2.1 Civil and criminal law
There are two branches of the justice system: civil and criminal. Each branch has distinct procedures and terminology.
- Civil proceedings are generally concerned with disputes between what are termed ‘legal persons’ (which includes citizens as well as companies and other organisations).
- Criminal law normally involves a proceeding brought by the state (the prosecution) against one of its citizens.
Although there are two systems, there is not always a clear dividing line between civil and criminal matters, and the same facts can give rise to proceedings in either or both systems, as the case in the next activity illustrates.
Activity 3 Civil or criminal?
Read Jakub’s story below and see if you can identify the matters that fall under criminal law and those that fall under civil law.
Case study: Jakub
Jakub is 92 and lives in the flat he rents. He has been cared for by his children, Antoni and Jan, who do not live with him. A neighbour contacts social services; he is concerned because he has not seen Jakub for a while. On visiting the flat, the social worker finds that Jakub has been living in very unhealthy conditions. He has also been hoarding and the social worker feels that the conditions at the property are dangerous.
Jakub explains that he lent Antoni a large sum of money to enable him to start a business, and that Antoni has failed to pay it back. In addition, there is a significant amount of money missing from Jakub’s bank account; Jakub does not know what has happened to it but says that Jan has his bank card so that he can pay his bills for him.
| Matters for civil law | Matters for criminal law |
|---|---|
Comment
Jakub could issue a civil claim against Antoni to get him to repay the money he lent to him. There may be further civil proceedings issued by the housing authority to ensure that the property is made safe. In addition, criminal proceedings may be brought against Jan if he has been using Jakub’s bank account fraudulently.
One important distinction is that the rules and consequences of the two justice systems are different. In civil proceedings, the outcome would be in the form of an order that the court ultimately decided to make. If there were a criminal prosecution, the outcome on conviction would be punishment of some kind, such as a fine or imprisonment.
It is not only in terms of the possible outcomes that there are differences. One important distinction, for example, is that the standard of proof is not the same. The ‘standard of proof’ refers to the criteria for making judgments in legal proceedings, and concerns the degree of certainty that magistrates, judges, sheriffs or juries have to consider in making their decisions.
In civil proceedings, the person who initiates the court action has to prove their case ‘on the balance of probabilities’ – that is, it is more likely than not that the events alleged to have occurred did in fact occur. The standard of proof in a criminal trial, however, is much stricter: the case against the accused must be proved ‘beyond reasonable doubt’. This means that if there remains any real doubt in the minds of the jury, for example, they must acquit the accused. Therefore, in relation to Jakub’s case above, the standard of proof in respect of the loan would be on the balance of probabilities, while any allegations in criminal proceedings against Jan would have to be proved beyond reasonable doubt.
While social care professionals have a number of powers and duties to allow them to fulfil their function of meeting need and safeguarding, they are also subject to special criminal law provisions. The following activity allows you to consider some of the criminal law offences that are directly relevant to social care practice.
Activity 4 Criminal law in practice
Read the scenario below, then answer the questions that follow.
Case study: Shahnaz
Shahnaz has a heart condition, is incontinent and can no longer look after herself. As a result, she is now living in a care home. Her only daughter Naima, who lives over 100 miles away, visits her once a fortnight.
During a recent visit, Shahnaz was unusually very quiet and Naima asked if there was anything wrong. Shahnaz then told her that she was frightened of Sandra, one of the new care workers, and that she had complained to other care workers but nothing seemed to have been done – and that was ten days ago. When Naima pressed Shahnaz as to why she was frightened of Sandra, Shahnaz said she shouted at her repeatedly, often ignored her requests for help, and made fun of her. Then, just two days ago, Sandra had slapped Shahnaz when she had wet her bed again.
Naima complained to the manager of the care home, who apologised and assured her that it wouldn’t happen again. At Naima’s next visit, Shahnaz is very distressed and tells her that Sandra has recently slapped her again and is still shouting at her and humiliating her. Naima is furious and confronts the manager who apologises again but blames staffing problems for the failure to have sorted this out.
1. Do you think that any criminal offence has been committed? Give reasons for your decision.
Comment
You may feel that Sandra’s behaviour is not acceptable, but has a crime been committed? It could be argued that, in slapping Shahnaz, Sandra has assaulted her and could be prosecuted.
However, special criminal offences have been created as a result of earlier scandals that involved care workers abusing residents in care homes. In England and Wales, Section 20 of the Criminal Justice and Courts Act 2015 (CJCA 2015) provides that ‘it is an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual’. There is an equivalent provision in Scotland (in the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act 2016). At the time of writing, there is no equivalent in Northern Ireland, although the Northern Ireland Human Rights Commission (2021) is supporting the introduction of the new ‘care worker’ offence of ill-treatment and wilful neglect to address this gap in the law.
2. Do you think Sandra’s behaviour is acceptable?
Comment
Irrespective of whether or not you think Sandra’s behaviour should be punished by the criminal law, it is still the case that her behaviour is unacceptable. If this was in Scotland, it is clear that her behaviour would be seen as falling short of the expectations set out in the Scottish Social Services guidance. This states that social service workers must uphold public trust and confidence in social services and must not ‘abuse, neglect or harm people who use services’ (SSSC/CI, 2020, p. 9). This guidance also refers to the need for social service workers ‘to promote the independence of people who use services while protecting them, as far as possible, from danger and harm’.
There is similar guidance across the UK: for example, in England, the workforce development and planning body Skills for Care states in its Code of Conduct that adult social care workers must ‘promote and uphold the privacy, dignity, rights, health and wellbeing of people who use health and care services and their carers at all times’, and ‘must never abuse, neglect, harm or exploit those who use health and care services, their carers or your colleagues’ (Skills for Care, 2013, p. 5).
In Northern Ireland, the Social Care Council’s Standards of Conduct and Practice state that social workers and social care workers must promote the autonomy of service users while safeguarding them as far as possible from danger or harm. They must also respect the rights of service users while seeking to ensure that their behaviour does not harm either themselves or other people. In such a case, the service user (and any relatives) must, of necessity, put their trust in the carer and the care home.
Social Care Wales (2017) Codes of Professional Practice for Social Care state that social care workers must: respect the views and wishes, and promote the rights and interests, of individuals and carers; strive to establish and maintain the trust and confidence of individuals and carers; promote the well-being, voice and control of individuals and carers while supporting them to stay safe; respect the rights of individuals while seeking to ensure that their behaviour does not harm themselves or other people; act with integrity and uphold public trust and confidence in the social care profession; and finally, be accountable for the quality of their work, taking responsibility for maintaining and developing their knowledge and skills.
3. Do you think the response of the care home manager is acceptable?
Comment
The failure of the management of the care home to take timely and appropriate action in response to Naima’s initial complaint is clearly an issue. The excuse of staff shortage is no excuse for not making further enquiries and taking action – for example, terminating Sandra’s employment, requiring her to undergo further training or perhaps giving her a formal warning. It is also possible, depending on the severity of the case, for the care home to be charged with a criminal offence.
The care home commits an offence if an individual is wilfully neglected or ill-treated by someone providing social care on its behalf, and the care home’s management is organised in such a way as to be a gross breach of the duty of care owed to the individual. In other words, the conduct falls far below what would reasonably be expected and, if not for that gross breach, the wilful neglect would not have occurred (Section 21, CJCA, 2015 – see similar provision in Section 26 of the Health (Tobacco, Nicotine etc. and Care) (Scotland) Act (2016)).
These activities show how connected the issue of law is to social care and social work. The next section looks at the importance of knowing the law for social care and social work practice.