Key offences

Offence of defrauding someone you are expected to safeguard

Anyone responsible for safeguarding the financial interests of another person, or to not act against their interests, must not dishonestly abuse that position.

In this context, abuse means to:

• intentionally gain (or help someone else gain) from exploiting another’s financial interests
• cause or expose another to financial loss (through omission or intention).

Reference: Section 4 of the Fraud Act 2006

In 2009, the offence described above was used to prosecute a care home worker who was misusing residents’ bank accounts.

Reference: R v Marshall [2009] EWCA Crim 2076

Offence of ill treatment or wilful neglect of someone without capacity

If you care for someone who lacks mental capacity, or are the appointed deputy or ‘donee’ of a lasting power of attorney for them, it’s an offence to ill-treat or wilfully neglect that person.

Reference: Section 44 of the Mental Capacity Act 2005

The question of whether or not someone has been neglected has to be examined against the principle that a person’s autonomy should, to the greatest extent possible, be respected.

Adults in care who have mental capacity to make their own decisions are entitled to protection from wilful neglect which affects an area of their life over which they may lack capacity.

Reference: Paragraph 18, R v Nursing [2012] EWCA Crim 2521

Carelessness or negligence are not the same as wilful neglect. ‘Wilful’ neglect means something more than a reckless breach of duty. For example, simply failing to do what a careful and competent practitioner would do is not ‘wilful neglect’.

Reference: R v Turbill [2013] EWCA Crim 1422

Offence of paid care workers ill-treating or neglecting someone they provide social care to

It’s an offence for a care worker to ill-treat or wilfully neglect someone they are paid to care for.

This applies to someone who’s paid to provide health care for an adult or child, or social care for an adult. It also includes people who are paid to supervise or manage others providing such care, as well as people who are directors or hold similar positions in organisations that provide these forms of care.

This does not include unpaid family carers, friends and volunteers (even where they receive reimbursement of travel costs).

Reference: Section 20 of the Criminal Justice and Courts Act 2015

Offence of a care provider for a breach of their duty of care to individuals receiving care

A care provider commits an offence if:

• someone they engage to provide care ill-treats or wilfully neglects someone in their care;
• the care provider is in breach of their duty to those in their care as a result of the way they manage of organise their activities; and
• if that breach had not occurred, the ill-treatment or wilful neglect would not have happened, or would have been less likely to happen.

In this context, a ‘care provider’ could be a corporate body or unincorporated association that provides, or arranges the provision of, health care or adult social care. It could also be an individual who provides, commissions, or works with others to provide such care. An individual is part of a care provider’s arrangements where they provide the care or where they supervise or manage others providing the care.

Reference: Section 21 of the Criminal Justice and Courts Act 2015

Offence of ill-treatment or neglect of someone receiving treatment for a mental disorder

It’s an offence for hospital or care home staff to ill-treat or wilfully to neglect:

• a patient receiving treatment for a mental disorder (as an in-patient or an out-patient)
• someone who is under their guardianship or custody or care.

Reference: Section 127 of the Mental Health Act 1983

Sexual offences with someone with a mental disorder impeding choice

There are a range of offences which protect people with a ‘mental disorder’. The Mental Health Act 1983 defines a mental disorder as “any disorder or disability of the mind”. A person with a learning disability can also fall within this definition if they’re subject to abnormally aggressive or seriously irresponsible conduct.

Offences include:

• sexual activity with a person with a mental disorder impeding choice
• causing or inciting a person, with a mental disorder impeding choice, to engage in sexual activity or to watch a sexual act
• engaging in sexual activity in the presence of a person with a mental disorder impeding choice.

Similar offences apply if the activity is a result of inducement, threat or deception.

Reference: Sections 30–37 of the Sexual Offences Act 2003 (and section 1 Mental Health Act 1983 as amended)

Sexual offences of those involved in care

There are a range of offences for care workers engaging in sexual activity with someone who has a mental disorder. This includes causing or inciting sexual activity with that individual, conducting a sexual activity in their presence, or causing them to watch.

This includes care workers who have brought, or are likely to have brought, adults with a mental disorder into regular face-to-face contact with the perpetrator. This includes care in settings such as care homes, community homes, voluntary homes and children’s homes.

These offences are applicable where the defendant knew, or could have reasonably been expected to know, that the individual concerned had a mental disorder.

Reference: Sections 38–44, Sexual Offences Act 2003