Wilful neglect or mistreatment?

On 11 June 2014, the government published its response to the consultation on the proposed new criminal offence of ‘wilful neglect or mistreatment’.

The consultation, which opened in February 2014, followed the announcement
in November 2013 that the government would be creating this new offence for health workers whose standards of care have fallen short in the most extreme cases. Health secretary Jeremy Hunt intended to implement measures for improving standards of care, following the serious failings
at Mid Staffordshire NHS Foundation Trust.

The term ‘wilful neglect’ can be applied where one is seen to be recklessly acting without due care or regard for a patient’s safety or without primarily putting that person’s needs first. In context, such an offence will be made out if the healthcare worker neglected to do what they should have done in treating the patient, regardless of whether it ultimately resulted in the same outcome.

Currently, a patient who feels they have been subjected to negligent treatment while under NHS care will have recourse to compensation through the
civil courts. That claimant must show that on the balance of probabilities, their loss was caused by the negligence of healthcare workers.

Proving negligence

If those criteria are met, they
will be entitled to compensation for the damage suffered and losses incurred.

However, if the evidence is such that there was proven negligence, but that the same outcome would in fact have occurred, they might not be entitled to any compensation and it will be felt that there are no real consequences for the healthcare worker(s) concerned.

With wilful neglect as a criminal offence, that same claimant will have an alternative means of seeing justice done. The recent consultation considered the details of these new sanctions. It is anticipated that relevant new legislation will be implemented during the course of 2015.

The offences will apply, with some exclusions, to all formal healthcare provision and to adult social care provision in both the NHS and private sector. They will also apply to individuals and organisations paid to provide or arrange for the provision of these services, but with the offence for organisations formulated differently from that for individuals.

The consultation report concludes that penalties for individuals will mirror those attached to the offence of ill-treatment or wilful neglect
of persons without capacity.

In addition, for organisations, penalties will include such things as fines and/or the issuing of publicity orders
and remedial orders, similar
to those available in respect
of convictions of corporate manslaughter and similar to
the provisions of the Care Act 2014 in which they are applied in instances of providing false
or misleading information.

Of course, the standard of proof is stricter in the criminal courts than in civil courts. This will ensure that only the most serious acts of mistreatment
are dealt with in this way.

Professional concerns

It could be said that a ‘climate
of fear’ may arise among health and social care workers following the creation of such offences. There is not the risk of a custodial sentence if a civil claim for clinical negligence is made out. The gravity of the criminal offence of wilful neglect, therefore, is far greater.

That said, in the more serious cases there are already existing sanctions that may be used against medical staff in cases of serious misconduct such as licence revocation by the General Medical Council, so particular failings will not go unnoticed. Healthcare workers should already be concerned about the consequences if things go wrong.

Overall, a patient who has been let down by the NHS will appreciate wilful neglect and mistreatment as an offence. It’s
a way of seeing justice done – whatever the resulting loss
was to them.

A guilty verdict for wilful neglect will be limited to the most serious circumstances. Therefore, in general, if they are prioritising the patients’ needs above all else, as they should
be, healthcare workers should not be any more concerned for the consequences than they
are now. SJ

Laura Thompson is a solicitor at IBB Solicitors