Currently in the UK, when health care workers are "unequivocally guilty of willful or reckless neglect or mistreatment of patients" that is not criminal behavior but Dr. Jo Bibby, Director of Strategy at the Health Foundation, writing in BMJ, says the proposal, made in response to the Francis inquiry, will close a gap in the law and is one of many important steps to improving patient care, though won't prevent any deaths.

The Francis Inquiry was an examination into the failings of the NHS after incidents at Mid-Staffordshire NHS Foundation Trust revealed appalling suffering of many patients within a culture of secrecy and defensiveness. The 1,782 page report  highlighted a whole system failure and had 290 recommendations with major implications for all levels of the health service across England. 

Bibby likens it to other legislation to curb behaviors, including the drink driving laws, compulsory wearing of seatbelts and the recent smoking legislation. She argues that without the Children and Young Persons Act 1933 and Mental Capacity Act 2005, it is unlikely that offenders would have been prosecuted under general assault laws. Plus, there is "no evidence to suggest that the introduction of the Mental Capacity Act has generated a culture of fear or inhibited candor or cooperation between healthcare workers". Bibby asks why everyone receiving health care can't be afforded the same protection as patients covered by the Mental Capacity Act. 

Health care professional groups say they are worried about being prosecuted where harm has occurred through circumstances outside their control, but Bibby stresses that the proposed legislation would apply "only to 'willful' neglect" but concedes that this legislation "wouldn't be without potential pitfalls" and stresses the importance of clarity and on "building […] the understanding required to enable people to work in safe systems of patient care".

On the other side, Dr. Christine Tomkins says that sufficient sanctions exist already and "such a move would be likely to be detrimental in a number of ways."

As CEO of the Medical Defence Union in London, Tomkins says that sanctions are "already in place for healthcare professionals accused of 'willful neglect'". She asks how new offenses will be defined when it is not clear "whether [it] would involve only 'neglect' or extend also to 'mistreatment' or 'ill treatment'". 

Tomkins says that it is unrealistic to say that a sanction will be applied rarely as "when something goes wrong there are often attempts to bring professionals to account in as many ways as possible" - political grandstanding is going to happen when government controls medicine. She adds that the police and Crown Prosecution Service would have to get involved, often taking years. 

She believes that investigations which can "last months and sometimes years" would cause "enormous distress and disruption to those accused and to the NHS generally, affecting patient care".

Tomkins says that doctors already follow the GMC's guidance of Good Medical Practice which sets out clearly "what is expected of doctors for the protection of patients" and concludes that it is "misguided" to suggest that a new sanction would be "a positive step towards improving patient safety" adding that this is "not the best way to encourage […] open culture".

Citation: Jo Bibby, Christine Tomkins, 'Would criminalising healthcare professionals for wilful neglect improve patient care?', BMJ 2014;348:g133  DOI:10.1136/bmj.g133