Couldn’t Care Less – Wilful Neglect & Section 28 Liability

What happens when a charity or club is deliberately neglectful, or reckless, in executing on its vetting procedures? What is 'wilful neglect'? How does it impact on volunteering? Find out here in Part 6 of our series on Section 28 liability under the Irish vetting legislation.

In our most recent essay, Part 5 of our current review of Section 28 – Liability for Offences by Bodies Corporate – National Vetting Bureau (Children and Vulnerable Persons) Acts 2012 – 2016 – we looked at the idea of ‘turning a blind eye’ to bad practice – how that’s called ‘connivance’ – and how it’s the second of the 3 branches of ‘intention’, in deciding whether or not the member of the senior management team falls foul of the section 28 liability triggering provision. If you haven’t already checked them out, you can access the other parts of this series here: Part 1, Part 2, Part 3, Part 4 and Part 5.

Remember, for senior management to find themselves in the cross-hairs of section 28, they must consent to, connive with, or through their willful neglect, allow the organisation to commit the underlying criminal offence.

This is what lawyers call, in old fuddy duddy Latin, ‘mens rea’, or what is more commonly known as ‘intention’ – i.e. a person’s state of mind.

You’ll recall that section 28 splits up ‘intention’ into 3 different branches:

We’ll see what ‘wilful neglect’ looks like. Broadly speaking, it’s when a person or organisation:

even though they know there is some risk to a child or vulnerable person due to their actions or omissions, or simply because they do not care about that risk.

SECTION 28 - A RECAP

(Remember, for those looking for a quick recap, that section 28 of the Irish vetting legislation creates personal criminal liabilities on charities and clubs’ senior management (directors, officers, managers, or persons purporting to act as such) where it’s found that a criminal offence has been committed not by them, but rather by the body corporate (i.e. the charity / club), in circumstances where it can be proven that the offence was committed either with the senior management personnel’s personal consent, connivance, or willful neglect).

A few essays back, we created this Handy Guide to Section 28, for anyone involved in an organization with volunteers, where they hold the position of director, manager, secretary, or another officer position. If you haven’t done so already, you might want to check it out now.

NOT CARING LESS - WILFUL NEGLECT

WILFUL NEGLECT – A PARALLEL IN MEDICINE

Sometimes it’s helpful to look outside of our own area to learn lessons on how something can be applied in volunteering.

In this case, we can learn from the world of medicine, and the duty of healthcare professionals towards their patients.

This article here from the Medical Defence Union’s website is a great starting point (the MDU is the UK and Ireland's leading medical defence organisation, providing professional indemnity insurance in respect of e.g. allegations of poor practice etc). In that article, they are looking at the idea of willful neglect in the world of medicine.

WHAT CAN HEALTHCARE TEACH VOLUNTEERING?

CONDUCT  MATTERS - NOT OUTCOME

A significant lesson is this: in assessing whether there has, or hasn't, been an instance of wilful neglect, remember this:

WHY HARM IS NOT SO RELEVANT

To have a threshold of harm as a relevant consideration, would be perceived as effectively condoning ‘lesser’ ill-treatment of wilful neglect, when in fact the policy objective would suggest that there is a zero-tolerance approach to any such conduct.

HYPOTHETICAL CASE STUDY

A very busy month in the volunteer services department of a major regional charity.

It is an exceptionally busy late November in the volunteer services department of a major regional charity. The regional volunteer services director is leading an overhaul of the team’s recruitment and selection processes for volunteers, and a junior new member of the volunteer management team has been asked to step up and conduct a series of interviews for people who’ve applied to volunteer.

The new team member has had a very busy week already, and forgets to bring vetting forms to two of the interviews.

He makes a mental note to let his boss know that the forms are outstanding, but before he gets around to sending an email, he’s asked by someone on the HR team to help with an IT issue that has suddenly surfaced (he’s quite handy with IT).

Consequently, he never gets around to letting his boss know that he didn’t get the vetting forms completed by the two applicants.

Despite his best efforts trying to sort out the IT issue for HR, the IT issue remains unresolved and causes significant stress amongst the team.

Unfortunately, back in the volunteer services department, the two people’s vetting forms are completely forgotten about, compounded by the absence of an email or note to the head of volunteer services, so the boss did not know of the junior team member’s initial intention to follow up on the missing vetting forms.

As it was a case of ‘all hands to the pump’, even though the vetting forms were never dealt with, in the transition to a new team of people working in the volunteer services department, these particular applicants were subsequently allowed to help out in the volunteering service.

Fast forward eight months, the CEO of the charity gets a call from head of legal – a serious allegation has been made against one of the volunteers, by a service user – it turns out it was one of the two persons for whom vetting forms were never followed up.

COMMENT

Context is important. There is no suggestion that the junior team member deliberately failed to act despite being aware of the consequences for not getting the vetting forms up and running.

But that might very well not be sufficient to prevent a police investigation, even if, on the facts of a particular case, a decision is subsequently made not to prosecute.

Nonetheless, the failure to get the vetting forms completed and the outcome processed by the National Vetting Bureau, along with allowing the two people to get involved without vetting paperwork place, would qualify, arguably, as a case of willful neglect.

WHAT IS WILFUL NEGLECT?

Essentially the ‘wilful’ element connotes acting (a) deliberately or (b) recklessly.

It represents a serious departure from required standards that the organisation were aware they were under a duty to perform. Simply put, it's one of either:

LEGAL CLUES TO WILFUL NEGLECT

Again, drawing heavily on the UK Department of Health's approach to the formulation of a new criminal offence of wilful neglect in healthcare (at page 7), we see that:

TESTING FOR WILFUL NEGLECT

As with some other offences involving organisations, there can often be a potential difficulty in proving mens rea, that is, in demonstrating the mental element of the offence by proving that the “directing mind”, usually someone at the very top of the organisation, embodied the company in his or her actions and decisions.

The test would be whether the conduct of the organisation falls far below what can reasonably be expected in the circumstances. This approach would also allow scrutiny of the collective actions/failings of the organisation’s senior management.

SUMMARY

Was the committing of the offence attributable to a person's wilful neglect?

Answering this question is ultimately going to be done on a case by case basis. It involves looking at the facts of what happened, and then coming to a view as to whether the actions involved, which lead to the offence being committed, were deliberately reckless; or caused by a person’s reckless failure.

A few essays back, we created this Handy Guide to Section 28, for anyone involved in an organization with volunteers, where they hold the position of director, manager, secretary, or another officer position. If you haven’t done so already, check it out now.