The government is introducing a new criminal offence for healthcare workers who wilfully neglect or ill-treat patients. The new offence may seem uncontentious but, in practice, it could have significant unintended consequences that could negatively impact on the professional lives of all healthcare workers, including doctors.

The government is introducing a new criminal offence for healthcare workers who wilfully neglect or ill-treat patients. The new offence may seem uncontentious but, in practice, it could have significant unintended consequences that could negatively impact on the professional lives of all healthcare workers, including doctors.

The proposals were revealed by the Department of Health in February and have now been formalised as amendments to the Criminal Justice and Courts Bill, which is currently before parliament. Since then MPS has been lobbying government and parliamentarians to ensure the law is clear and does not unreasonably impact on the everyday decisions of members.

The legislation will:

• Make it an offence for healthcare workers to “ill-treat or to wilfully neglect” someone in their care
• Create an offence for the organisations that employ healthcare workers that ill-treat or neglect someone if the organisations are not managed in such a way that could have prevented it, or made it less likely to have occurred
• Create penalties for healthcare workers of up to five years in prison and a fine.

Unintended consequences

It is right that where a healthcare professional’s behaviour is unacceptable they face tough sanctions for their actions but we believe the current regulatory, disciplinary and criminal framework is already effective at censuring unprofessional behaviour, when properly applied.

We do not think that additional criminal sanctions will act as an additional deterrent to poor practice. They may, however, make doctors more fearful of the way their conduct may be later criticised, less open and willing to admit genuine errors to either patients or management and therefore make healthcare less responsive and accountable to patients. This would be in direct conflict with the new legal ‘duty of candour’ the government has introduced on organisations, and thus its employees, to be open with patients about mistakes.

Many in the healthcare community are rightly concerned about what these proposals might mean in practice. As the proposals currently stand, there is a risk that almost any decision – whether it involves the allocation of resources, triaging patients or deciding on a course of treatment – could potentially be investigated for wilful neglect. The government is relying on prosecutors exercising their discretion not to investigate reasonable clinical judgements but this will leave doctors uncertain and fearful about whether their actions could be later deemed criminal.

we believe the current regulatory, disciplinary and criminal framework is already effective at censuring unprofessional behaviour, when properly applied

The legislation should be amended so the offence clearly deals with only the most serious incidents and does not spread fear about the police investigating reasonable care decisions.

Dr Nick Clements, Casebook editor-in-chief, said: “This criminal sanction could have a significant impact on the professional lives of doctors in ways that have not been adequately addressed by the government and need further consideration.

Next steps

MPS is calling on the government not to undermine professionalism or create a culture of fear in the healthcare profession. We want the government to provide more clarity as to how the offence will apply to doctors’ actions and limit the impact on reasonable everyday decision-making.

In July we held a very well-attended breakfast seminar in London, with attendees from across the health sector representing doctors, nurses and the organisations that employ them. There was broad consensus about the potential risks created by the law. We have already lobbied parliamentarians to put down amendments and are now beginning work with other key stakeholders to continue our efforts.

We want the government to provide more clarity as to how the offence will apply to doctors’ actions

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