Call for clarity on "wilful neglect" offence

THE BMA is calling for clarity on the proposed new statutory offence of wilful neglect of patients by healthcare professionals.

Clause 17 of the Criminal Justice and Courts Bill currently before Parliament would make it "an offence for an individual who has the care of another individual by virtue of being a care worker to ill-treat or wilfully to neglect that individual".

In a Parliamentary brief on the amendment, the BMA stated that it is supportive of the introduction of the new law but "also remains watchful and cautious in how proposals are to be implemented and how this may affect doctors and other healthcare professions".

It further states: "The vast majority of those who serve in the NHS strive every day to act to the best of their abilities. However, misconduct can occur and deserves censure, although we believe that recourse to criminal prosecution should be used rarely."

The BMA worries that the fear of prosecution could deter a professional duty of candour to report near misses that could have led to death or severe harm, as well as actual harm. "The development of a culture where such reporting is the norm requires employers to establish clear, no-blame, incident reporting systems from which to learn and improve. The threat or over-use of criminal prosecution is likely to deter the development of such a culture."

The BMA believes that should the offence become law it is imperative that the Crown Prosecution Service develops clear guidelines as to the circumstances that might lead to possible prosecution and how available evidence will be assessed in order to make that decision.

In the recent Lords debate, Professor the Baroness Finlay of Llandaff proposed an amendment to clause 17 of the Criminal Justice and Courts Bill to provide that an offence would be triggered only when the treatment "amounts to serious and substantial departure from the duty owed by the care worker to the individual".

She expressed her worry that the existing wording of the bill could result in "hundreds of additional criminal investigations of healthcare professionals, including doctors".

"There is a concern that the police would have little option but to investigate any doctor accused of ill treatment or wilful neglect, even in those cases where charges or prosecution might appear unlikely."

Health minister Lord Howe has sought to counter such concerns. He insisted: "Care workers need have no fear that being open and honest when such an accident or mistake occurs will place them at risk of prosecution under the offence... I cannot see how a doctor who can demonstrate that they have followed appropriate clinical practice and professional standards in exercising their clinical judgment would fall prey to this offence."

BMA council chair Mark Porter responded: "While we are pleased Lord Howe acknowledges that doctors who are open and transparent about clinical errors will not face the risk of criminal prosecution, we hope the guidance that will accompany this legislation will clearly set out the issues that may give rise to prosecution.

"This will be important not only to assist the Crown Prosecution Service but to allay fear of increased prosecutions for errors and provide healthcare workers with the assurances they need to encourage incident reporting."

The BMA has said it will continue to monitor the progress of the bill and its implementation.

Source: BMA News