Recent proposals by the Conservative party to criminalise social workers who “wilfully neglect” a child who is suspected of being a victim of abuse provokes strong debate how the concept would be applied and the impact it would have on already overstretched care workers.
The aim of the proposal is to “send out message” that child abuse can no longer be regarded as a secondary issue by public sector workers. As a result social workers could face up to five years in prison if they “turn a blind eye to abuse”.
I would agree, we do need a radical overhaul of our child protection system, but in the wake of the child abuse scandals in Rotherham and Oxford, the way to achieve this is with more investment, better pay and better working conditions. Our crisis in social care has come about, not because social workers have stopped caring about whether children are being abused, but rather, because of governmental mismanagement and a cut in public spending.
Furthermore, critics say the new proposals “threaten openness”, in that social workers will be less open when things go wrong, and could lead to scapegoating individuals who will take the blame for organisational failings.
“Wilful neglect” is not a new concept, previously deployed in the Criminal Justice and Courts Act 2015, which applies to care workers and care provider organisations in similar circumstances, and also in the Mental Capacity Act 2005 and the Children and Young Persons Act 1933.
The Courts have interpreted “wilful” to mean “advertently recklessness”. For the non-legally qualified social workers amongst us, this means “being aware that some harm might be caused if you do not act but unreasonably running that risk anyway or not caring whether such a failure to act would lead to harm being caused”. This isn’t your man on the street’s understanding of the word, usually reserved to describe a deliberate or intentional act. Add to this confusion “neglect”, a word usually used in the civil courts when describing an omission, and it is unsurprising that the contradictory concept of “wilful neglect” has caused difficulties for juries and magistrates.
When the Mental Capacity Act introduced “wilful neglect”, the Code of Practice accompanying the legislation described it to mean “a serious departure from the required standards of treatment and usually requires that a person has deliberately failed to carry out an act that they were aware they were under a duty to perform”. With this guidance in mind it is hard to envisage how the concept of “wilful neglect” can or will be applied to social workers who everyday face the impossible task of balancing the State against personal freedoms and the rights and duties of parents.
And what will be the results of a prosecution other than an expensive Crown Court jury trial? If convicted, we remove an otherwise caring person from the caring profession, we imprison an otherwise positively contributing member of society leaving less money and less people to correct the failings in the system. If acquitted, we still have the expense of a trial and a reputation in tatters.
If it sounds draconian to send a social worker to prison because they make a mistake, that’s because it is. While I do not seek to minimise the importance of ensuring that we have quality professionals in front line public sector jobs, social workers are already regularly critised by the National Press. Add to this low pay, stressful working conditions and now the threat of prosecution, all the Government will achieve is discouraging caring people from entering a caring profession.