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Wilful neglect of patients offence to become law by 2015


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”

Norman Lamb

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.

Don Berwick

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.

Norman Lamb

Norman Lamb

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.”


Readers' comments (31)

  • worry will increase the amount of "defensive" nursing that takes place. However as has been demonstrated nurses can fail and this can be massively detrimental to patients and this should not go unpunished. However I feel this law should be supported with providing nurses and doctors with resources and support needed to conduct best practice and feel confident doing so, such as investment in the workforce and teams

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  • michael stone

    '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.'

    A House of Lords select committee report examining the implementation of the Mental Capacity Act recently concluded that many professionals either don't understand the MCA, or in some cases are even deliberatley mis-applying the Act. So this new law is very likely to have the same basic problem: a perfectly reasonable objective, but something very likely to 'be screwed up in practice'.

    I agree with Anna Price - however, presumably if organisations allow so much 'defensive practice' as to make the treatment received by patients inadequate, the organisation will fall foul of this law ?

    The problem with this type of objective, is the problems of formalising the 'definitions' - it is rather like trying to create some sort of 'auditable check-list' that would allow an observer to decide if a person was 'in a grumpy mood': if you know someone, you can 'just tell when they seem grumpy', but we don't arrive at that conclusion via a formal auditable process. 'Neglect' is a bit like that (and it means different things to different people, to complicate matters) - 'you tend to know it when you see it'.

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  • Steve Turner

    Although I'm fully in favor of holding people to account. (That's everyone not just health professionals and those who give direct care). I think it's hard to say how this law will pan out.

    My view is that unless dysfunctional orgnaisational cultures are successfully tackled. Meaning that all providers act transparently & with integrity from top to bottom of the organisation, there could be unintended consequences.

    Of course repeated reckless behavior, and failure to learn, should result in the individual being held to account. But what if the employer has brushed this under the carpet for years, will the be picked up? Will failings lead only to nurses and doctors being prosecuted, when the underlying reason is willful blindness on the part of the employer.

    Maybe I'm being naive and I appreciate that the questions I am posing can't be answered yet. So I think we all have a responsibility to act together to make this law work. One of the first tasks being to ensure we use a human factors based approach, and flatten the inappropriate hierarchies, which still blight some areas of healthcare provision.

    It is really important that health professionals /care givers, and relatives, are able to speak out safely about poor standards. This something which can, and should, be measured.

    Unfortunately it is still the case that not all feel they can speak out safely.

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  • who will want to care for patients anymore. one complaint and you are guilty until proved innocent. since the patient is always believed before the carer this is difficult. stlll society gets what it deserves

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  • The neglect that I have witnessed is very easy to identify or detect, very obvious.
    This had to happen.

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  • About time.
    There are clear guideline in place that nurses know or ought to know when caring for people. If they fail to apply or comply with these standards that is below an acceptable standard of care and therefore a breach of duty.

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  • Steve Turner

    Rodney has a point. Although I don't think the law will put staff off, and in my experience (mental health) patients are sadly not always believed, when they should be! This can effect them very badly.

    When I talk about accountability I really mean everyone - staff, carers, relatives, the public, the media, professional bodies, lobbyists, managers, leaders, politicians...everyone.

    Malicious / vexatious complaints are very rare and easily identified in my opinion. Often there is something behind it, just not what the person is saying.

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  • Used to have a sign that said "The beatings will continue until morale improves."

    Increasing the penalties for perceived failure to perform does little to improve performance. This is an expression of abandonment by the politically powerful of any responsibility fo the delivery of medical care.

    There are already plenty of laws, tules, guidlines, and best practices. What is lacking is the resources, attention, and will needed to bring care back to the hospital, nursing home, clinic, and doctor's surgery.

    The only way that this law could be useful is if it Leads to the former managers and executives of Mid Staffs to be charged.

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  • Tiger Girl

    Steve Turner | 12-Jun-2014 11:59 am

    The problem with 'vexatious complaints' is the one of perspective: frequently the complainant, and the professional being complained about, are 'seeing different things'.

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  • Malicious complaints are rare because sick people can't be bothered. Relatives looking on are not anxious to complain either, scared it will backfire on the patient and not sure how to go about it. There is a massive under-reporting of bad behaviour, those feeling beleaguered should remember this. There is no excuse, proved by the fact that most conduct themselves well in the face of all sorts of stresses. But a significant proportion don't and they should not be defended under any circumstances. They just screw it up for everyone else. If it is such a trial and effort to be held accountable, Rodney, maybe you should rethink your career.

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