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Neglect and Ill-Treatment – Setting Out the Law
We heard more of the terrible events at Hillcroft Nursing Home near Lancaster this month when four care workers were sentenced for their part in the abuse of elderly residents. The sentences ranged from a community order to 8 months in prison. What was the legislation they were prosecuted under and are there legal lessons for care home managers?
Offences under the Mental Capacity Act
The four staff were prosecuted under section 44 of the Mental Capacity Act 2005 (MCA). This is a relatively new piece of law that specifically protects people who lack mental capacity. What the law says is that it is a criminal offence to either ill-treat or wilfully neglect someone in your care who lacks mental capacity. Let’s consider some of these terms:
- Wilful neglect and ill-treatment are two different forms of abuse. Ill-treatment can be causing physical harm, but equally could be verbal bullying or intimidation. Wilful neglect can include not providing food or drink, or not giving someone the medical attention they need. The MCA Code of Practice gives some more examples in Chapter 14. The Code can be found at: http://www.justice.gov.uk/downloads/guidance/protecting-the-vulnerable/mca/mca-code-practice-0509.pdf
- Care of a person is not just the responsibility of organisations or managers. This section of the Mental Capacity Act is concerned with anyone who has care of someone else who lacks capacity and that includes family members or any staff in a care home.
- Mental capacity in the MCA is usually described as being decision-specific, that is the person lacks the capacity to make a particular decision because of mental impairment. The decision that the person can’t make here is about not being able to resist the abuse that is happening to them.
What would have happened if the residents at Hillcroft did have mental capacity? In such cases prosecutors would have needed to rely on criminal law concerning offences of assault which could have been much more difficult to prove.
Lessons for the future
Thankfully there were other staff at Hillcroft who saw the abuse and reported it, presumably at some personal risk to themselves. It is distressing to think about this, but there may well be future incidents like the ones at Hillcroft. Decent staff need to be given the confidence to report such incidents, and effective training can play a part in giving that confidence. All care staff should be getting training in the key elements of the Mental Capacity Act 2005, and that includes what section 44 is all about.