Andy Hopkin gives a talk at Browne Jacobson's elderly care conference 2015.

1. Criminal and regulatory liabilities
Elderly care conference 2015 – Andy Hopkin

2. Prosecuted and convicted – how
would you manage a criminal
investigation
Andy Hopkin, Browne Jacobson LLP

3. Outline
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exploring individual / corporate criminal liability
the tools for managing a criminal investigation
what precautionary measures can you put in place
now?
new criminal offences post Francis?•

4. Why does it matter?
• consequences of criminal investigation
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lengthy civil or criminal litigation-
notices
Fee For Intervention (FFI)
prosecution – fine, costs, prison
reputational damage
impact on tenders / opportunities
increase in premiums
higher penalties
five years +
for work

5. Corporate criminal liability
• Manslaughter and Corporate Manslaughter –
police
Health and Safety Legislation – HSE / local
authorities
Regulatory Reform Fire Safety Order 2005 –
authorities
the
•
• fire
• Environment Agency, Food Standards Agency,
environmental health departments
Care Quality Commission•

6. Individual criminal liability
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•
manslaughter
Section 7 HSWA 1974
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duty of employees
take reasonable care for themselves and others
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misfeasance in public office
bespoke offences – assault, neglect,
standards
fundamental

7. Individual / corporate criminal liability
• Section 37
– “where an offence under any of the relevant statutory
provisions committed by a body corporate is proved to have
been committed within the consent or connivance
have been attributable to any neglect on the part
manager, secretary or other similar officer of the
corporate…”
of, or to
of any
body
•
•
director / manager offences under other legislation
employee offences under other legislation

8. Managing a criminal investigation
• who might be involved
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police (fatal)
HSE / CQC / LA
Coroner (fatal)
claimants
insurers
third parties i.e. press / FOI
internal investigations
professional bodies
disciplinary investigation
serious case review

9. Managing a criminal investigation
• early steps
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RIDDOR
entry of premises seizure of
documents compulsory
powers – Section arrest
interview under caution
managed co-operation
20 HSWA 1974

10. Managing a criminal investigation
• immediate practical steps
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act quickly
identify inspector and supervisor
appoint suitable person within organisation to liaise
log all documents submitted to the regulator
support / inform and expect vice versa from staff – subject
conflict
set up proper information sharing in your organisation
take legal advice – NB conflict
notify insurers
to
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11. Managing a criminal investigation
• internal investigation
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author
recipients
draft
legal privilege
prepare of the
contemplation
methods
purposes of legal advice and in
of litigation
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12. Precautionary measures
• protocol for accident or incident
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have plan in position
ensure continuity and manage expectation
list sources of legal / expert advice
inform those involved of roles / powers
• be aware of guidance
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enhanced HSG65
health and safety guidance applicable to operation of the
organisation. Leading health and safety at work: leadership
actions for directors and board members
HSE website - http://www.hse.gov.uk–

13. Precautionary measures
• other measures – evidence of compliance
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rewards and sanctions
dissemination of information
database review
solid inductions
competent health and safety
audits via third party
– email / updates
advisors

14. Post Francis
• new criminal offences for ill-treatment or wilful
neglect of adults with full capacity at the hands of
those entrusted with their care
Criminal Justice and Courts Act 2015 received royal
assent on 12 February 2015 and came into force on
13 April 2015
•

15. Post Francis
• S.20 ill-treatment or willful neglect: care worker
offence
– (1) it is an offence for an individual who has the care of
another individual by virtue of being a care worker to ill-treat
or wilfully to neglect that individual
• sentence
– Magistrates’ Court – 12 months imprisonment and/or unlimited
fine
Crown Court – five years imprisonment and/or unlimited fine–

16. Post Francis
Care worker means an individual who, as paid work, provides health care for an
adult or child, other than excluded health care, or social care for an adult, including
an individual who, as paid work, supervises or manages individuals providing such
care or is a director or similar officer of an organisation which provides such care.
Health care includes all forms of health care provided for individuals, including
health care relating to physical health or mental health and health care provided for
or in connection with the protection or improvement of public health, and
procedures that are similar to forms of medical or surgical care but are not provided
in connection with a medical condition.
Social care includes all forms of personal care and other practical assistance
provided for individuals who are in need of such care or assistance by reason of age,
illness, disability, pregnancy, childbirth, dependence on alcohol or drugs or any other
similar circumstances.

17. Post Francis
Excluded health care
• (a) health care provided on the premises of an educational
listed in paragraph three, subject to sub-paragraph (2)
(b) health care provided at accommodation provided by an
institution listed in paragraph three for an individual being
institution
• educational
educated at
the institution, other than accommodation provided in connection with
a residential trip away from the institution
(c) health care provided at a children’s home or a residential family
centre in respect of which a person is registered under Part 2 of the
Care Standards Act 2000
(d) health care provided on a part of other premises at a time when
the part is being used entirely or mainly for an education or childcare
purpose
•
•

18. Post Francis
• S.21 ill-treatment or willful neglect: care provider
offence
– (1) a care provider commits an offence if
 (a) an individual who has the care of another individual by virtue of being part of the care provider's
arrangements ill-treats or wilfully neglects that individual
 (b) the care provider's activities are managed or organised in a way which amounts to a gross breach
of a relevant duty of care owed by the care provider to the individual who is ill-treated or
neglected, and
 (c) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or
would have been less likely to occur
• sentence
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unlimited fine – both Magistrates’ Court and Crown Court
remedial order
publicity order

19. Post Francis
Care provider means
• (a) a body corporate or unincorporated association which provides or
arranges for the provision of
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(b)
(i) health care for an adult or child, other than excluded health care, or
(ii) social care for an adult, or
an individual who provides such care and employs, or has otherwise•
made arrangements with, other persons to assist him or her in
providing such care

20. Key points
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be informed
act swiftly to avoid prejudice
early legal advice
be prepared for conflict and have a plan to manage
internally
be prepared for each stage•

21. The team
T: 0115 976 6030 T: 0121 237 4584
M: 07879885221 M: 07747616842
E: andrew.hopkin@brownejacobson.com E: rachel.lyne@brownejacobson.com
T: 01392 458731
T: 01392 458770
M: 07810881242
M: 07909883246
E: nigel.lyons@brownejacobson.com
E: dale.collins@brownejacobson.com

22. The team
T: 0115 908 4113
M: 07810875501
E: steph.coates@brownejacobson.com T: 0115 934 2024
M: 07881209652
E: carl.may-smith@brownejacobson.com
T: 0121 237 3953
M: 07787431100
E: andy.lee@brownejacobson.com
T: 0115 976 6524
M: 07990686189
E: emma.cragg@brownejacobson.com
T: 0115 976 6560
M: 07810870883
E: anna.fellows@brownejacobson.com
T: 0115 976 6013
M: 07826916741
E: laura.hackney@brownejacobson.com
T: 0115 976 6243
E: sanchia.miller@brownejacobson.com