Developmental steps in building a toolkit to challenge
wilful neglect and ill-treatment
under the Mental Capacity Act
Jill Manthorpe and Kritika Samsi, Social Care Workforce Research Unit, King’s College London
Example: Care home nurse conviction for
neglect under Mental Capacity Act
makes legal history
Ill-treatment & wilful neglect under
Mental Capacity Act 2005
•Section 44 defines “ill-treatment” and “wilful neglect” occurring in a
relationship of trust with person lacking capacity
•Covers professionals and family carers
•The offender indulges in behaviour believing the person lacks capacity
•Both offences include serious departure from required standards of treatment
that they were aware they were under duty to perform
•If reported and prosecuted, penalty for criminal offences may be fine and/or a
prison sentence for up to five years
What’s new?
•Applies to professionals, plus family and friends
•Does not rely on victim’s evidence (hard to get) or complaint
•Criminal convinction of “ill-treatment” and “neglect” can prevent reemployment in the health and care sector
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EviDEM
www.evidem.org.uk
Ms Ramona Dublas, aged 41, was found guilty of taking a photo of a 92-year-old
semi-naked woman after being convicted of ill-treatment and wilful neglect under
section 44 of the 2005 Act. Inner London Crown Court heard that Dublas worked
as a nurse at the private X Nursing Centre. A member of staff at XX Council's
Safeguarding Team, which helps vulnerable adults, became aware a photo was in
circulation of one of the residents. She managed to obtain a copy and the picture
showed the elderly dementia sufferer being held up by her wrists and naked from
the waist up. In court Dublas claimed she wanted to take the photo to show the
woman was "happy". The resident died three weeks later, although this was not
related to the offence.
Dublas was sentenced to nine months' imprisonment, suspended for a year, 200
hours community service and banned from working with children and vulnerable
adults in the future.
http://cms.met.police.uk/news/convictions/nurse_conviction_makes_legal_history
Our research
•EviDEM study: funded by National Institute for Health Research
•Exploring practitioners’ experiences, knowledge & expectations of the Mental Capacity Act
•End date: mid 2012
Participants (N=115)
Findings 1: What do practitioners know about the new
offences?
•Basic, rather than specific, concepts understood
•Fuzzy understandings of definitions of ‘wilful neglect’ and ‘ill-treatment’
•Some, but not all, fairly knowledgeable
•Thresholds (when is it wilful?) not clear
•Uncertain how to collect evidence
Difficult to sometimes differentiate between those two, I am
sure there will be clear legal definitions which separates
them but they are very similar you know it’s – no there is a
difference. Wilful neglect is where somebody doesn’t do
something, and ill-treatment is where they do something
that they shouldn’t, so giving people the wrong medication,
erm, injuring somebody when they don’t follow handling
procedures that type of thing.
[Safeguarding Adult Coordinator]
Questions raised by participant
interviews
Offences not known
Confusion over specifics – what is
wilful?
Lack of confidence
No major source of authoritative
detail or guidance
Could be addressed by
Basic information
Definitions, with examples or
stories
Stories, Frequently-AskedQuestions, Step-by-step guide
Frequently-Asked-Questions,
definitions, sources of general and
specialist support
Specialist
dementia
nurses = 15
(+15)
Adult
safeguarding
coordinators =
13 (+12 +15)
Social
workers
= 10 (+9)
Age Concern
= 10
Alzheimer’s
Society staff = 9
Carers’ groups &
other voluntary
associations = 15
Care home
workers &
managers =
43
Findings 2: Developing an Educational Prescription
•To cover:
•Knowledge of the Act
•Ways of working with the Police
•Tailor information to context and role
•Stories and case studies helpful
•Make product appropriate to setting, e.g. posters for care homes,
details on websites for older people, pamphlets in GP surgeries,
information sheets for advisers…
•Results of a nominal group discussion of practitioners, including
policewoman, Adult Safeguarding Lead, former carer, day centre
worker and GP trainers
This report/article presents independent research commissioned by the National Institute for Health Research (NIHR) under its Programme Grants for Applied Research scheme (RP-PG0606-1005). The views expressed in this publication are those of the author(s) and not necessarily those of the NHS, the NIHR or the Department of Health.
For further information, please contact: Jill Manthorpe (jill.manthorpe@kcl.ac.uk) or Kritika Samsi (kritika.1.samsi@kcl.ac.uk) .