Criminal Justice and Courts Bill

Baroness Barker Excerpts

Monday 14th July 2014 Lords Chamber

[Baroness Finlay of Llandaff (CB)]

My Lords, Clause 17 creates a new offence of ill treatment or wilful neglect that is likely to result in hundreds of additional criminal investigations of healthcare professionals, including doctors. The problem is that Clause 17 does not indicate a threshold for the offence against the individual care worker. The Medical Defence Union, which has 128 years’ experience defending healthcare professionals, the Royal College of Physicians, of which I declare that I am a fellow, the BMA, of which I am president, and the Foundation Trust Network are all concerned about this. There is a concern that the police would have little option but to investigate any doctor accused of ill treatment or wilful neglect, even in those cases where charges or prosecution might appear unlikely.

The Department of Health’s consultation that preceded the proposal for the new offence suggested that it would apply only where the alleged crime was so severe that it would merit a criminal sanction over and above any action taken by a regulator, such as the General Medical Council for doctors. The Department of Health has consistently suggested that only the more serious instances of such ill treatment or neglect would give rise to the prosecution of care workers. My concern is that this is not clear in the way in which Clause 17 is worded.

Clause 18 would create a similar offence for organisations providing care. It specifies that for the offence to apply the,

“provider’s activities are managed or organised in a way”,

that means there is,

“a gross breach of … duty of care”,

that the provider owes to the individual. Clause 18 appears to envisage the offence applying only where the conduct alleged falls far below what can reasonably be expected of the care provider, so there is a threshold.

These specifications appear absent from Clause 17. The practical effect of the difference between the two clauses is that the threshold for an organisation is far higher than that for the individual worker. It is of particular concern for doctors because, if allegations of ill treatment or wilful neglect are made to the police, it is very likely that, in the absence of Clause 17 specifying a higher threshold, there would be very little option but to investigate.

If, as the Department of Health suggests, the aim is to prosecute only the most serious cases, the threshold in Clause 17 should indicate where the proper level of criminality lies. To achieve that, the amendment suggests that a threshold similar to that of Clause 18 is built into Clause 17. In addition to the offence applying where there is ill treatment or wilful neglect, it should be necessary for that to represent a gross breach of the care worker’s duty of care to the individual.

Let me illustrate that with a fictional scenario, although it is based on a realistic type of incident that could easily happen and could give rise to such allegations. A patient is terminally ill and becoming restless. The doctor intends to prescribe a dose of pain relief for breakthrough pain and something for the restlessness, and the family knows that. However, the doctor is suddenly called away to a young man who is in a peri-arrest situation. He was admitted as an emergency with suspected meningitis. The doctor is then called to resuscitate another patient in an adjacent bed. That resuscitation is successful, so she is there for much longer than she would have been if it had been unsuccessful. By then, the results have come back on the man who has been confirmed as having meningitis and she is involved in instigating life-saving treatment. She then rushes back to the ward to find that the terminally ill patient has died without having received the additional analgesia or drugs for agitation that she had intended to prescribe at the point at which she was called away.

The family, understandably distraught, contact the police and allege that the doctor wilfully neglected their mother. As well as the hospital inquiry and a GMC referral, the police then have to investigate the doctor for wilful neglect. If that doctor is then suspended because there is an ongoing investigation, which could take up to six months, the hospital will have to employ a locum. Even if the police conclude that the investigation is not founded and do not bring any charges, the GMC concludes that there are no grounds for referral for fitness to practise and the hospital exonerates the doctor, that doctor has been out of the workforce during the investigation. She may be so seriously damaged by having tried to do her job to the best of her ability but appearing to fail, she may well think twice about continuing in medicine. We know that that is a problem now with some young doctors who find the stresses so great that they are opting out.

Throughout England and Wales there is a prosecutorial discretion, and if a new criminal sanction of wilful neglect is introduced without any indication of the threshold at which it should apply to individual practitioners, it is worrying. I suspect that scenarios not dissimilar to the case that I have described will happen, and not infrequently. They will principally affect both doctors and nurses. If the intention is that the sanction should be applied only in the severest of cases, and I believe that that is what the Department of Health intends, that should be clear in legislation. If it is not, another unintended consequence is that it could jeopardise transparency and candour, which goes in absolutely the opposite direction to the policy intention.

There are other amendments in this group which I support and will speak to only briefly. The inclusion of volunteer work is important because there are an increasing number of doctors who have retired and who are working as volunteers with groups such as asylum seekers and refugees. In fact, they have another problem already because they do not get tax relief against their NHS pensions for this completely voluntary work, even though they have to pay their GMC registration and maintain their defence union subscription. They are quite severely out of pocket to the tune of many hundreds of pounds for what you could say was the pleasure—indeed, they do it out of vocation and for job satisfaction—of working as volunteers with these very hard-to-reach and deprived people who are in difficult situations. They are often dealing with victims of torture. These doctors are not doing easy work as volunteers.

The other amendment in this group makes it clear that the concept of clinical judgment should be included. That becomes extremely important. There is a lot of guidance now within clinical practice, but it is only that: it is guidance and not as firm as a lot of people think. It is often based on the best research evidence available, but in every case it has to be interpreted for the individual. At the end of the day, it comes down to considered clinical opinion. One would hope that every doctor weighs things carefully in the balance and comes to a considered conclusion about what they are doing, but it would be damaging to patient care if that interpretation of guidance were jeopardised and there was a formulaic approach to the management of patients by imposing a risk-averse approach. We have seen the dangers already when you end up with a protocol-driven approach rather than an interpretation of guidance. We saw disasters with the Liverpool care pathway, which was well intentioned but poorly rolled out and so forth. I hope that the Government will also accept that concept of clinical judgment. I beg to move.

[Baroness Barker (LD)]

My Lords, very rarely for me, I want to disagree with the noble Baroness, Lady Finlay. We usually bat on the same side, but not tonight. My reason for disagreeing is quite simply that these provisions in the Bill have come about because of the considerable amount of work done by my colleague Paul Burstow. He came up with these proposals in consultation with people who had been well and truly at the coalface of the investigations into Mid Staffs and Winterbourne View. They have not been drawn up lightly.

I disagree with the starting point of the case that the noble Baroness put forward. She said that these provisions will inevitably lead to hundreds of investigations of doctors. However, that will only be if there is reason to investigate. Her amendment would severely undermine the deterrent effect of this legislation. The first part of Clause 17 says:

“It is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual”.

That is a very powerful statement, and some of us are already beginning to be involved in training people within the health and social care field. We are already beginning to discuss the issues with people who run charities, asking them whether they know that this piece of legislation is coming along. It is beginning to have quite a profound effect on people about what they are supposed to do.

I have to take issue with the noble Baroness’s amendment where it goes on to add another three lines to the end of that subsection and to introduce two tests. First, it says somebody has to act,

“in a way that amounts to a serious and substantial departure from the duty owed by the care worker to the individual in all circumstances”.

I can understand that, although I am not exactly sure what it adds. However, the bit that I really find wrong is where it adds,

“and causes the avoidable death of, or serious harm to, that individual”.

One of the reasons Paul Burstow drafted his proposals as he did was the recognition that it is very rare for any health or social care provider suddenly to become a dreadfully malevolent or neglectful place. Usually, when there is bad practice, it is the accretion of pressure, slipping standards and lack of good management that bit by bit builds up to the point where people are unsafe. Part of the reason for framing this as it is was to tackle that sort of stuff, which can be devastating in its own way. We are talking not just about the physical health of people but their mental health. It was to cover that as well.

I will simply say to the noble Baroness that I understand where she is coming from and the bodies whose views she is representing to us. There is already a great deal of legislation under which members of the medical profession can find themselves the subject of an inquiry for misconduct; that really will not change. Although her amendment in particular—there are others in this group—would not fatally undermine this clause, it would put a huge dent in it and introduce a fair amount of, dare I say it, wriggle room for medical defence lawyers to get somebody off the hook. I may be wrong, and she may be proved right, but on balance what this clause does as written is to plug the gap that there has certainly been in social care, if not in the NHS, whereby front-line workers carried the can and those who were in positions of trust and oversight walked away when they should not have done. On balance, I do not accept her argument. No doubt the Minister will reply to it.

[Baroness Finlay of Llandaff]

Perhaps I might clarify. I certainly agree that mental harm is as serious as physical harm. I do not differentiate between the two. The problem is that there seems to be a different threshold between the two clauses, and I did not hear anything in what the noble Baroness said to point out that there was the same threshold between the two clauses. My concern is that, in the example I gave, the junior doctor would be the one who would take the rap. The organisation may have been disorganised and overstressed its staff and expected them to work unrealistically, but its threshold is set differently, and that is my concern.

[Baroness Barker]

That is exactly the point that Paul Burstow was trying to cover. If you back into that, I think you will find that the fears the noble Baroness is raising are addressed by looking at all of this section in totality.

[Lord Beecham]

My Lords, I will briefly mention Amendment 33, which I tabled in the light of representations from the Medical Protection Society over a range of issues. It struck me in particular that it was important to offer protection to registered medical practitioners who are exercising their clinical judgment, as opposed to other matters that they might, as it were, stray into. But where it is a matter of clinical judgment, that should surely be a defence which would displace the possibility of a prosecution for the range of offences set out in Clauses 17 to 22. I hope the Minister—I take it that it will be the noble Earl, Lord Howe, who will be dealing with this—will agree that it is important to protect clinical judgment in that way and that this amendment will be acceptable to the Government.

Criminal Justice and Courts Bill

Baroness Barker Excerpts

Monday 30th June 2014 Lords Chamber

[Baroness Barker (LD)]

My Lords, I wish to associate myself very strongly with the opening remarks of my noble friend Lord Marks in relation to this Bill. It is what I would call a “bits and pieces” Bill, or what in Lancashire would be called a “bits and bats” Bill, and as a consequence it will attract bouquets and brickbats. I shall start with a brickbat and then move on to a couple of bouquets, which I think it deserves.

The brickbat, as one might expect, relates to the clauses on judicial review. There are those in this House who can talk with far greater knowledge and eloquence on this subject than I ever could, but I want simply to bring to the attention of Members of this House the widespread fear that has been generated among charities such as Mind, whose role is in part to stick up for people who are often at the rough end of public law decision-making. They are very concerned about all the proposals on judicial review, and in particular about Clause 67. Charities with specialist expertise but not a lot of funding see it as a deliberate attempt to deter them from standing up for people who need support in cases that raise a wider public interest. We should bear that in mind as we scrutinise these clauses, as set out in the speech of the noble Lord, Lord Pannick—which was, I would say, a wonderful speech to listen to.

I want to go on to give the Government some deserved bouquets. One is for the inclusion of Clauses 17 to 22, which set out the new offence of ill-treatment or wilful neglect by social care providers. In doing so, I pay tribute to my colleagues in another place, in particular Paul Burstow and Norman Lamb. In the wake of the revelations of appalling abuses at Winterbourne View and Stafford Hospital, Paul Burstow mounted a diligent and detailed campaign to ensure that those who were to be held responsible and duly penalised should be not just the front-line staff, but those who own, govern and manage social care providers. Paul Burstow and the leading professionals involved in the review of Winterbourne View put together a detailed case analysing the law as it stood in January 2013.

There are many pieces of legislation under which an individual can be prosecuted if they are suspected of hurting or harming a vulnerable adult. These include the Offences Against the Person Act 1861, Section 39 of the Criminal Justice Act 1988 covering common assault and battery, and the Domestic Violence, Crime and Victims Act 2004. A great deal of existing legislation can be used when an individual is suspected of maltreating another individual. The trouble is that often it is not, because there is a wide degree of misunderstanding among professionals and the police as to which laws should apply.

Last year, the noble Lord, Lord Faulks, and I were part of a Select Committee of this House which was tasked with reviewing the Mental Capacity Act 2005. Section 44 of the Act states that it is an offence for any person to ill-treat or wilfully neglect someone who is covered by the Act; that is, someone who lacks mental capacity. There is a problem with that part of the legislation in that it is entirely possible for a perpetrator of abuse to mount the defence that they did not know that the person lacked capacity. Our committee saw that as a fundamental flaw in the legislation—a flaw that does not exist in the equivalent legislation in Scotland, where there is no need to determine that the person knew that the victim lacked capacity.

In their response to the committee, I am afraid that the Government said that they do not think there is any need to review that part of the legislation. I am disappointed with that. The noble Lord, Lord Faulks, left our committee because of his elevation to his current role. Would he consider that again and also write to me and make available to other professionals in the field of social care the clarification of how Section 44 of the Mental Capacity Act will sit alongside the new offence of ill-treatment or wilful neglect in this legislation?

The work that my honourable friend Paul Burstow has done shows that there are pieces of legislation that could be applied to corporate bodies. Section 91 of the Health and Social Care Act applies to corporate bodies that are found guilty of ill-treatment. The trouble is that the actions that can be taken against a body can be applied only to one person—the registered officer of that organisation. Using the Corporate Manslaughter and Corporate Homicide Act as the basis for his new proposals, Paul Burstow has established that even if there is no directing mind within an organisation, an offence has been committed by those managers who should have been responsible for the oversight of front-line staff. It is a good way of plugging a gap that has enabled managers and directors of care providers to walk away from their crimes completely unpunished while front-line staff have had to go to jail.

I move on quickly to the two remaining issues. One is malicious communications—the new,

“offence of sending letters etc with intent to cause distress or anxiety”.

As I sat and prepared this weekend, I read Clause 27. I thought that its wording was such that it could have been clattered out on a typewriter by Agatha Christie herself. Can the Minister clarify “et cetera” in this context? Some of us on these Benches remember when our former colleague Earl Russell asked the same question of a Minister. In this day and age, does et cetera mean tweets, e-mails, postings on websites? What does it mean? Those of us who are on Twitter know that a troll does not take pen to paper. A troll resorts to electronic communication. I would like the Minister to tell us the scope of these provisions. We are always running behind the internet in terms of our legislation and I would like to think that for once we could get it right. Out there are people, most of whom are women, suffering the most appalling abuse at the hands of individuals who at the moment think that they are faceless.

On revenge pornography, my friends in another place, Julian Huppert and Martin Horwood, have quite rightly said that it is time to make it clear that this is a criminal offence. Taking pictures in the context of a loving personal relationship and then putting them on public display is a particularly vicious violation of a person’s dignity. Again, a number of pieces of legislation could be used, but most predate the internet and are an obscure way of getting to the problem. We know that this is increasingly happening. Sites are putting up pictures and women are being extorted to pay large amounts of money to have the pictures removed. Blackmail and abuse such as this should not be part of the business model of any internet service provider or social media company. The Obscene Publications Act 1959 or the Protection of Children Act could help—but not enough and not swiftly enough. It is time to make this a criminal act and require search engines and social media companies to withdraw such material on request. We must make sure, above all, that the police are trained and equipped to see this for what it is—a horrible, horrible criminal act.