New criminal offences with the aim of sending a clear message that poor care is no longer tolerated are due to be introduced in the aftermath of the Mid Staffordshire NHS hospital scandal.
The introduction of a new criminal offence of wilful neglect or ill-treatment could result in up to 240 prosecutions in England every year, with those found guilty facing penalties of up to 5 years in prison, a £5000 fine, or both. Far more severe penalties are under consideration for NHS Trusts or other organisations which employ individuals convicted of these sorts of offences, according to a government consultation paper looking at the possible impact of this new legislation.
The law is intended to both at as a deterrent and provide a level playing field. Similar offences are already in place for healthcare professionals who mistreat or neglect patients without mental capacity, according to the Department of Health. The Department of Health hopes that the new offences will send out a strong message that poor levels and standards of care will never be tolerated, and will also help ensure that if ill-treatment or wilful neglect does occur, anyone found to be responsible will be held accountable.
Introducing the new legislation will cost the criminal justice system an estimated £2.2 million a year. In a small minority of cases, defendants will be expected to meet their own legal costs of around £400. Other costs of implementing the new criminal offences include the costs of the Police, and the cost to organisations of reducing the risks of being prosecuted. These are harder to put absolute numbers on, as is the cost of any damage to the reputation of a healthcare organisation.
These recommendations to introduce criminal offences within the NHS were made by Don Beriwck, a patient safety expert, sitting as Chair on an NHS advisory group. The group was set up after the conclusion of the Francis Inquiry into the goings-on at the Mid Staffordshire hospitals.
Many government ministers think that far more organisations such as private hospitals, voluntary sector organisations and nursing homes should be included under the new criminal offences legislation.
The estimate of up to 240 prosecutions a year is on the low side, if estimates are based on the number of people currently in court under existing mental health laws. Around 10.8 million of us use social care and health services every year, and the Department of Health believes that on average, there will be one prosecution for every 45,000 service users. This compares with one prosecution for every 3,000 patients under the current mental health legislation.
The Department of Health were quick to reassure healthcare workers and organisations that genuine mistakes and accidents should not ever end in prosecution, but should be used to learn and improve service quality. A spokesperson for UK patient safety charity Action Against Medical Accidents (AVMA) welcomed the proposed new legislation, in particular offences relating to organisations.