What is 'wilful neglect'?
There will be lots of debate about whether the proposed new offence of wilful neglect will be a good thing or not, but the first question must be - what is "wilful neglect"?
Ultimately the courts will be interpreting the meaning of the statute, but if the statutory draughtsmen do their job we should have a reasonably clear idea exactly what "wilful neglect" means. Neglect refers to an omission. Omissions are rarely punished in criminal law, partly for policy reasons. It also tends to imply that there has been negligence, a well recognized legal concept. Most of us are familiar with the term 'medical negligence', which is a civil matter. This is for good reason, as negligence implies no fault - the issue revolves around a failure to meet a duty of care for whatever reason.
In criminal matters, there are differing requirements for subjective fault depending on the crime. For the most serious crimes e.g. murder, intention (direct or oblique) is required. Other fault requirements (or mentes reae) are recklessness, knowledge and negligence. Negligence is not often the mens rea for crime as this level of culpability is not suitable for criminal labeling. With the more serious consequences e.g. death, then a result-based approach requires criminal punishment - hence gross negligence manslaughter. However, as the term plies, simple negligence alone is not sufficient. Actually it could be argued that gross negligence is close to recklessness, especially where medical gross negligence is involved (I will cover this in a further blog). 'Wilful' implies recklessness, so we have the conundrum of whether 'wilful neglect' requires negligence or recklessness. Berwick may have indeed been thinking of the US offence of 'reckless endangerment' when he talked about a new criminal offence. Recklessness would be more palatable as a fault requirement for a criminal offence.
As for the act requirement, neglect implies an omission, and omissions are rarely punished. Where someone has a familial connection, an exception is made and parents can prosecuted for gross negligence manslaughter for neglect. Generally however omissions do not give rise to criminal liability. The UK does not have so-called "Bad Samaritan" laws, for example. So wilful neglect appears in a case of child neglect, R v Shepherd, where
Though timely medical attention might have saved his life his parents, who were poor and also of low intelligence, did not realise that he was ill enough to require examination by a doctor.
It was found that for neglect to be established, it need to be proved that:
(a) that the child did in fact need medical aid at the time the defendant was charged with failing to provide it and (b) either that the defendant was aware at that time that the child's health might be at risk if medical aid were not provided or that the defendant's unawareness of that fact was due to his not caring whether the child's health was at risk or not.
This concept of 'wilful neglect' was used in the Mental Capacity Act 2005 s 44, given that the person with a lack of capacity is in a similar position to a child in many respects.
What would the remit of the new offence be? Would it apply to all harm suffered from recklessness? How would recklessness in this regard be objective or subjective. The current position on recklessness in English law is that reckless is subjective (Cunningham recklessness rather than Caldwell recklessness), and it seems that 'wilful neglect' also requires subjective recklessness. Would disregard of clinical guidelines be regarded as recklessness in some cases? If so, this would have major implications for defensive medicine.
As for the act requirement, neglect implies an omission, and omissions are rarely punished. Where someone has a familial connection, an exception is made and parents can prosecuted for gross negligence manslaughter for neglect. Generally however omissions do not give rise to criminal liability. The UK does not have so-called "Bad Samaritan" laws, for example. So wilful neglect appears in a case of child neglect, R v Shepherd, where
Though timely medical attention might have saved his life his parents, who were poor and also of low intelligence, did not realise that he was ill enough to require examination by a doctor.
It was found that for neglect to be established, it need to be proved that:
(a) that the child did in fact need medical aid at the time the defendant was charged with failing to provide it and (b) either that the defendant was aware at that time that the child's health might be at risk if medical aid were not provided or that the defendant's unawareness of that fact was due to his not caring whether the child's health was at risk or not.
This concept of 'wilful neglect' was used in the Mental Capacity Act 2005 s 44, given that the person with a lack of capacity is in a similar position to a child in many respects.
What would the remit of the new offence be? Would it apply to all harm suffered from recklessness? How would recklessness in this regard be objective or subjective. The current position on recklessness in English law is that reckless is subjective (Cunningham recklessness rather than Caldwell recklessness), and it seems that 'wilful neglect' also requires subjective recklessness. Would disregard of clinical guidelines be regarded as recklessness in some cases? If so, this would have major implications for defensive medicine.
There is a lot to be considered before we can pronounce on the proposed new offence - the devil (as always) will be in the detail. It is likely that 'wilful neglect' will be interpreted in a very similar way to s 44 cases. Thus where a care home owner and manager are providing poor care, but nonetheless are doing this to the best of their ability, they will not be guilty of wilful neglect (R v Hopkins; R v Priest [2011] EWCA 1513)
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