Geraldine Swanton explains how Prime Minister David Cameron’s plans to extend the law of wilful neglect to education might affect colleges, and how existing legislation in the area is currently being enacted within the sector.

On March 3, 2015, David Cameron announced a commitment to tackle child sexual exploitation and the government’s intention to impose criminal liability on those who fail to protect children.

This will be done by an extension of the law of “wilful neglect” to education.

The press has reported that teachers who fail to protect children could face up to five years in jail under the proposals.

Following the Francis Enquiry into the causes of the failings in care at Mid Staffordshire NHS Foundation Trust between 2005 and 2009, the government enacted in February this year a new offence of ill-treatment or willful neglect of patients in formal health and social care settings. It is not yet in force.

The offence applies to individual providers of health and social care who ill-treat or wilfully neglect an individual to whom they provide care, as well as to organisations which provide or organise such care. “Wilful neglect” is not defined. The proposal is to extend this offence to education.

The offence also applies to organisations in the same way as the offence of corporate manslaughter ie if the way in which the care provider’s activities are managed amount to a gross breach of a relevant duty of care to the person who is ill-treated or neglected and in the absence of the breach, the ill-treatment or neglect would not have occurred or would have been less likely to have occurred.

Colleges have applied their safeguarding policies to vulnerable adults as a matter of good practice

Organisations found guilty of the offence will be subject to a fine, a remedial order and/or a publicity order.

Colleges already have a statutory duty to promote and safeguard the welfare of children who receive education.

The guidance issued by the Department for Education is called Keeping Children Safe in Education. It gives substance to the duty and states that colleges have a responsibility to identify children who are suffering or are likely to suffer, significant harm.

Once identified, colleges should “take appropriate action”, which means reporting the fact to the relevant agencies and working with them to support the child.

That may include supporting social workers to take decisions about individual children. Colleges are also required by the guidance to provide a safe environment in which children can learn.

This is consistent with local authorities’ duty to make arrangements with relevant agencies, including colleges, to co-operate to improve the welfare of children.

Ofsted inspects colleges’ safeguarding performance and failure to discharge the duty could result in intervention by the Secretary of State.

Colleges have no comparable statutory safeguarding duty in respect of vulnerable adults, though they have duties in respect of health & safety legislation and disability discrimination, particularly the duty to make reasonable adjustments and to provide auxiliary aids to prevent disabled learners from suffering substantial disadvantage as a result of their disability.

Colleges have nevertheless applied their safeguarding policies to vulnerable adults as a matter of good practice, relying to some extent on guidance provided by the Department of Health for those providing adult care.

Colleges have, since at least 2002 when the safeguarding children duty came into force, been sensitive to the signs of abuse and have engaged with the relevant statutory agencies to protect the victim.

The current safeguarding duty is however a different order from the government’s proposal to impose a positive duty to prevent harm, with the spectre of criminal liability for a failure to do so.

While no one would challenge the need for society to protect its most vulnerable from harm, the propensity of governments to extend the reach of the criminal law beyond the actual perpetrators of heinous crimes is a source of concern.

It is too early to speculate on the extent of the proposed offence and its implications for colleges. No doubt colleges and their representative bodies will press for further information and participate at the earliest stages of the consultation process.