Recommendations for a new criminal offence based on inadequate patient care
| Francis Report | Berwick Report |
|---|---|
| Breach of ‘fundamental standards’ of minimum quality and safety (regulation 28) | ‘Wilful neglect’ or ‘wilful mistreatment’ by care provider i.e. intentional, reckless or reflects a reckless ‘couldn't care less’ attitude (regulation 10) |
| Where serious harm or death has resulted to a patient (regulation 28) Where no actual harm but which have exposed patients to a continuing risk of harm to which they would not otherwise have been exposed should also be ‘regarded as unacceptable’28 (regulation 28) | Actual harm or death need not be shown |
| Offence can be committed by an individual or organisation | Offence can be committed by an individual or organisation |
| Defence for the provider to prove that all reasonably practicable steps have been taken to prevent a breach, including having in place a prescribed system to prevent such a breach (regulation 29) | Only failure to create a reasonable safe system of care, or failure to act within its own system of care, or failure to adequately control those systems, or a reckless disregard for the well-being of patients should be sanctioned, and not when the organisation has taken all reasonable steps to achieve compliance (emphasis in original) |
| Breach of fundamental standards should result in ‘regulatory consequences attributable to an organisation’ in the case of a system failure (regulation 28). A service incapable of meeting fundamental standards should not be permitted to continue | Organisational sanctions might involve the removal of the organisation's leaders and their disqualification from future leadership roles, public reprimand of the organisation and, in extremis, financial sanctions but only where that will not compromise patient care |
| Breach of fundamental standards should result in ‘individual accountability’ where individual professionals are responsible (regulation 28) | Individual should not be convicted unless shown that failure was the fault of the individual alone and the individual was acting in a reckless or wilful manner Individual sanctions should be on a par with those in section 44 of the Mental Capacity Act |