There is a growing trend to hold those in control of risk in the care sector responsible, says expert

Out-Law News | 28 Feb 2017 | 2:28 pm | 2 min. read

There is a growing trend to hold care workers in control of risk responsible when things go wrong, a health and safety expert has said.

Sean Elson of Pinsent Masons, the law firm behind, said the trend is indicated by a number of factors, including recent prosecutions brought against care workers, the introduction of new ill treatment offences, and the application of sentencing guidelines for breaches of health and safety laws which were published last year. 

He said figures uncovered by the BBC which show relatively few prosecutions have stemmed from alleged cases of abuse in the UK home care sector do not offer a full picture. 

According to data obtained by the BBC under freedom of information (FOI) laws, there were 23,428 allegations of abuse raised against workers who provide care to people in their homes across the UK, although that number may be higher as only half of local authorities provided data to the requesters. 

The BBC said the data showed that the police were involved in 700 of the cases where allegations of abuse were raised, and there were 15 prosecutions.

However, figures obtained by Pinsent Masons, under FOI laws, show that there have been 36 separate prosecutions brought against care workers and one prosecution brought against a care provider since the new offences of ill treatment or wilful neglect came into force under the Criminal Justice and Courts Act 2015. Of these prosecutions, seven were found guilty and eight acquitted. The data released by the Crown Prosecution Service (CPS) only provides information on cases up to September 2016. 

Elson pointed to that data, as well as two recent cases of successful prosecutions, as examples of the increasing focus of prosecutors in the care sector.

Earlier this month, a care provider was ordered to pay £24,600 in fines and costs after a 79 year old woman "fell against an uncovered radiator at Manor House Residential Home in Morden and received serious burns", the Care Quality Commission in England said.

Last week, former care worker Nikki Deaney of Sneinton Dale, Nottingham, was sentenced to four months imprisonment after a man she was caring for died when on a day trip from Springwood Day Centre in the city. Majid Akhtar suffered an epileptic seizure and drowned when he fell into Kings Mill Reservoir, according to the Health and Safety Executive (HSE), which brought the prosecution. A police investigation found that Deaney "spent a significant amount of time on her mobile phone", the HSE said, and lost sight of Akhtar who she was supposed to be supervising.

Deaney was prosecuted under the Health and Safety at Work Act 1974. However, there are now more specific offences which care providers and their workers may be prosecuted for as a result of the Criminal Justice and Courts Act coming into force.

Individual care workers guilty of causing ill treatment or neglect to someone in their care are now subject to a maximum sentence of five years imprisonment; while individual and corporate care providers may be guilty of an offence if their activities are "managed or organised in a way which amounts to a gross breach of a relevant duty of care and in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur".

Elson said: "Prosecuting authorities clearly have the appetite to bring personal prosecutions against ordinary working people often working for minimum wage and for courts to send them to prison," Elson said. "The latest HSE example is a case in point where someone who had no intention of going to work to injure a vulnerable person was given four months due to her carelessness." 

"The risk of prison sentences for individual care workers and managers has increased due to the health and safety sentencing guidelines and there have been other recent examples of significant sentences being imposed against individuals for safety and abuse offences. There is still a very significant disparity between the number of regulatory reports that are based around allegations of 'abuse', which is defined very widely, and the number of actual prosecutions," he said.

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