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Care, Regulation and the Criminal Law

Nick Kempe – 10th March 2022

The Herald reported on Sunday that the Crown Office is now investigating  4,988 deaths from Covid-19, including  3904 care home residents and 37 care workers, and that employers could now face charges under the Corporate Manslaughter and Corporate Homicide Act 2007.  However, the special unit set up to investigate the deaths has just 18 staff, which means each one is responsible for working with the police and health and safety executive to investigate over 250 deaths.  With that level of resource, the chance of anyone being prosecuted is likely to be incredibly low.

That did not stop Scottish Care, the organisation that represents care home providers, complaining that the investigation “had put further strain on the sector” and created “exhaustion, dismay and disappointment about staff”.  This was an attempt to deflect people’s understanding of the investigation.  It is not staff who are being investigated but providers. And it is in the interests of care staff that those employers who had cut qualified nurses to the bone, failed to provide PPE, failed to train them properly and left them unsupported at the height of the crisis are held to account.  

Providers have reasons to fear health and safety law.  It is very powerful and has the potential to get to the heart of what is wrong with our current care system if only it was properly resourced.  In January the Health and Safety Executive (HSE) announced that HC-One, Scotland’s largest care home provider, had been fined £640,000 after a resident at Orchard CareCentre, Tullibody, had choked to death on a jam doughnut. The victim, who had had a stroke, had been assessed as needing their food mashed but HSE “found that staff who gave out snacks at Orchard Care Home had not been properly trained and did not have awareness of food that was suitable for each diet. They regularly gave this resident food which was not suitable for her diet, in breach of their own risk assessment.” Instead of blaming staff, however, HSE pursued HC-One as the employer. 

HSE’s approach is very different to the one taken by Scotland’s care regulators, the Care Inspectorate and Scottish Social Services Council.  

As Common Weal pointed out in “Caring for All”, the Care Inspectorate inspects services, not employers. In doing so, its staff have almost no power to investigate whether services are properly resourced, staff have had the right training or are supported in their work.  Instead, the focus of inspections has been on driving staff in individual services to “improve”, to do ever more with less.  This “system” lets providers off the hook.

This approach often gives a very misleading picture of services as care staff cover-up and compensate for their employers’ failings, making it appear that services are improving when in fact they are close to collapse.  In May 2019, just three months before the resident had choked to death,  the Care Inspectorate had inspected the Orchard Care Centre, rated it as Very Good and noted in their Inspection Report that “there is good attention to detail within people’s care plans, and staff are knowledgeable about people’s health needs”.  That clearly doesn’t fit with HSE’s finding that staff were not properly trained and given HC-One pled guilty in court that tells you who to believe.  

The Scottish Social Services Council (SSSC) is responsible for regulating the social care workforce and conducts hundreds of investigations each year into whether staff have abided by their Code of Practice.  While there is also a Code of Practice for Employers, SSSC lacks the power to investigate them.  This skews the whole of their work, with staff often being held responsible for failings which stem from the failure of their employers.  But the converse of this is that the SSSC tends to avoid investigating incidents involving staff where problems clearly result from the failings of their employer.  What could the  SSSC have done if they had investigated the staff at Orchard Care Centre who had mistakenly given the care home resident the doughtnut?  

There is a very important point about care at stake here.  Most staff involved in such needless tragedies will be as devastated by what happened as relatives and many will be feeling guilty for what went wrong during Covid when it was not their fault they were so inadequately prepared.  The HSE investigation, if it does result in employers being found responsible should make them feel better personally about things that went wrong.  It should also raise the morale of care staff as a whole rather than undermine it as Scottish Care claims. 

The Crown Office investigation is so important precisely because it does target employers, not staff like the rest of the regulatory system.  We need to learn from that but Common Weal believes the solution is not to create a stronger system of regulation but rather to abolish  private sector social care provision so that profit can never again be put before care.  We then need to re-think the purpose of regulation, something that the Scottish Government has completely failed too do so far in the proposals it has developed for a National Care Service.  Whatever that might look like, HSE would still have a vital role in ensuring that managers in the public and voluntary sector put the health and safety of people receiving care services and the staff who work in them first.

1 thought on “Care, Regulation and the Criminal Law”

  1. Very useful article. I agree we need to look critically at the whole culture of inspection and regulation. It need a theoretical framework, a historic developmental narrative (which will show the pact between privatisation, deregulation and then ‘inspection’ and then needs some examples of the methodologies that regulators actually use. Which will show the distortions and limitations in the empirical data they have at their disposal and the things that they do not look at as ~NK rightly shows. Keep up the good work in the Care Reform group.

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