Neglecting justice? Exploring Scottish convictions for ill-treatment and wilful neglect
| Published date | 10 August 2015 |
| Pages | 234-244 |
| Date | 10 August 2015 |
| DOI | https://doi.org/10.1108/JAP-02-2014-0005 |
| Author | Christopher Godwin,Kathryn Mackay |
| Subject Matter | Health & social care,Vulnerable groups,Adult protection |
Neglecting justice? Exploring Scottish
convictions for ill-treatment and
wilful neglect
Christopher Godwin and Kathryn Mackay
Christopher Godwin is
a Social Worker at
Glasgow City Council,
Glasgow, Scotland, UK.
Kathryn Mackay is a Lecturer
in Social Work at the School
of Applied Social Science,
University of Stirling,
Stirling, UK.
Abstract
Purpose –The purposeof this paper is to explore the perceivedlow number of Scottishcriminal convictions in
cases of ill-treatment or wilful neglect of adults where the victims experienced mental disorder, and/or
incapacity. Human rights and anti-discrimination legislation are drawn upon to consider whether victims are
gaining equalityof access to justice throughthe charging and convictionof those who commit these offences.
Design/methodology/approach –The paper uses the concept of parity of participation to first set out the
wider legal framework in which access of justice takes place and to try to determine how it may be working in
practice. Second the paper explores Scottish guidance, research and case law in relation ill-treatment or
wilful neglect to evaluate the seeming lack of progress towards criminal convictions.
Findings –Whilst the legal framework, at least on paper, appears to promote equality of access to justice,
little is known about how it is working in practice; in particular whether cultural barriers to participation are
being addressed. Evaluation of Scottish statistical data on cases of ill-treatment and wilful neglect revealed a
small number of cases progressing to court though there were challenges in constructing a pathway from
charges to convictions. There also appeared to be no Scottish legal opinions published in connection with
these cases. In addition lack of research means that little is known about why cases progress, and how
victims might be being supported through the process.
Research limitations/implications –It is suggested that these gaps in information, in comparison to
England and Wales, might be hindering practice. In particular the apparent lack of operational definitions for
ill-treatment and wilful neglect in Scotland may reduce the use of this type of criminal offence. As such criminal
offences embedded within civil mental health and mental capacity legislation may currently be hidden in plain
sight. The human rights consequences of the issues raised in this paper are argued as significant. Research is
needed to fill these gaps and inform future guidance and training.
Practical implications –Improved Scottish guidance and publicity of this issue is required. Local
inter-agency discussions and training could develop a better understanding of how these offences have been
defined and how disabled people might be supported through the legal processes. The Scottish publication
of statistical information for charging and convictions might usefully record these offences separately to give
them a greater public profile in the future.
Originality/value –Thispaper highlights the dearth ofpublicly available informationon the number and nature
of Scottish prosecutions for ill-treatmentor wilful neglect. It suggest ways in how this might be addressed.
Keywords Mental health law, Justice, Human rights, Ill-treatment, Criminal justice, Wilful neglect,
Adult support and protection
Paper type Research paper
Introduction
The challenges of identifying and addressing the abuse, ill-treatment and neglect of adults are
currently on the political agenda across the UK. The scandals of Mid Staffordshire (NHS) and
Winterbourne View (private) Hospital are just the latest in a series of incidents that indicate the
Received 23 February 2014
Revised 30 October 2014
7 December 2014
10 February 2015
13 March 2015
Accepted 30 March 2015
The authors would like to thank
the Scottish COPFS and the
Scottish Government’s Justice
Analytical Unit for their assistance
in providing the statistical data,
and to thank the reviewers for their
helpful advice.
PAGE234
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THE JOURNAL OF ADULT PROTECTION
j
VOL. 17 NO. 4 2015, pp. 234-244, © Emerald Group Publishing Limited, ISSN 1466-8203 DOI 10.1108/JAP-02-2014-0005
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