A new criminal offence of wilful neglect is to cover all formal healthcare settings, including the NHS and the private sector, under proposals revealed by the Department of Health.
The proposal goes further than recommendations made last year in two high profile reviews focused on patient safety.
The DH also said the offence would not just be limited to cases of serious harm or death, contrary to previous suggestions. It should be a matter for investigating and prosecuting authorities to decide when charges were appropriate, the DH said.
It estimates the offence, which will cover both individuals and organisations, could result as many as 240 criminal prosecutions a year.
The test for prosecuting an organisation for wilful neglect would be “whether the conduct of the organisation falls far below what can reasonably be expected in the circumstances”, the government said.
Ministers have unveiled a consultation on the new offence as part of its response to the Francis report into care failings at Mid Staffordshire Foundation Trust. The consultation says the new law will cover not just the NHS but all formal healthcare – including the private sector, primary care, nursing and care homes, homecare services and the voluntary sector.
The Francis report proposed individuals guilty of poor care should face criminal sanctions. A subsequent review by US patient safety expert Don Berwick supported the creation of a new criminal offence where someone was guilty of “wilful or reckless neglect or mistreatment of patients”.
The consultation document says the new offence will help close a loophole in current legislation, which does not provide any criminal offences for the neglect of adults who have mental capacity. Current offences relate only to the ill-treatment of children, adults who lack capacity or are covered under the Mental Health Act.
In the consultation the DH said the policy should be viewed as a legal “backstop” to tackle criminal behaviour rather than a regulatory policy and should not inhibit professionals from “exercising clinical judgement on priorities or appropriate treatment”.
It cited an example of a busy accident and emergency department in which staff were forced to prioritise patients, leading some to wait longer in discomfort. It also said genuine errors or accidents should not be prosecuted.
The DH said: “This offence will send a strong message that poor care will not be tolerated and ensure that wherever ill-treatment or wilful neglect occurs, those responsible will be held to account.”
The consultation closes on 31 March.