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NHS staff should face prison for patient neglect, says Berwick report

NHS staff should face jail in cases of “neglect or wilful misconduct”, a review tasked with making zero-harm care a reality in the NHS has recommended.

However, the review, chaired by former health advisor to President Obama, Professor Don Berwick, rejected calls for a duty of candour on individual members of staff.

Professor Berwick said a requirement to tell patients about every error or near miss would lead to “defensive documentation” by professionals and a bureaucratic burden.

Instead, the Care Quality Commission should require patient or carers affected by a serious incident, as defined by NHS England, to be notified and supported, his report said.

A new criminal offence should be created for cases where individuals had demonstrated a “couldn’t care less attitude” to the treatment of patients, the report recommended. Professor Berwick said this could apply equally to managers if they had acted recklessly.

It recommended sanctions should be equivalent to those in section 44 of the Mental Health Capacity Act, which include up to five years in prison.

The Berwick review was commissioned by the government back in February following the publication of the Francis report into the care scandal at Mid Staffordshire Foundation Trust.

It brought together top academics, patient representatives and NHS leaders, including Salford Royal Foundation Trust chief executive David Dalton and chief nurse Elaine Inglesby-Burke.

The review did not propose a minimum staffing level for nursing – contrary to suggestions in the national media – but supported Robert Francis QC’s recommendation that nationally recognised tools be developed to determine staffing levels.

It also said the government should review the regulatory system for the NHS by 2017, and consider again Mr Francis’ recommendation that the economic and quality regulator be merged.

Professor Berwick, who described his review as “philosophical”, said the most important of his recommendations was that all NHS staff should be educated in quality improvement methodology.

“If I could give one recommendation to the secretary of state it would be to invest in giving people these skills…

“Continuous improvement [means] never good enough. The alternative is the tick-box thinking, we are good enough, we’ve done it, we’re home. You’re never home,” he said.

NHS England chief nursing officer Jane Cummings said the NHS should use the report to “move on” from the criticism over poor care received by patients in Mid Staffordshire and other places.

“We can’t forget what’s happened before but we need to use this opportunity to move on,” she said.

“The best wards, the best nurses, do sometimes make mistakes,” she added.

“We need to have the culture and environment where staff can be open and learn from their mistakes. If we do that listen to patients we can make that [culture].”

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Readers' comments (48)

  • tinkerbell

    I agree everyone can make a mistake, but those with a couldn't care less attitutde are in the wrong job'.

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  • I have seen in another report, Prof. Berwick describe the NHS as an "international jewel". Are you listening Mr Cameron & Mr Hunt?

    Time to start polishing this jewel instead of constantly tarnishing it.

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  • prisons are already overcrowdded and costing the tax payer too much.
    unless the crime is very serious and the staff member a danger to the public perhaps there are more suitable punitive measures. removal from the professional register giving the right to practice should definitely be the first step.

    a clear distinction must be made between negligence and criminal acts and those who have made genuine mistakes with protection for them against inappropriate treatment.

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  • We still have some way to go despite raising awareness, before staff feel comfortable enough to raise concerns without the threat of retribution. The balme culture remains in all levels of the NHS. Until this is addressed 'the culture and environment where staff can be open and learn from their mistakes' may be but pie in the sky??

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  • What is this Mental Health Capacity Act? Tink should be able to answer that one for us.

    'It recommended sanctions should be equivalent to those in section 44 of the Mental Health Capacity Act, which include up to five years in prison.'

    And putting faith in the CQC, might just be a step too far.

    Anonymous | 6-Aug-2013 1:54 pm

    Yes - sort out the fear factor, first.

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  • tinkerbell

    Prosecution for ill-treatment or neglect

    The Mental Capacity Act creates the criminal offences of ill-treatment or wilful neglect under Section 44 based on existing principles (under Section 127 (1) of the Mental Health Act 1983). The offences can be committed by anyone responsible for that person’s care.

    They are offences punishable 'either way' in the Magistrates' or Crown Court as follows:

    on summary conviction, to imprisonment for a term not exceeding 12 months or a fine not exceeding the statutory maximum or both;

    on conviction on indictment, to imprisonment for a term not exceeding 5 years or a fine or both.
    The elements are that the offender:

    has the care of the person in question OR is the donee of a power of attorney OR is a court-appointed deputy;

    reasonably believes the person lacks capacity (or they do lack capacity);

    ill-treats or wilfully neglects the person.
    It can be expected that ill-treatment will require more than trivial ill-treatment, and will cover both deliberate acts of ill-treatment and also those acts reckless as to whether there is ill-treatment.

    Wilful neglect will require 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.

    In consequence, defences could be raised to the effect that the elements of the offence set out in Section 44 are not made out in the following terms:

    there is no Section 44 relationship (no care/power of attorney/court-appointed role);

    the person does not lack capacity and/or there was no reasonable belief in such a lack of capacity;

    there was no ill-treatment or wilful neglect.

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  • tinkerbell

    The Mental Capacity Act make clear who can take decisions in which situations, and how they should go about this. Anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person.

    This applies whether decisions are life changing events or more every day matters and is relevant to adults of any age, regardless of when they lost capacity.

    The underlying philosophy of the MCA is to ensure that those who lack capacity are empowered to make as many decisions for themselves as possible and that any decision made, or action taken, on their behalf is made in their best interests.

    The five key principles in the Act are:

    Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise.
    A person must be given all practicable help before anyone treats them as not being able to make their own decisions.
    Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision.
    Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests.
    Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms.

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  • tinkerbell

    and not to be confused with the Mental Health Act.

    Have a nice cup of tea with it as it's a bit dry and a long read but the briefest of explanations i could find at short notice.

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  • What about the neglect in care homes.
    I am a carer and yesterday I refused to go back to being sent to residential homes and nursing homes after I was sent to a home on Sunday where I had to dig out knickers for an old lady out of a second hand box as she did not have any, I also had to wash and clean clients with paper towels and hand wash soap. I reported it to my agency bosses again and no one cares. QCC are a joke. So its not just the NHS its ALL care facilities

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  • Will this also apply to Trust Managers who fail to allocate sufficient funding for patient care, or even, dare I say, Government Ministers whose inappropriate actions and development of Post Code Lottery care zones causes hardship and distress to patients, relatives and carers?

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  • tinkerbell

    Anonymous | 6-Aug-2013 5:13 pm

    I agree. It is scandalous and all about providing care as cheap as chips. No ethics involved or person centred care just turning a profit. I see it almost every day in most of the care homes I visit. The staff are doing the best they can with little resources & inadequate staffing levels

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  • Lets be sure that individual nurses don't end up taking the blame for managerial errors specifically low staffing levels - particularly as the Berwick Report did not propose a minimum staffing level!

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  • I'd have thought that Mr Berwick would have been better served sorting out the iniquitous money grubbing American health care system. We already have laws that protect people from deliberate harm. There is not an iota of new thinking in what he has said.

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  • Be careful.
    A nurse may be bullied, have too many patients to deal with and she may not talk to a patient in her care who needed water

    Then the patient suffers from dehideration.
    And the Nurse will be blamed. So she will be deregistered, leaving the available Nurses to deal with one more patient.

    Will the managers whoput her in this situation in the first place be blamed?

    The whole system needs looking at.
    The Why is as important as Who

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  • MeThinks

    tinkerbell | 6-Aug-2013 4:44 pm

    tinkerbell | 6-Aug-2013 4:57 pm

    It is indeed section 44 of the MCA, and as you say mental health should not be confused with mental capacity - which makes Mental Health Capacity Act a bit worrying!

    Can't entirely agree about this bit you wrote-

    The Mental Capacity Act make clear who can take decisions in which situations, and how they should go about this. Anyone who works with or cares for an adult who lacks capacity must comply with the MCA when making decisions or acting for that person.

    I'm 100% with your second sentence, but not convinced that the Mental Capacity Act is clear in explaining who can make what decisions, despite some dubious supposed elaboration in its Code of Practice. I think the MCA merely requires any person who makes a best interests decision to have complied with section 4(9) of the act.

    But I couldn't agree more with you about-

    tinkerbell | 6-Aug-2013 5:49 pm

    Anonymous | 6-Aug-2013 5:13 pm

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  • its about time the beancounters (sorry managers) were mad accountable

    they might think twice then of cutting posts, downgrading staff whilst sitting in their ivory towers

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  • michael stone

    Anonymous | 6-Aug-2013 4:02 pm and Tink - as you are clearly both aware, the reference is to section 44 of the Mental Health Act.

    This is the second time inside a fortnight I've come across the entirely fictitious Mental Health Capacity Act (it appears in the CPR policy of my local hospital) and I'm wondering if there is actually some piece of guidance out there, which I've not come across, from whence this MHCA nonsense is flowing ?

    I agree with MeThinks - the MCA doesn't impose any restriction on who can make a best interests decision, just a requirement to be able to justify being able to make it (something the NHS, being hierarchical, struggles to deal with): and the Code of Practice then uses section 42 of the Act to muddy the waters about who can legitimately make decisions.

    Managers and politicians who make it impossible for nurses to properly do their jobs, should be held to account, and so should nurses who are deliberately abusive and neglectful towards patients. I heard Berwick on Radio 4, and he did stress the difference between making a mistake and deliberate bad behaviour - I think he also mentioned 'a no-blame culture' (which gets back to the reason the NHS Complaints Process often becomes so frustrating, as we've been discussing elsewhere: raise something as a concern and you get ignored, raise it as a formal complaint and everyone concetrates on 'if there is some blame it won't be on me').

    I'm still not persuaded about minimum staffing levels. I think, staffing levels should be recorded, patient outcomes should be recorded, and when patient outcomes for different hospitals and wards are publsihed, the staffing ratios should be published alongside: that would highlight any clear problems about low staffing ratios, and might also imply what ratios were needed in various clinical enviroments.

    But you also have to somehow stop people from fiddling the figures about staffing ratios, and I see that as a challenge ?

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  • MeThinks

    I'm not sure if there is a working link to the report in the piece above, but it can be downloaded from

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  • Prison is already a penalty available in circumstances such as Mid Staffs under the Health and Safety at Work Act 1974.

    Anyone at work has a duty under section 7(a)
    "to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work"

    The penalties for transgression of this bit of the HSW Act are "Imprisonment for a term not exceeding two years, or a fine, or both."

    Of course to prevent someone, say, retiring scot free requires another person (with an interest in the matter) to start the ball rolling by making a complaint to the Health and Safety Executive.

    In this case the appropriate office would be

    Stoke on Trent

    Lyme Vale Court
    Lyme Drive
    Parklands Business Park
    Newcastle Road
    Trent Vale
    Stoke on Trent
    ST4 6NW

    Tel: 01782 602300

    Strangely this course does not seem to have been taken in the Mid Staffs matter, yet.

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  • Roger Hodgson | 6-Aug-2013 5:18 pm
    David Baird | 7-Aug-2013 8:40 am
    Anonymous | 7-Aug-2013 9:57 am

    Nail on head!

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