Neglect is a criminal offence linked to the concept of the ‘duty of care’. In fact it is impossible to convict a person of neglect unless they did indeed have a duty of care toward the person whose needs have been neglected.
To make sense of this just imagine how ridiculous it would be to prosecute some random stranger whenever a person’s care needs are neglected. The stranger is not guilty of neglect because the neglect had nothing to do with them. They were not expected to deliver the care in the first place.
Neglect then is the failure to fulfil one’s duty of care.
What then do we mean by ‘duty of care’?
In every job there are specific duties and responsibilities that need to be met. These vary depending upon the job itself but most people are clear about what their responsibilities are. However in terms of safeguarding there are a number of less obvious meanings of the word ‘neglect’.
For example the Protection of Vulnerable Groups Act 2006 and the Adult Support & Protection (Scotland) Act 2007 both reiterate the long-standing duty all health and social care workers have to report abuse. This means that if we are aware of abuse, perhaps by a colleague, and do nothing we also will be guilty of neglect. Employers who fail to deal appropriately with allegations of abuse among their workforce are also guilty of abuse and could face criminal prosecution.
This may seem hard but it is a necessary part of health and social care work for several reasons.
Bullies are attracted to work involving vulnerable adults;
Care staff are often the only people in a position to spot abuse;
Service-users are often dependent upon us for their safety.
When I make this point during training sessions people often object on the grounds that the alerter (the person reporting abuse) may themselves face problems with the rest of their colleagues if they ‘rock the boat’. This is true and I’m not about to pretend that it’s easy to be the alerter. However I would like to make the following points:
The law is what it is and it won’t change just because we might not like it;
Being unpopular for a while is not so bad as prosecution, conviction and a ban from working in social care because we didn’t report what we saw.
It’s also important to realise that there are two distinct roles in adult protection. One is ‘alerter’ and the other ‘investigator’. The alerter is not – indeed cannot be the investigator except in extreme circumstances.
This means that the alerter does not need evidence to report their concerns. Gathering evidence is the job of the investigator. If you have a suspicion, even if you have no proof, your duty is to report it, nothing more. If you wait until you have proof the abuse may go unreported for months or even years. This is not in the best interests of the service-user. In any case, most alerters are not in any position to investigate – that needs management authority or even police powers on occasion. Don’t wait for something you might never get.
You must not discuss your concerns with the alleged abuser. If you do you may increase the risk to the service-user and also interfere with what may become a police investigation. Simply report your concerns and then ‘walk away’ unless you are given a specific task to perform by your manager. This is as much a part of your duty of care as any other element of your work so failing to comply means neglect just as surely as failing to feed, clothe or care for those in our care who need it.
Some acts of parliament such as the Mental Capacity Act 2005 (itself another ‘layer’ of safeguarding for those who lack capacity) create and define their own offence of ‘wilful’ neglect. This is the offence of failing to learn about or comply with the law as it relates to our work. For example since April 1st 2007 it has been an offence to assume a person lacks the capacity to make their own decisions without first helping them to decide. This is just one of many examples where practice has had to change in recent years to avoid ‘wilful neglect’.
Another is the duty of care we all have as care workers to assess a person’s mental capacity before performing care tasks. Failure to do so could result in up to five years imprisonment depending upon the circumstances and the seriousness of the situation. That’s why all members of care staff are expected to understand how to assess mental capacity from the nurse or doctor to the support worker and care assistant.
The law changes. Practice must change too.
If you still do what you did 5 years ago you may be breaking the law.
About the Safeguarding series
This blog series first appeared on Stuart’s personal blog early in 2010. It has been reposted here as part of a process of ‘rationalisation’ in which work from several blogs has been removed and reposted on only two.