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Government’s consultation on criminal sanction for wilful neglect criticised

A number of organisations have criticised the Government’s plan to introduce a new criminal sanction for the wilful neglect or ill-treatment of patients by healthcare professionals and organisations in England and Wales.

The proposal is contained in a consultation, which was published last month and closes on 31 March 2014. It was part of the Government’s response to the Francis report following advice from the National Advisory Group on the Safety of Patients.

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In the “New offence of ill-treatment or wilful neglect” consultation, the Department of Health proposes that the new offence should not be restricted to NHS services, but should apply across all formal health and social care settings, in both the public and private sectors.

“We envisage that the offence will only cover clear cases of ill-treatment or wilful neglect, not genuine error or accident,” the consultation says.

Mark Robinson, pharmacy lead at NHS Alliance, which represents primary care health professionals, told PJ Online that it would agree that any healthcare professional or organisation that harms a patient to whom they have a duty of care through ill-treatment and wilful neglect should be open to prosecution. “However, we represent pharmacists in their struggle to decriminalise dispensing errors and have been shocked by prosecutions brought for one-off offences that can hardly be described as wilful neglect.”

He added: “It is important to feel confident that any prosecution will only be progressed where there is clear ill-treatment or wilful neglect which leads to patient harm. The wording of the guidance to police forces investigating cases and the Crown Prosecution Service will be important as to how this potential new law will be understood and implemented.”

He says that NHS Alliance believes that the most important issue is creating a new culture of patient safety, where risks can be freely discussed. “We also recognise that reporting of errors, candid and frank discussions with patients and relatives, and for organisations to highlight their risks and failings may be adversely affected by the new law.”

Double jeopardy risk: Pharmacy Voice

Rob Darracott, chief executive of Pharmacy Voice, which represents three community pharmacy associations, told PJ Online: “All of pharmacy has been arguing for changes to the automatic offences around dispensing errors for long enough and, while there is light at the end of that tunnel for honest mistakes, we won’t want to see colleagues suffering from new forms of double jeopardy which might be created by these proposed new offences.”

He stressed that no one will be arguing that instances of wilful neglect should not be dealt with, “but if we are to create a learning culture in healthcare, there is a balance to be struck around reporting mistakes, speaking up and candour, and we will be examining the proposals in that light”. Any new regulatory approach needs to be proportionate, he added.

Mia Snook, policy manager for Care Quality Commission sponsorship and quality regulation at the DH, confirmed to PJ Online that the new offence would apply to all pharmacists.

John Murphy, director of the Pharmacists’ Defence Association, rejected the proposed criminal sanction: “Legislation already exists to prosecute individuals for offences against the person and the appropriate regulator can hand down sanctions for inadequate and incompetent practitioners to protect the public. Introducing yet more legislation that singles out healthcare professionals specifically is a knee-jerk political reaction in response to some recent high-profile cases.”

He added that the threat of criminal prosecution encourages defensive and overly risk-averse practice. “[This], in the long run, affects innovation and leading edge practice to the detriment of patients.”

The Medical Defence Union, which indemnifies 50 per cent of UK doctors, also sees no need for the new legislation. It said that there were already criminal and other sanctions which could be applied, including erasure from the medical register.

A spokesman for the Royal Pharmaceutical Society said it would be completely unacceptable for organisations to “scapegoat” individuals rather than address wider system failures such as those that occurred at the Mid Staffordshire NHS Trust. “We will be considering these proposals in full and responding to the consultation on behalf of the profession.”

However, Karen Yeung, of the Dickson Poon school of law at King’s College London, and Jeremy Horder, of the department of law at the London School of Economics, argue that existing regulation is not up to the job. The lawyers say a new criminal offence of “wilful neglect” is needed for individuals and organisations in the healthcare sector to send out a clear message that appalling care warrants public censure and sanction (BMJ Quality & Safety, online, 5 March 2014).

Citation: The Pharmaceutical JournalURI: 11135508

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  • John Murphy, director of the Pharmacists’ Defence Association

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