Criminal Justice and Courts Bill

Baroness Meacher Excerpts

Monday 20th October 2014 Lords Chamber

Moved by

[Baroness Meacher]

42: Clause 19, page 18, line 3, leave out “It is an offence for”

[Baroness Meacher (CB)]

My Lords, I shall speak also to Amendment 43A, which takes the place of Amendment 43 on the Marshalled List. The intention was to have withdrawn Amendments 45 and 46, so I shall not refer to those two amendments today.

I must apologise to the Minister and your Lordships for coming into this debate rather late in the day. The noble Baroness, Lady Finlay, who I was going to say is not in her place but who now is, is the person who has raised the concerns about Clause 19 at earlier stages and had a very helpful meeting with the Minister.

Clause 19 introduces a new offence of ill-treatment or wilful neglect by care workers, including doctors and nurses. A similar offence for care providers is introduced in Clause 20. I have less of a problem with an offence of ill-treatment—it seems to me that that is a proactive act which is a little bit clearer—but I have no doubt that an offence of wilful neglect of an individual would lead to criminal investigations of good clinicians simply because patients may believe that they should have had medications or treatments which were not appropriate at the time or may have been judged not appropriate by the relevant clinician.

Our amendments would raise the bar for such offences for individual doctors and nurses by introducing the requirement that the care worker commits an offence only if their activities amount to a gross breach of a relevant duty of care owed to the individual who is allegedly ill-treated or neglected. Of course, I understand the history behind Clause 19 and the fact that offences already exist for ill-treatment and wilful neglect of children in certain circumstances and of adults who lack capacity. I suggest that such situations are rather different from those of competent adults in, for example, an acute hospital or GP surgery. My concern is that we have lost sight of proportionality here, and the consequences will be disastrous, both for good, conscientious clinicians and for the NHS, with its impending £30 billion funding gap.

Of course, none of us can accept ill-treatment or wilful neglect of patients—and I will come back to that in a while. I wonder whether those in the Government who designed this new offence for individual clinicians have really appreciated the devastating effect on conscientious care workers if they find themselves under criminal investigation when it is clear that they have used their clinical judgment in good faith or done their very best with the resources available to them.

The Government have stated that the offences are intended to deal only with the most serious incidents—that has to be right. However, the offence is broadly drafted and the police will have an obligation to investigate cases of alleged neglect unless it is absolutely clear at the outset that there is no case to answer. Almost any decision could potentially be investigated for wilful neglect, even though, later, the vast majority and probably the whole lot would not go all the way to prosecution and a guilty verdict. The question of proportionality is therefore highly relevant.

Criminal investigations are incredibly disruptive, time-consuming and costly. The potential cost to the NHS of disproportionate criminal investigations is impossible to estimate accurately, but my main concern is the unwarranted distress and catastrophic nightmare that such investigations would cause for the conscientious worker—and the vast majority facing investigation probably would be conscientious workers. It is not acceptable for the Government to say that it would be up to prosecutors not to prosecute other than in serious cases. It would be far too late at that stage to prevent the damage. Doctors and nurses are likely to find themselves suspended during a criminal investigation—it is very different from a disciplinary investigation. Their self-respect, and professional and public respect, will be in ruins. Huge damage will have been done before the matter comes anywhere near prosecutors. Does the Minister agree that the problem with Clause 19 is the investigations rather than, later down the line, the prosecutions?

I am aware of the Government’s consultation in March this year on the proposed formulation of the new offence. They claim, and I do not doubt it, that the 130 responses indicated broad support for the proposals. On the face of it, they sound eminently reasonable—how could one disagree with them that we need to deal with these problems—but I question the clarity of the consultation documents on the consequences of Clause 19 and those investigations. I do not believe that the British people would support the cost, disruption to services, and devastation caused to good workers, doctors and nurses that criminal investigations would create under these provisions.

I understand that the appalling consequences for doctors in hospital settings have been debated at earlier stages of the Bill. I agree with others that Clause 19 will be entirely disproportionate in its consequences for those hospital staff. I will focus on GPs because they are incredibly vulnerable to malicious complaints.

As things stand, we know that GPs daily experience fear of complaints. We know, and the Minister knows, that GPs regularly have to see 60-plus patients in a day. Many of those patients will have relatively minor ailments, but in that list will undoubtedly be patients with life-threatening illnesses. This means 10 hours of stressful, direct patient contact. Any one of those patients may leave the surgery dissatisfied, rightly or wrongly, with the outcome of the consultation. The patient may want an antibiotic and the doctor may know that it is not the right thing. The issue then is whether the doctor really has the time to explain the whole business about why an antibiotic may not be a good idea. That is their vulnerability: if they had all the time in the day slowly to explain to patients, or to people with learning difficulties or language problems or whatever it is, there would be no problems, but doctors do not have that luxury, and GPs certainly do not. Any angry patient could regard this as wilful neglect. Of course, it is not, and ultimately there would not be a prosecution, but the investigation will nevertheless have to take place.

The point then is not about the prosecution. Does the Minister really believe it appropriate for the threat of a criminal investigation to hang over GPs, nurses and doctors every time they go to work? I could not cope with work if every day—and every 10 minutes—I was worried that I might face a criminal prosecution for the judgment I was making. I say it again: we will not tolerate ill treatment or wilful neglect of patients. The question is whether Clause 19 and criminal investigations are the best way of dealing with these issues.

Have the Government assessed the likely impact of this new offence on the willingness of doctors to become GPs and on their early retirement plans? In this country we already have a shortage of doctors willing to train as GPs. Large numbers of doctors—six in 10, we understand—are planning early retirement. What will happen to the supply of GPs if Clause 19 comes into effect? The BMA describes the situation already as having reached crisis point. GPs are moving abroad as the pressures in this country become more and more unpleasant.

Applicants for GP training are at their lowest level for five years. Advertisements for GP partners that we know five or 10 years ago would have had 30 responses now receive maybe none. Nobody wants to be a GP partner these days even in quite desirable areas—and I happen to know a few. At the same time the pressure to transfer more care into the community rises year on year. I appeal to the Minister to think again before Third Reading. The Minister can quote from the ambitious figures for the number of GP training places to be made available, but will there be any trainees to fill those places? There is also the expectation—I would say a wish—that the number of trainee doctors becoming GPs will increase from 40% to 50%. Well, I doubt it if this clause becomes law.

Amendments 42 and 43A seek to raise the threshold for a criminal investigation of a professional care worker. I read the Minister’s letter to the noble Baroness, Lady Finlay, but I have to confess that I was not persuaded by the arguments. As I said, none of us can condone ill treatment or wilful neglect of patients. I have repeated that again and again because that is not the point here. The point is how we deal with these things not whether we do so. The Government have strengthened the Care Quality Commission and I applaud them for doing that. The Care Quality Commission needs to be able to deal with these things effectively, and much better they be dealt with through the Care Quality Commission than in this way. I hope the Minister can assure us that further thought will be give to this damaging clause before Third Reading. I beg to move.

[Baroness Finlay of Llandaff (CB)]

My Lords, I apologise for coming in just after my noble friend Lady Meacher had started speaking, due to traffic congestion. I am most grateful to her for having put the amendment so clearly. I endorse the point that nobody, but nobody, thinks that wilful neglect is all right. It is not all right. It is not to be allowed to even happen let alone condoned. The problem is that the burden of proof on the individual and on the organisation that employs them has been set at different levels as the clauses are currently drafted. The requirement is to prove gross neglect for an organisation but that had not appeared in relation to the offence committed by the individual. The difficulty is proving intent.

I had a meeting with the Minister at which he spent a great deal of time—I am very grateful to him—and he replied fulsomely with a long letter following that conversation. I remain unconvinced that the Bill will not effectively result in healthcare professionals being hung out to dry—that was a phrase I used before and I use it again—by an organisation that does not support its clinical staff adequately when serious complaints come in. At the end of the day, it is not wilful neglect but it is interpreted and viewed by understandably distressed relatives as neglect of their relative who may have suffered serious harm within the system or become extremely ill because of the progress of the disease. Although the work conditions for the staff have made it extremely difficult for them to function well, they have not been guilty of wilful neglect.

I stress that I do not think this applies only to nurses and doctors. If a physiotherapist or an occupational therapist declines to comply with a request from a patient or their family, that could be interpreted by the family or patient as wilfully withholding something that they feel they need. There is then some unintended adverse incident further down the line that was not predicted and the complaint goes against that healthcare professional. No one should underestimate how damaging it is to a healthcare professional to have a complaint made against them, and how most extremely conscientious healthcare professionals can feel quite destroyed by a complaint. However, an accusation of wilful neglect that goes to the police would certainly destroy somebody’s professional reputation. Even if it proceeds no further, they will find it very difficult to shed the trauma of that experience of being referred to and investigated by the police.

I hope the Minister can clarify exactly how intent will be interpreted and implemented, and how it will be proven that an organisation has intent to neglect patients. I suggest that the organisation can prove that it did not directly intend to but, actually, if it is really badly managed and is not supporting its front-line workers, it is neglecting patients because it is not allowing its staff to do their duty properly. However, I can see that such an offence would be very difficult to stick anyway. Certainly, if the burden of proof is higher for the organisation than for the individual, as I said before, I foresee that people will be hung out to dry.

--- Later in debate ---

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe) (Con)]

My Lords, I thank all noble Lords for their contributions to the debate on these important new offences. I have listened carefully to all four speeches. If I may, I shall start with government Amendments 47, 48, 49 and 50. These are minor and technical amendments, which add additional types of excluded care provider to those already identified in Clause 21, for the purposes of the care provider ill treatment or wilful neglect offence in Clause 20.

The Clause 21 exclusion currently applies to local authorities when exercising their functions in respect of the provision of education and other children’s services and other organisations when exercising social work functions relating to children on behalf of a local authority. It has come to light that a small number of third-party providers might also exercise education or other children’s services functions on behalf of the local authority or instead of the local authority, following a formal direction from the Secretary of State, or, as the case may be, from Welsh Ministers. Clearly, it would be unfair for such provider organisations not to be excluded from the care provider offence to the same extent that the local authority would be if it were exercising the relevant functions itself. Amendments 47 and 48 therefore remove these organisations, to the extent that they are providing those services, from the meaning of a “care provider” for the purposes of Clause 20 in England and Wales.

Amendment 49 makes similar provision in relation to independent agencies that provide adoption support. Those providers that are run by local authorities will already be covered by the exclusion in Clause 21. However, as currently drafted, independent agencies with which a local authority has made arrangements for the provision of adoption support, will not. Amendment 49 corrects this small inconsistency. I hope that that is helpful to the noble Baroness, Lady Thornton. The organisations in question are “registered adoption societies” and “registered adoption support agencies”. Amendment 50 places definitions of these phrases in the Bill. I am sure that noble Lords will agree that it is important to make these changes, to ensure that there is consistency and equity in the application of the care provider offence across organisations. To answer the express question of the noble Baroness, Lady Thornton, who asked whether the exemptions included private adoption agencies, free schools and academies, the answer—as I hope she has gathered from my remarks—is yes.

Amendments 42 and 43A, in the name of the noble Baroness, Lady Meacher, seek to achieve two particular purposes, and try to put the individual care worker offence on a par with the care provider offence. They restructure Clause 19(1) so that the care worker offence is dependent on there having been a gross breach of a duty of care owed by the care worker to the victim of the alleged ill treatment or wilful neglect. I understand the point that the amendments seek to make—that there should be some kind of a threshold in order for the offence to bite.

However, there are real problems with the noble Baroness’s approach. We have approached the issue in a different and, I suggest, a better way. The “wilful” element of neglect, and the intent to cause harm required for someone to be found guilty of ill treatment, means that the threshold for this offence as drafted in the Bill is very high and, by its very nature, captures only the worst types of behaviours. Our view is that should a care worker ill treat or wilfully neglect someone in their care, that would always represent a gross breach of a duty of care. It seems to us that a care worker who is being paid to provide healthcare or adult social care services will always owe a duty of care to the individual to whom those services were being provided. That ill treatment or wilful neglect of the individual, which would involve some form of deliberate act or omission, would amount to a gross breach of that duty.

Regretfully, accepting the noble Baroness’s amendments would cause significant unnecessary confusion and complexity and it would risk diverting attention away from the central issue of what has been done by that individual care worker in respect of a person in their care. It would be unhelpful to introduce the concept of a duty of care explicitly. Moreover, specifying that there must be a gross breach of the duty of care in effect raises the threshold before the offence could come into play. There would be a very real risk that behaviour which anyone would recognise as ill treatment or wilful neglect could go unpunished. Any ill treatment or wilful neglect is totally unacceptable, and the care worker offence is drafted very carefully to reflect that. The Government could not accept any amendments that might undermine that and make it harder in practice to prosecute an individual care worker. The approach that we have taken is simpler, clearer and more logical.

The noble Baroness, Lady Meacher, expressed her fear that our proposals might lead to an avalanche of cases and to innocent professionals being “hung out to dry”, as it was put. To address that point, it is important to note that employees of a hospital or a care organisation are already subject to other statutory duties in relation to the care of patients, for example with regard to negligence and to health and safety. The offence that we are proposing would only bite if someone behaves in a way that meets the criteria of the offence—the very worst cases where their behaviour amounts to ill treatment or wilful neglect. We do not share the pessimistic view of the attitudes of health and social care staff that—

[Baroness Meacher]

Can the noble Earl explain what he means by “will not bite”? He seems to be saying that the doctor or nurse will not be found guilty if they have not indulged in a gross breach of duty, but does the noble Earl accept that these doctors and nurses could easily find themselves under criminal investigation even if they have acted utterly properly and with good faith? That is the issue, rather than the issue of where it bites.

--- Later in debate ---

[Earl Howe]

My Lords, this is Report stage so I shall be brief, but I am grateful to my noble friend for the point she has made. I understood from the noble Baroness, Lady Meacher, that she was not proposing to speak to Amendments 45 and 46. Nevertheless, the noble Baroness, Lady Finlay, raised a point about the unevenness between the two offences. However, I agree with my noble friend Lady Barker. If we interfere with the wording as drafted in the Bill, we are in serious danger of doing the very opposite of what the noble Baroness, Lady Finlay, seeks, which is to have the two offences broadly on a par with each other.

[Baroness Meacher]

I thank the Minister for his response. I do not believe that offences for GPs and other doctors involving competent adults are comparable with offences for front-line staff dealing with incapacitated adults or children. The noble Earl indicated that they are somehow comparable, and that because there has not been a swathe of complaints in relation to the earlier offences, we would not get them here. I think we would and that has not been fully dealt with. I recognise what the noble Earl has said—and certainly recognise what Paul Burstow has said—and do not have concerns about Clause 20 in particular, but there are concerns about this. We have not been able fully to deal with matters today and I hope that we can have a further discussion with the Minister before Third Reading. I understand the purpose of Third Reading but it is very difficult to feel that we can just leave this here when there are so many ends not tied up at this stage.

[Earl Howe]

I am sorry to disappoint the noble Baroness but I cannot undertake to agree that the Government’s position will change on this matter.

[Baroness Meacher]

I understand what the noble Earl is saying but we need to discuss how we take this forward and what we do at Third Reading. With that, I beg leave to withdraw the amendment.

Amendment 42 withdrawn.