Extending the scope of wilful neglect will result in paternalistic nursing care

The recommendation that the criminal offence of wilful neglect be extended to protect all patient groups may seem a proactive way for the Government to begin to restore public confidence in nursing following the Mid Staffordshire NHS Trust Inquiry. However, the experience of the courts hearing cases of wilful neglect in relation to adults who lack capacity show that they are complex trials and, despite several appeals, still lack clear guidance that nurses can apply in practice to avoid prosecution while still promoting the autonomy of patients. In this article the author reviews recent cases of wilful neglect to come before the Court of Appeal and argues that rather than offering protection to patients, criminalising a failure to act is more likely to result in paternalistic interventions, with nurses insisting on providing care because they fear prosecution if they fail to do so.