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Berwick: Wilful neglect deserves prison sentence

Berwick: Wilful neglect deserves prison sentence


Clinicians who wilfully neglect patients should face a maximum of five years in prison, a report released today claims. 

The report, led by US healthcare expert Professor Don Berwick, Improving the Safety of Patients in England states criminal charges could act as a “deterrent to mistreatment.” 

Published today it puts wilful, reckless neglect on the same level as currently applies to vulnerable people under the Mental Capacity Act, although it expects that prosecutions should be “extremely rare”. 

According to Berwick, the sanctions also apply to leaders who have a “couldn’t care less attitude” which has caused avoidable death or harm, or who deliberately withhold information. 

But Berwick did not go so far as to approve of the ‘duty of candour’ called for in Robert Francis QC’s report into the Mid Staffordshire Hospitals scandal, released in February this year. 

‘Bureaucratic nightmare’ 

Speaking at launch of the report which aimed to make 'zero harm' care a relaity, he said: “What we’re concerned about is that if there’s a very wide, sweeping duty of candour, in which staff members have to report every single possible error or near miss, you would end up with a regulatory and bureaucratic nightmare which isn’t worth it.

“[But] we do think there ought to be a duty on behalf of leaders to supply information to regulators and other authorities. To hide that information should not be acceptable. It should not be legal.” 

According to his report, the duty of candour is sufficiently represented in professional codes of conduct. 

However Berwick, former advisor to US President Barack Obama, was keen to point out that the new legislation should not penalise human error. 

His report states that in the vast majority of cases it is “systems, procedures, conditions, environment and constraints” that lead to patient safety problems. 

Health Secretary Jeremy Hunt said: “I want to get to a point where every patient has confidence that their care will be safe and where every member of NHS staff feels supported to make safe, high quality care the priority.” 

The report notes that quantitative data, such as the Friends and Family Test, should be used with caution, never displacing the goal of better care. 

It even goes so far as to state: “It is counterproductive to use staff survey and attitude data as a performance management tool or to compare organisations. 

“We believe that aggregated data may camouflage variation within organisations that would be revealed by intelligent fine-grained analysis at local level.” 


And the use of a “tick-box” regulatory system also needs to be overhauled, it is claimed. 

The patient safety report has called for changes to the NHS’ “bewildering” and “complex” regulatory system. 

According to Berwick, it is hard for managers and hospital directors to get clear signals about what they should be doing because it is “increasingly unclear what they are doing and why”. 

He recommends merging some or all of the organisational regulators – such as Monitor and the Care Quality Commission (CQC) – so that responsibility for quality, patient safety, standards and outcomes are transferred to NHS England or other bodies. 

Berwick warned that unless the bodies find a way to work together, with an in-depth, independent review of the structures before 2017, a merger should definitely be considered. 

He said: “We urge that the government take seriously the consequences to the patients of the regulatory oversight. It doesn’t necessarily have to be structural. Extremely high levels of cooperation between the agencies would be sufficient. But we insist on clarification of signals.” 

The report also addressed the issue of staffing ratios, recommending that the National Institute of Health and Care Excellence should develop guidance based on scientific data. 

The government will now consider the report and respond in full later this year


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