NHS staff should face jail in cases of “neglect or wilful misconduct”, the high profile review tasked with making zero harm care a reality in the NHS has recommended.

However, the review – chaired by President Obama’s former health adviser Don Berwick – rejected calls for a duty of candour on individual members of staff.

Professor Berwick said a requirement to tell patients about every error or near miss would lead to “defensive documentation” by professionals and become a bureaucratic burden. Instead the Care Quality Commission should require patient or carers affected by a serious incident, as defined by NHS England, to be notified and supported, he recommended.

A new criminal offence should be created for cases where individuals had demonstrated a “couldn’t care less attitude” to the treatment of patients, the review said. Professor Berwick this could apply equally to managers if they had acted recklessly.

The review recommended sanctions should be equivalent to those in section 44 of the Mental Health Capacity Act which include up to five years in prison.

The review was commissioned by the government in February following the publication of the Francis report into the care scandal at Mid Staffordshire Foundation Trust.

It brought together leading academics, patient representatives and Salford Royal Foundation Trust chief executive David Dalton and chief nurse Elaine Inglesby-Burke.

The review did not propose a minimum staffing level for nursing but supported Robert Francis QC’s recommendation that nationally recognised tools should be developed to determine staffing levels.

It also said the government should review the regulatory system for the NHS by 2017 and consider again Mr Francis’s recommendation that the economic and quality regulator was merged.

Mr Berwick, who described the review as “philosophical”, said the most important of his recommendations was that all NHS staff should be educated in quality improvement methodology.

“If I could give one recommendation to the secretary of state it would be to invest in giving people these skills…

“Continuous improvement [means] never good enough. The alternative is the tick box thinking, we are good enough, we’ve done it, we’re home. You’re never home.”

NHS England chief nurse Jane Cummings said the NHS should use the report to “move on” from the criticism over poor care received by patients in Mid Staffordshire and other places.

“We can’t forget what’s happened before but we need to use this opportunity to move on,” she said.

“The best wards, the best nurses, do sometimes make mistakes. We need to have the culture and environment where staff can be open and learn from their mistakes. If we do that listen to patients we can make that [culture].”

Berwick’s 10 recommendations:

  • The NHS should continually and forever reduce patient harm by embracing wholeheartedly an ethic of learning.
  • All leaders concerned with NHS healthcare – political, regulatory, governance, executive, clinical and advocacy – should place quality of care in general, and patient safety in particular, at the top of their priorities for investment, inquiry, improvement, regular reporting, encouragement and support.
  • Patients and their carers should be present, powerful and involved at all levels of healthcare organisations from wards to the boards of trusts.
  • The government, Health Education England and NHS England should assure that sufficient staff are available to meet the NHS’s needs now and in the future. Healthcare organisations should ensure that staff are present in appropriate numbers to provide safe care at all times and are well-supported.
  • Mastery of quality and patient safety sciences and practices should be part of initial preparation and lifelong education of all health care professionals, including managers and executives.
  • The NHS should become a learning organisation. Its leaders should create and support the capability for learning, and therefore change, at scale, within the NHS.
  • Transparency should be complete, timely and unequivocal. All data on quality and safety, whether assembled by government, organisations, or professional societies, should be shared in a timely fashion with all parties who want it, including, in accessible form, with the public.
  • All organisations should seek out the patient and carer voice as an essential asset in monitoring the safety and quality of care.
  • Supervisory and regulatory systems should be simple and clear. They should avoid diffusion of responsibility. They should be respectful of the goodwill and sound intention of the vast majority of staff. All incentives should point in the same direction.
  • We support responsive regulation of organisations, with a hierarchy of responses. Recourse to criminal sanctions should be extremely rare, and should function primarily as a deterrent to wilful or reckless neglect or mistreatment.

Berwick dashes hopes on minimum staffing levels