By Jonathan Grimes (Partner) and Sophie Wood (Senior Associate, Barrister) in the Criminal Litigation team at law firm Kingsley Napley LLP (www.kingsleynapley.co.uk)
In late February 2021 it was reported that a care home worker had been arrested on suspicion of gross negligence manslaughter after a patient died of COVID-19. Then in March, two further care home workers were arrested on suspicion of wilful neglect following a COVID outbreak at a care home in Sidmouth, Devon.
Should those working in care homes be concerned about criminal liability in respect of COVID-19 cases and on what basis can care home workers be prosecuted for incidents involving COVID-19?
THE APPLICABLE LEGISLATION
There are three separate offences which may be relevant to such a situation.
1) Under section 7 of the Health and Safety at Work etc. Act 1974 (“HSWA”) care home staff are required to take reasonable care for the health and safety of others who may be affected by their acts or omissions. Failure to do so is an offence punishable up to two years’ imprisonment.
2) If a resident dies, in rare circumstances a care home worker may face prosecution for ‘gross negligence manslaughter’. This may arise where the death is considered to have resulted from a breach of the worker’s duty of care towards the deceased. The worker will only be liable if they breached that duty of care through a negligent act or omission; at the time of the breach there was a serious and obvious risk of death, which was reasonably foreseeable; and the negligence, which caused or significantly contributed towards the death, was so bad that it amounted to gross negligence and therefore requires criminal sanction.
3) Following the Mid Staffordshire Inquiry, new legislation was enacted making it an offence for care workers to ‘ill-treat or wilfully neglect’ an individual in their care (section 20 of the Criminal Justice and Courts Act 2015). ‘Wilful neglect’ means deliberately neglecting to do something which should be done in the treatment of a patient. It is no defence for a worker to argue that even if they had administered the treatment, it would have made no difference to the patient’s health. ‘Ill-treatment’ means deliberate conduct which can be described as ill-treatment (irrespective of whether it actually damaged, or threatened to damage the health of the patient). The worker needs to appreciate that they were ill-treating the patient, or to have been reckless as to whether they were acting in that way. If found guilty, a person can be sentenced up to five years’ imprisonment.
ARE WE GOING TO SEE MORE ARRESTS OF CARE HOME WORKERS RELATING TO COVID-19?
Potentially yes. At the beginning of the pandemic the understanding of how COVID-19 was transmitted and what could be done to protect residents was limited. One year on however, there is a better, albeit not perfect, awareness of how staff can help safeguard against outbreaks and deaths. For example, if a care home worker recognises a number of now-known signs of COVID-19, and fails to call a doctor, they could be accused of wilful neglect. Equally if that worker, after recognising the symptoms, fails to isolate that patient, they could be accused of a section 7 HSWA offence.
Due to this improved understanding of the disease, it will increasingly be possible to measure behaviour against a common standard. It will be easier to establish what was reasonable for the care worker to be doing at the time and/or demonstrate a causal link between the acts or omissions of the worker and the illness/death.
The arrests so far indicate that law enforcement no longer sees COVID-19 as a novel disease about which the risks are not fully under- stood. They suggest there is a confidence about what standards care home staff should be meeting when managing COVID-19, and where those standards are thought not to have been met, allowing an assessment of where criminal liability comes into play. Therefore irrespective of whether these arrests lead to successful prosecutions, they indicate a change in approach by law enforcement and so care home staff and their employer organisations should expect more enforcement action in this area in the future.