Members of the Berwick review group have played down the impact of its proposed new criminal offence of neglect or wilful misconduct. This came as lawyers cast doubt on whether it could lead to the successful prosecutions of managers or organisations.

The review, published yesterday, stressed it did not support the “punishment” of NHS executives or managers for “poor performance that occurs for reasons beyond their control”.

However, it recommended new criminal penalties be introduced for “leaders who have acted wilfully, recklessly, or with a ‘couldn’t care less’ attitude and whose behaviour causes avoidable death or serious harm”.

It proposed sanctions equivalent to those in section 44 of the Mental Capacity Act 2005, which include up to five years imprisonment for wilful neglect or ill treatment.

Professor Berwick told HSJ the introduction of a new criminal offence would serve as an “important form of assurance for the public” but was not “a powerful approach to the improvement of the system as a whole”.

The report was commissioned by the government following the Francis report into care failings at Mid Staffordshire Foundation Trust. One of the questions it was asked to consider is whether there should be criminal penalties for staff who fail to tell patients about mistakes in their care.

Salford Royal Foundation Trust chief executive David Dalton, who chaired the review group’s sub-committee looking at criminal sanctions, said: “The issues concerning regulation and closing legal/ enforcement gaps are necessary but not important. The real shift signalled by the report is to listen and use measurement for improvement and learning and not for top down performance management and blame.”

Lawyers have told HSJ while the Mental Capacity Act had led to prosecutions of individuals working on the front line there was little precedent for the prosecution of organisations or senior managers.

Bevan Brittan partner Stuart Marchant has represented a number of social care organisations being prosecuted under section 44 but on all occasions they have been acquitted.

He said in theory a director could be prosecuted if they were aware of an act of wilful or reckless neglect or mistreatment occurring on more than one occasion and had done nothing to stop it.

However, he said the introduction of the new offence was likely to lead to more members of the public making complaints to the police about frontline hospital care where there was a perception patients had been abandoned and were not receiving the required care.

Partner in healthcare regulatory law at DAC Beachcroft Corinne Slingo told HSJ all the prosecutions she was aware of under section 44 had been of individuals involved in direct patient care.

She said: “It becomes too difficult to find the person who’s halfway up the food chain who may have made a reckless decision that led to the neglect. The threshold would have to be very high to try and get criminal liability.”

In the example of neglect occurring on an under-staffed ward Ms Slingo said the ward manager would have to have made no effort to fill the vacancies on a shift or failed to carry out any risk assessment to be considered wilfully negligent or reckless.

“The offence is intended to be something that can deal with people whose delivery of care is so woeful as to be categorised as ‘criminal’ - these people are frankly in the wrong job and should not be working in healthcare,” she added.