after the BBC's Panorama uncovered evidence of widespread abuse in 2011, should pay towards the cost of the various inquiries into the scandal.
Family Mosaic, one of London’s largest housing associations and care and support service providers, recently published a report called ‘No Going Back’ urging care home providers not to slip back into the institutionalised culture characterised by Victorian asylums.
Brendan Sarsfield, chief executive of Family Mosaic believes the proposed legal changes will only work “if combined with structural and cultural change”.
He said: “Care home owners who are aware of abuse in their homes and choose to ignore it should be prosecuted, however those who identify and tackle abuse should be commended. If not, fines will drive the problem further underground and abuse will be that much harder to stop.”
The Corporate Manslaughter and Corporate Homicide Act introduced in 2007 does allow organisations to be found guilty of corporate manslaughter where serious management failures have resulted in a gross breach of a duty of care, but it still leaves neglect to go unchallenged on a corporate level.
Other countries do legislate on this issue. For example in Alberta, Canada, care corporations face fines of up to $100,000 in such cases.
Dan Corker, lawyer in Freeth Cartwright’s specialist care sector team, which advises care and residential home operators and managers on a wide range of legal aspects of running their businesses, said: “Good providers have absolutely nothing to fear from this Bill. Only those organisations that allow abuse and neglect to go unchallenged should be worried.
“Mr Burstow hopes that this new law would act as a deterrent which would force weak boards of directors to pull their socks up, ensuring they visit their services, talk and listen to the people who use those services and their families. Directors would also need to engage with the staff, showing an interest in them and in their professional development.”
This proposal may be only the first of a raft of changes in regulation of the sector given that the Minister in charge of Care & Support, Norman Lamb, expressed the view in December that the whole regulatory model for the care sector is not actually fit for purpose.
Other issues under consideration are:
• Greater financial scrutiny of care home operators - with companies having to open up their books to inspectors to ensure they are financially sound
• Proposals to 'dramatically reduce' the number of people with learning disabilities who are kept in private hospitals and care homes while the NHS picks up the bill. Lamb said that all such hospital placements would be reviewed by 1 June 2013 and if the care provided was found to be inappropriate or inadequate, patients would be moved to community-based support no later than June 2014
To have your say on this issue please see our debate www.carehome.co.uk/news/article.cfm/id/20/should-care-homes-owners-be-criminally-liable-for-abuse-and-neglect