Prosecuted and convicted – how would you manage a criminal investigation? - Elderly care...

Criminal and regulatory liabilities Elderly care conference 2015 – Andy Hopkin

Prosecuted and convicted – how

would you manage a criminal

investigation

Andy Hopkin, Browne Jacobson LLP

Outline

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•

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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? •

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

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 •

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

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

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


• 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


• 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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–


• 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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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 –

http://www.hse.gov.uk









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

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

•

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 –

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.

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

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•

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

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

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 •

The team

T: 0115 976 6030 T: 0121 237 4584 M: 07879885221 M: 07747616842 E: [email protected] E: [email protected]

T: 01392 458731 T: 01392 458770

M: 07810881242 M: 07909883246

E: [email protected] E: [email protected]

mailto:[email protected]









































































The team T: 0115 908 4113

M: 07810875501 E: [email protected] T: 0115 934 2024

M: 07881209652 E: [email protected]

T: 0121 237 3953 M: 07787431100 E: [email protected]




T: 0115 976 6243 E: [email protected]




























































































































Prosecuted and convicted – how would you manage a criminal investigation? - Elderly care...

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Transcript of Prosecuted and convicted – how would you manage a criminal investigation? - Elderly care...