My Lords, I speak in support of Amendment 92A, which stands in my name and that of the noble Baroness, Lady Greengross. The amendment concerns corporate responsibility for neglect. In speaking to this amendment, I acknowledge that the Bill introduces England’s first primary legislation to protect adults at risk of abuse and neglect. Similar legislation is in place in Scotland, and is in the process of being enacted in Wales.
The Bill as it stands places a duty on local authorities to investigate abuse or neglect, and introduces statutory requirements around safeguarding adults boards and safeguarding adults reviews. Substantive regulations on assessment and eligibility, published as secondary legislation, should also make provision to consider whether the person is at risk of abuse or neglect, and if this risk is sufficient to provide support.
I welcome the Government’s decision and the publication of a consultation on how to ensure that the directors of organisations are personally held to account. This may provide some redress, which our amendment seeks to secure. Given that this consultation closes in September, when the Minister responds to the amendment perhaps she could give some indication of when, in the latter stages of the Bill, the Government might decide whether they will enact some of these changes. The Government’s own consultation document acknowledges that there is a loophole in the system, allowing providers responsible for appalling failures in care to escape prosecution. This is what our amendment seeks to address. I am grateful to the noble Earl, Lord Howe, for writing to me about the Government’s consultation.
In south Wales, Operation Jasmine uncovered appalling treatment of older people in residential care. The police investigation into neglect of old people in care homes lasted more than seven years, and cost more than £11 million. Over 100 potential elderly victims were indentified; 75 police officers were involved in the inquiry, and more than 4,000 statements were taken. Yet the nursing home owner, a local GP, suffered brain damage during a violent burglary at his home in September 2012, and in March the court case against him, his company’s chief executive and their company collapsed. I understand that the company is still operating some care homes.
When I served in the other place, I saw for myself some terrible photographs of elderly people who had been neglected, and who had what I can only describe as holes in their bodies where bedsores had been left untreated. A number of people died, and the Commissioner for Older People in Wales, Sarah Rochira, said:
“I don't really know any other way of describing it other than a catalogue of failure”.
Detectives were unable to bring prosecutions for serious offences such as manslaughter and wilful neglect. The then-deputy chief constable of Gwent, Jeff Farrar, said:
“Where you are seeing people who have got pressure sores which are corroded down to the bone; people vomiting faeces they are so constipated; or so dehydrated, it is a significant cause of their death”.
Those responsible for this terrible degree of neglect should be brought to justice. At the moment they cannot be, and that is why we need an amendment of this sort. The Care Quality Commission’s report on Winterbourne View care home and the Equality and Human Rights Commission’s inquiry into home care also uncovered serious, systematic threats to the basic human rights of those receiving care services.
Amendment 92A seeks to strengthen protection by ensuring that registered providers of health and social care have duties, similar to those placed on local authorities, to report suspected abuse and to inform the safeguarding adults boards. Then, crucially, if abuse is found to have an element of corporate responsibility, where the systems or approaches taken by the care provider were a contributory factor in the abuse or neglect, a new offence is created, allowing prosecution of a registered care provider. This does not undermine the individual responsibility of staff
members or the registered care provider, but would add corporate responsibility where a culture of neglect or abuse has been allowed to flourish.
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The existing body of domestic legislation protects vulnerable adults from neglect or abuse, and contains criminal penalties against individuals. It is also the case that in civil law a corporate body can be held responsible for such events. However, when such abuse or neglect is attributable to the practices and procedures of a company, there are no active criminal sanctions in place in domestic law. If it were possible to amend the Care Bill to mirror the regulations set out within the Corporate Manslaughter and Corporate Homicide Act 2007 within a care situation, it would be possible to hold corporations criminally responsible for their actions. As things stand, if there were another Winterbourne View or Operation Jasmine, there is no criminal sanction to hold a corporate body to account for enabling or fostering abuse in a care setting.
In conclusion, I point out that the Joint Select Committee on the Bill said:
“We recommend that where abuse or neglect of an adult has resulted in the commission of an offence by an employee of a body corporate acting as such, and this is proved to have been committed with the consent of, or to have been attributable to any neglect on the part of, a director, manager or similar officer of the body corporate acting as such, he as well as the body corporate should be guilty of an offence”.
I hope that the Government’s consultation will show that we need to make progress on this issue. I certainly hope that at the end of the day the Government will see some merit in this amendment, and agree to amend the Bill.