A new criminal offence of wilful neglect would be extended across all formal healthcare settings under proposals revealed by the Department of Health.
The DH has also dropped its previous proposal to limit the offence only to cases of serious harm or death, arguing it should be a matter for investigating and prosecuting authorities to decide when charges are appropriate.
The government said the test for prosecuting an organisation for wilful neglect would be: “whether the conduct of the organisation falls far below what can reasonably be expected in the circumstances.”
Ministers have unveiled a consultation document which says the proposed law will cover all formal healthcare, including the NHS, private, primary care, community, nursing and care homes, homecare and the voluntary sectors.
It is estimated the offence, which will cover both individuals and organisations, could result as many as 240 criminal prosecutions a year, at an annual cost of the criminal justice system of £2.2m. A minority of defendants would be required to pay their own costs, estimated at £400 each time.
In his final report into care failings at Mid Staffordshire Foundation Trust, Robert Francis QC proposed individuals guilty of poor care should face criminal sanctions. A review by US patient safety expert Don Berwick supported the creation of a new criminal offence where someone was guilty of “wilful or reckless neglect or mistreatment of patients”.
The consultation document says the offence will help close a loophole in current legislation which does not provide any criminal offence for the neglect of adults who have mental capacity.
In the consultation the DH said the policy should be viewed as a legal “backstop” to tackle criminal behaviour rather than a regulatory policy and should not inhibit professionals from “exercising clinical judgement on priorities or appropriate treatment”.
It cited an example of a busy accident and emergency department in which staff were forced to prioritise patients, leading to some having to wait longer in discomfort. It also said genuine errors or accidents should not be prosecuted.
The DH said: “This offence will send a strong message that poor care will not be tolerated and ensure that wherever ill-treatment or wilful neglect occurs, those responsible will be held to account.”
The consultation closes on 31 March.