Serious errors and neglect in the NHS should be a criminal offence, says safety expert

BMJ 2013; 347 doi: (Published 07 August 2013) Cite this as: BMJ 2013;347:f4973
  1. Nigel Hawkes
  1. 1London

A new criminal offence of recklessness or wilful neglect should be created to improve patient safety in the NHS in England, a report by a leading US expert has recommended.1

The report by a committee chaired by Don Berwick, president emeritus and senior fellow of the US Institute for Healthcare Improvement, said that the offence should apply to individuals and to organisations. But the use of such criminal sanctions should be “extremely rare” and unintended errors should not be criminalised.

Berwick was asked by the prime minister to examine how the NHS could move to “zero harm” in the wake of the damaging evidence disclosed by Robert Francis QC in his two reports on care failings at Mid Staffordshire NHS Foundation Trust.2 3 Berwick’s 44 page report was published on 6 August.

England’s health secretary, Jeremy Hunt, said at a press briefing in London to launch the report that he would give Berwick’s recommendation on a new criminal offence “very careful consideration.” But he said that his concern was that criminalising behaviour might create a culture of fear in the NHS, which was not appropriate.

Hunt said that the government had accepted Francis’s recommendation that a duty of candour should apply to both individuals and organisations, but Berwick appeared unconvinced, saying that for individuals this duty was already “adequately addressed” in professionals’ codes of conduct and guidance.

The Berwick report treads gently on NHS susceptibilities in refusing to blame NHS staff for any failings. “Blame is not helpful,” Berwick said. “Staff are trying their best.”

Hunt echoed the sentiment, saying that he had never blamed staff personally. But Berwick added that one of the faults of the NHS was that responsibility was too diffuse. “When responsibility is diffused, it is not clearly owned; with too many in charge, no one is,” he said.

Berwick’s report reserved its strongest words for the regulatory system, which it described as “bewildering in its complexity and prone to both overlaps of remit and gaps between different agencies.” It should be simplified, the report concluded, recommending an independent review in 2017 when the recent changes would have had time to bed in.

Among possible changes would be redesignating the Care Quality Commission as a non-departmental public body answerable to parliament rather than the health secretary, and the possible merger of regulators so that quality, patient safety, standards, and outcomes are vested in one body and residual responsibilities, such as market and pricing, are transferred to NHS England.

The report also cast doubt on present arrangements for public and community involvement, saying that a return to earlier models such as community health councils might be considered.

Berwick said that listening to the patient’s voice was vital—“no source of information is more valuable”—and called for transparency of information “almost without limits.”

The report danced delicately around the issue of staffing ratios, declining to specify a national figure while pointing out that operating a general medical-surgical hospital ward with fewer than one registered nurse per eight patients may increase risks substantially.

Berwick said that the National Institute for Health and Care Excellence (NICE) should review the evidence and issue guidelines, but that there should be no mandatory national standard. Rather, NICE should provide the tools and local managers would be responsible for using them to work out what staff they needed and providing them. The CQC should hold them to that responsibility.

Berwick, a long time admirer of the NHS, was upbeat in his assessment, declaring that the NHS in England had the potential to emerge over time as one of the safest healthcare systems in the world, contrasting that prospect with the reality of Mid Staffs, where “a vicious cycle of over-riding goals, misallocation of resources, distracted attention, consequent failures and hazards, reproach for goals not met, more misallocation and growing opacity as dark rooms with no data came to look safer than ones with light.”

Calling for a culture of learning and transparency, Berwick said that the potential was phenomenal, “but we can afford no bystanders.”

Hunt called the report “fantastic” and a strong endorsement of all that the government had delivered since the second Francis report. “The NHS could lead the world in patient safety,” he said. “Nothing less is good enough and the government will back our hardworking NHS staff to make this a reality.”


Cite this as: BMJ 2013;347:f4973


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