Thank you for the opportunity to provide comment on the consultation on the new offence of ill-treatment or wilful neglect.

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1 3 April 2014 Ill-treatment or Wilful Neglect Consultation c/o Mia Snook Room 2E11 Quarry House Leeds West Yorkshire LS2 7UE Dear Ms Snook Thank you for the opportunity to provide comment on the consultation on the new offence of ill-treatment or wilful neglect. The GMC is the independent regulator for doctors in the UK. Our role is to protect patients by ensuring proper standards in the practice of medicine. In short, our job is to make sure that patients can have confidence in doctors. We do this by: controlling entry to and maintaining the list of registered and licensed doctors setting standards for all stages of medical education and training and ensuring that those standards are met determining the principles and values that underpin Good Medical Practice taking firm but fair action against doctors registration where the standards we set have not been met. Our guidance, Good Medical Practice, places doctors under a professional duty to provide appropriate care. Our Indicative Sanctions Guidance, which outlines the factors which fitness to practise panels take into account when deciding what action is appropriate to deal with concerns, is clear about the consequences of not providing appropriate care. Where a doctor s behaviour involves a particularly serious departure from the principles set out in Good Medical Practice or deliberate serious harm to patients, these factors strongly indicate that erasure may be appropriate. Should parliament see the need for a new criminal offence, this is of course within the Government s purview to introduce. The scope and elements of the proposed criminal offence are consistent with the principles and guidance which we expect all doctors to follow. In the appended document, I have set out the questions outlined in the consultation and the specific comments we wish to make. 1

2 Should the government s proposals be taken forward, it is likely that the introduction of a new criminal offence will have implications for the GMC as a regulator. Due to the serious nature of a new offence of ill-treatment or wilful neglect, we would expect that any doctor subject to a relevant police investigation would be referred to our fitness to practise procedures to consider their suitability to continue working as a doctor. Indeed we are seeking new powers to enable us to strike off any doctor convicted of a very serious offence without the need for a panel hearing if this offence is categorised with the most serious crimes, it is possible that any doctor convicted of wilful neglect would fall into that group. Should you have any questions about any of the elements of this response or wish to discuss further, please do not hesitate to contact me directly. Yours sincerely Paul Buckley Director of Strategy and Communication pbuckley@gmc-uk.org Telephone:

3 GMC Response: Department of Health consultation on new offence of illtreatment or wilful neglect We propose that the new offence should apply in all formal adult health and social care settings, in both the public and private sectors. Do you agree with this approach? Please explain your view. If introduced we agree that the offence should be applied consistently across the health care sector. We set standards that apply to doctors equally regardless of their practice environment. To create different standards of care in public and private sectors would be unjust. Should the new offence apply in all formal health settings in both the public and private sector used by children (including services used by both children and adults)? Please explain your view. The scope and elements of a new criminal offence of wilful neglect are consistent with the principles and guidance we set out for all doctors, regardless of whether they are treating an adult or child. With this in mind, we view that if introduced the offence should apply equally and consistently regardless of the age of the patient. Should the new offence apply in any other settings used by children (including services used by both children and adults)? Please explain your view and what sorts of services you believe should or should not be included. The offence should apply equally in any formal care setting, including social care settings. Irregular application of the offence would be confusing and arguably unjust. We propose that only formal health and social care arrangements, as described above, should be within scope of this offence. Do you agree with this approach? Please explain your view. Where there is no formal arrangement, it is difficult to determine specific obligations or codes of conduct as would be the case for medical professionals. The offence should apply only to formal care settings, as defined in the consultation, both for children and adults. Additionally, mistreatment or abuse in informal arrangements seems adequately covered under existing legislation. We believe the same principle, set out in relation to the previous question should also apply for adults. 3

4 We propose that the new criminal offence should focus entirely on the conduct of the provider/practitioner, rather than any consideration of the harm caused to the victim of the offence. Do you agree with this approach? Please explain your view. This is consistent with and will reinforce the principles and guidance set out in Good Medical Practice, which we expect all doctors to be familiar with and follow. Our guidance states that when responding to risks of safety, doctors must take prompt action if they think that patient safety, dignity or comfort may be seriously compromised, regardless of any consideration of harm. The guidance also states that where a doctor witnesses a patient not receiving basic care to meet their needs, they should tell someone who is in a position to act straight way. Good Medical Practice also states that doctors must consider the needs and welfare of all patients, adults, children and young people and help if they think a patient s rights have been abused or denied. Another element of our guidance is that all doctors must act with honesty and integrity and when establishing partnerships with patients, doctors must treat them as individuals and respect their dignity and privacy. The new criminal offence seems to reinforce these aspects of our guidance. It is also important to emphasise that we believe the individual offence should strictly apply to instances of wilful neglect or ill-treatment. Where professionals have acted appropriately and reported failings, they should not then be prosecuted for subsequent failings at board or organisation level. To our reading this is the intention of the offence, but it will be important implementation remains true to this intention. Do you agree that an approach based on the way in which an organisation managed or organised its activities is the best, most effective way to establish the offence in respect of organisations? Please explain your view. We have no specific comment on the offence in relation to organisations. However, we believe it is beneficial when individuals and organisations have complementary duties, which naturally become mutually supportive. We propose that penalties for individuals convicted of this offence should mirror those set out in section 44 of the Mental Capacity Act Do you agree? Please explain your view. It could be viewed that the lack of an offence in relation to wilful neglect beyond the Mental Capacity Act 2005 is a lacuna and we support this as a move toward greater consistency. Do you agree with our proposals in relation to penalties in respect of organisations? Do you think there are other penalties which would be appropriate? No comment. 4

5 We propose adopting the same approach to referral of private prosecutions to the DPP as is available in respect of the section 44 offence in the Mental Capacity Act Do you agree? Are there other ways to address this issue? No comment. 5