Criminalising clinicians is not the answer to care failure or neglect

It has been widely reported in the last few days that doctors, nurses and managers will face jail if they neglect patients (see for example http://www.theguardian.com/society/2013/nov/16/doctors-face-jail-if-patients-mistreated). Press coverage has suggested that this links back to both the Francis Report into Mid-Staffordshire and the Berwick Report into patient safety (the former is correct, the latter, not really, as I’ll come back to). The idea is that, by putting in place criminal sanctions, a deterrent will be put in place to prevent the wilful neglect of patients. I think this is the wrong way to go about this.

The NHS does have a problem in terms of care provision. Part of this is sheer scale – when you have that many organizations all of which are providing NHS care, there will be some clinicians somewhere not doing a job. They may even be engaging in wilful neglect. But sadly, there will be poor care somewhere. The question is, how can minimise poor care as much as possible?

The government plan to make neglect a criminal offence depends upon such an offence being a deterrent. But just about the most robust finding we have in psychology is that, if you want people to do things better, you should appeal to their intrinsic motivation rather than by putting in place extrinsic rewards or sanctions. In more everyday language, if you want people to do a good job, you should appeal to people’s pride in doing a good job rather than trying to pay them to do it, or by threatening them if they don’t. This finding applies double when you are dealing with highly-qualified professionals. We want our clinicians to do a good job, so we need to have systems in place that appeal to their pride in caring, not trying to pay them to do it better, or threatening should their care standards fall. Of course we need systems in place to hold clinicians to account for the care they provide – but threatening them with jail really isn’t the answer.

A key question for me is why does bad care happen? How is it that people who became carers with probably the best of intentions end up neglecting patients? The answers are not straightforward. It can be the result of having to work in dreadful circumstances, brought on by a lack of resources and dreadful leadership. It can be the result of gradually falling standards due to the tolerance of poor care from others. We need a great deal more research to really understand what happens when care fails. But threatening people with jail should they fail to provide good care on the grounds that it will act as a deterrent ignores how and why bad care was being provided in the first place. It assumes that carers are making rational decisions to neglect patients, when the real situation is always more complex and difficult than this.

A second key question is whether the principle of prison-based deterrence ought to apply to our policymakers. If we are going to prosecute carers, then why aren’t we prosecuting government ministers for neglect in policymaking, leading to an NHS reorganization that was not based on research, which wasted billions of pounds, fragmenting care, and demoralising staff? If the government are so sure that deterrents work, why aren’t they making themselves subject to them too? Or is it, perhaps, that by sending a few lowly-paid nurses to jail (as has happened at Mid-Staffordshire, under existing health and safety laws) we can pretend we have dealt with care provision problems and move on, rather than looking harder and thinking this through more carefully?

Francis did recommend that neglect of basic standards be a criminal offence. Berwick was much more circumspect – I read his findings in suggesting that, only in extreme cases should criminal proceedings be used, as expressing the bare minimum agreement with Francis rather than supporting the earlier report. Berwick talks instead about the collective responsibility of care teams, and about supporting carers – the language of punishment isn’t really a part of his report. I think he was right in this. By appealing to the reasons why people became carers in the first place, by supporting them in their jobs, and making sure they have the resources they need to do their job, then we have the best chance of minimising neglect and reducing care failure. Sending people to jail won’t help.

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