The government has announced plans to criminalise ‘wilful neglect’ in the health service. The proposal – part of the response to the Francis and Berwick reports into the causes of poor care – looks like a desperate attempt to be ‘seen to be doing something’.

Meanwhile, the real causes of unsatisfactory care such as understaffing remain unaddressed. As Cure the NHS campaigner Deb Hazeldine told BBC Radio 4 this morning,

 “How can we hold NHS staff to account if we don’t give them enough staff on a ward to deliver the care they want to?”

There is little evidence that health service staff who are ‘negligent’ – even, occasionally, seriously neglectful – are guilty of ‘wilful negligence’.

NHS staff are working under heavy and increasing pressure. Faults are more often systemic – pressure of work and fatigue, inadequate training, poor communication, inadequate support and insufficient resources. 

Is ‘punishment’ the best way of achieving positive results? As with children, positive encouragement and incentives for good behaviour tend to be far more effective than punishment. There is a place for sanctions, but they should be used very sparingly and for deliberate actions. 

Instead, sanctions have become the ‘new norm’ in the NHS. Financial penalties are imposed for marginal failures to meet arbitrary targets – and accepted as ‘just another cost of providing the service’. The penalties suck money and attention from frontline care – like the 70% per patient fine that A&Es are hit with, if they take more patients than they did in 2010. 

Meanwhile experienced but demoralised staff are leaving in droves – two thirds of NHS nurses considered leaving the profession last year, up from 21% a few years ago. They are tired of being blamed for the impact of the lastest damaging government reorganisation – a reorganisation their professional organisations warned about but were ignored.

The government’s response appears to be intended to ‘scapegoat’ individual members of staff for failures of policy, of management and of regulators like the Care Quality Commission to ensure the proper quality of care.

Institutions should be retraining and, where necessary, disciplining staff whose performance is not acceptable. Organisations and their senior managers should be punished for failing to do this, not the individual members of staff. Very occasionally, if unacceptable actions are ‘deliberate’ or ‘wilful’ it may be appropriate for staff to be dismissed, but this should be the culmination of a disciplinary process in which retraining and lesser sanctions are tried first.

Professional bodies should be able to take proper sanctions, rather than resorting to criminal proceedings, up to and including striking staff off the clinical register. Few clinicians are struck off or discplined by their professional organisations. It seems that under current rules the Nursing and Midwifery Council cannot strike off incompetent nurses.

The government should be addressing these concerns – not bringing in another measure that will be ineffective at best, counter-productive at worst.

Hospital Trusts need to develop a ‘no blame culture’, in which staff and the Trust might be more willing to own up to mistakes, so the root causes can be addressed, rather than disciplining or punishing the staff involved.  

The criminalisation of ‘wilful neglect’ will have the opposite effect. It may mean that a few of those who are found guilty will be ‘made to pay’ for their actions. But it may also mean that more negligence will be ‘swept under the carpet’ by institutions and staff. 

Staff will be not only more reluctant to admit their own mistakes, but also more reluctant to report colleagues. The threat of criminal proceedings will discourage whistle-blowing. It may encourage institutions and staff to sweep cases of negligence under the carpet, to avoid possible cases of ‘wilful neglect’ coming to trial. 

The real beneficiaries of this proposal, if implemented, will not be patients, but lawyers and insurers. Already almost 20% of the cost to the taxpayer of providing maternity care is insurance premiums to protect hospitals against clinical negligence claims.

In reality it seems likely the number of doctors and nurses prosecuted for ‘wilful neglect’ will be negligible and the number actually jailed will be even smaller, so the threat will be little deterrent.

There may be a few show trials early on to act as a warning to others. Such trials would be enormously expensive and waste even more public money that would be better spent on treating patients.

 The government should reconsider this daft proposal.