Commentary on Sections Offences involving ill-treatment or wilful neglect Section 20: Ill-treatment or wilful neglect: care worker offence
213.Section 20 makes it an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully neglect that individual. The offence will apply in England and Wales.
214.Subsection (2) establishes the penalties to which an individual found guilty of the offence will be subject. On conviction on indictment, the penalty is imprisonment for a maximum of 5 years, or a fine, or both. On summary conviction (subject to subsection (9)), the penalty is imprisonment for a maximum of 12 months, or a fine, or both.
215.Subsection (3) defines “care worker” for the purposes of this section, as an individual who is paid specifically to provide health care for adults or children other than health care that is excluded (see subsection (5) and Schedule 4), or to provide adult social care. “Care worker” also includes an individual who is paid specifically to supervise or manage individuals providing such care, and a director or equivalent of an organisation providing such care. The intention is to ensure that the individual offence can apply to any individual perpetrator, not just those on the “front line” of care provision. However, it will only apply where the individual supervisor, director, etc has themselves directly committed ill-treatment or wilful neglect. They will not commit the individual offence by virtue of the acts or omissions of others they supervise or manage.
216.Subsection (4) defines “paid work” for the purposes of this section, as work for which an individual is paid, or is entitled to be paid, other than: a) payment in respect of reasonable expenses; b) payments to foster parents in respect of their work as a foster parent; c) a social security benefit; and d) a payment under arrangements under section 2 of the Employment and Training Act 1973 (to assist people to select, train for, obtain and retain employment)
217.The purpose of limiting the offence to those performing ‘paid work’, as defined, is to ensure that informal arrangements, such as unpaid family carers and friends, are not captured by the offence. The intention is also to exclude from the definition situations where an individual works as an unpaid volunteer, but receives, for example, reimbursement of travel costs to get to and from the place where they volunteer. Similarly, this exclusion would also cover an informal family carer who occasionally receives a contribution from the person they care for towards the personal costs they incur in providing that care. Such reimbursement is not to be treated as amounting to paid work. Payments received by foster parents specifically in respect of their work as foster parents, are also to be disregarded for the purposes of this section. The intention is also to exclude from the definition of paid work any social security benefit for which, for example, claimants are required to undertake unpaid work as a condition of receiving that benefit. So, for example, an individual working in an adult care home as part of the Department for Work and Pensions’ “Work Programme” will not be treated as being in paid work.
218.Subsection (5) defines “health care” for the purposes of this offence. The definition includes services provided as part of the protection or improvement of public health, for example smoking cessation support, and is also intended to capture services, such as cosmetic surgery, that are not necessarily directly related to a medical condition. This subsection also introduces Schedule 4, which defines “excluded health care” for the purposes of this section.
219.Subsection (6) defines “social care” for the purposes of this offence.
220.Subsection (7) specifies that where health care or adult social care is provided incidentally to a person’s main duties, this should be disregarded for the purposes of the offence. So, for example, a prison officer who, as a “good Samaritan” act, assists a prisoner in adjusting a hearing aid, could be perceived as providing practical assistance within the definition of social care. However, the intention is that such activity would not fall within the scope of the offence. In this example, the prison officer would have provided the assistance (albeit in the course of performing their duties) incidentally to their custodial duties, not by virtue of being a care worker. The same principles would apply to, for example, police officers and office workers in similar circumstances.
221.Subsection (8) defines the terms “adult” and “child” - an individual is to be considered to be an adult once they have attained the age of 18 years. It also defines the phrase “foster parent” for the purposes of subsection (4).
222.Subsection (9) makes provision for the maximum permitted sentence which can be imposed under subsection (2)(b) to be contingent on whether section 154(1) of the Criminal Justice Act 2003 has come into force at the time an offence under this section is committed. Where an offence under this section has been committed prior to section 154(1) coming into force the maximum sentence on summary conviction will be 6 months. .
223.Subsection (10) makes provision for the maximum level of any fine imposed under subsection (2)(b) to be contingent on whether section 85 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 has come into force at the time an offence under this section is committed.