Wilful neglect could become a criminal offence next year after the government last night tabled amendments to the Criminal Justice and Courts Bill.
According to the new clauses, the offence would focus on the conduct and behaviour of individuals, rather than the outcomes of their actions.
“This is not about punishing honest mistakes; it is about closing the gap in current laws so that this type of poor care cannot go unpunished”
They would apply to all formal and, healthcare and social care settings for adults and children, covering public and private sectors in England and Wales.
The offence would also apply to individuals and organisations, with the former facing a maximum jail sentence of up to five years if found guilty. Organisations would face penalties similar to corporate manslaughter, including fines and publicity orders by a court
The government said the offence was not about punishing staff who make honest mistakes, but about providing “robust sanctions for deliberate or reckless actions, or failures to act”.
It follows recommnedations made by Robert Francis QC in relation to the public inquiry into the scandal of poor care at Mid Staffordshire Foundation Trust, which were supported by the national review into patient safety led by US expert Professor Don Berwick.
The government said the test for prosecuting organisations for wilful neglect would be “whether the conduct of the organisation falls far below what can reasonably be expected”.
The Department of Health estimates that the law could lead to 240 criminal prosecutions a year at an annual cost to the criminal justice system of £2.2m.
Ministers said the laws mirror offences already in place for the ill treatment of mental health patients under section 44 of the Menal Capacity Act 2005.
Health minister Norman Lamb said: “The NHS is full of caring and compassionate staff delivering the best care for patients. But the Francis inquiry showed that sometimes the standard of care is not good enough. That’s why we are making it a criminal offence when a patient suffers ill treatment or wilful neglect.
“This is not about punishing honest mistakes; it is about closing the gap in current laws so that this type of poor care cannot go unpunished,” he said.
“The proposal is part of a package of measures after Francis to ensure better protections for patients, more support for NHS staff and greater transparency and openness in the NHS,” he added.
But Nick Clements, head of medical services at the Medical Protection Society, described the new offence as “extremely disappointing”.
He said: “This criminal sanction will have a huge impact on the professional lives of doctors, and it must be given time to receive the serious scrutiny it warrants; not just rushed through as an amendment to an existing bill.
“[The society] strongly opposes the new criminal sanctions as we believe the current regulatory, disciplinary and criminal framework is already effective at censuring unprofessional behaviour and there is no justification for new legislation.”