Today, the Department of Health published proposals on how the new offence of ill-treatment or wilful neglect will operate. This takes forward an important recommendation from the report from the independent National Advisory Group on the Safety of Patients in England, chaired by Professor Don Berwick, as we committed to doing in Hard Truths: the journey to putting patients first.
This new offence is about closing a gap in current legislation to ensure that ill-treatment or wilful neglect in all care settings are subject to the same criminal sanctions. It is emphatically not about punishing healthcare staff who make honest mistakes – the Berwick report was very clear that the NHS needs to promote a learning culture where staff and organisations are supported to learn from unintended errors to improve the safety of services for patients. This is about ensuring there are robust sanctions for deliberate or reckless actions, or failures to act, that are indefensible and should never be tolerated in any health system. It is designed to tackle completely unacceptable actions, not punish human error.
Currently there are specific criminal offences which address wilful ill-treatment or neglect of children, and ill-treatment or wilful neglect of adults who lack capacity, or who are subject to the Mental Health Act 1983. For example, the prosecutions following the Winterbourne View scandal were brought under section 127 of the Mental Health Act 1983. But there are no equivalent protections for, for example, an older person with frailty who is wilfully neglected during a hospital stay. There are of course significant sanctions and powers available to regulators, including the Care Quality Commission and the Health and Safety Executive. But there is an inconsistency in legislation which means, for example, that someone could treat two people in their care in the same shocking way, but if one was judged to have full capacity to make decisions about their care and the other not, the perpetrator could be prosecuted for the specific criminal offence of ill-treatment or wilful neglect of one person but not the other.
The National Advisory Group proposed the creation of a new “general offence of wilful or reckless neglect or mistreatment” which:
- may be committed by both organisations and individuals;
- applies where the individual or organisation ill-treats or wilfully neglects someone in a way that causes serious harm or death; and
- creates penalties for the offence which are equivalent to those under s44 of the Mental Capacity Act 2005.
The consultation, launched today, sets out proposals for taking this forward and asks for views on a number of areas, including:
- whether the offence should have effect not just in health care settings but also in social care;
- how far children’s services should be included;
- whether the offence should apply to formal settings only;
- Whether there should be a harm threshold to the offence;
- how to articulate the offence in relation to organisations; and
- what penalties should apply.
This new offence of ill-treatment or wilful neglect is of course only one of many crucial recommendations of the Berwick review. The review was powerfully titled, ‘A promise to learn, a commitment to act’, and an ambitious programme of work is underway to support the NHS to learn and act. In his recent blog, Dr Mike Durkin, NHS England’s National Director for Patient Safety, reflects on action on patient safety and the development of new collaboratives to support learning and improvement. You can access key resources to support action on safety through the National Reporting and Learning System patient safety website and The Health Foundation’s patient safety resource centre.
In his letter to clinicians, managers and all staff in the NHS on the publication of his review, Professor Don Berwick set out four guiding principles to help the NHS get better faster and urged all staff to incorporate them into their daily work:
- “Place the quality and safety of patient care above all other aims for the NHS. (This, by the way, is your safest and best route to lower cost.)
- Engage, empower, and hear patients and carers throughout the entire system, and at all times.
- Foster wholeheartedly the growth and development of all staff, especially with regard to their ability and opportunity to improve the processes within which they work.
- Insist upon, and model in your own work, thorough and unequivocal transparency, in the service of accountability, trust, and the growth of knowledge.”
These core principles are at the heart of how we are taking forward the Berwick review. A new sanction on ill-treatment and wilful neglect will be relevant in a small minority of circumstances. The overwhelming majority of the 1.3 million staff who work in the NHS would never dream of ill-treating or wilfully neglecting the people in their care and have nothing to fear from it. But it provides an additional safeguard to ensure that if someone does act in a way completely counter to the values and healing mission of the health and care system, they are rightly held to account.
Tell us what you think about the proposals on ill-treatment and wilful neglect, and get involved in action on patient safety - the consultation on proposals will run until 31 March. We’d love to hear what the Berwick principles mean for you and how you are learning and acting to make care safer.