Corporate manslaughter - know the law

The Corporate Manslaughter and Corporate Homicide Act 2007 comes into force on 6 April 2008. David Firth explains how trusts should prepare themselves

The Corporate Manslaughter and Corporate Homicide Act 2007 soon comes into force, with implications for health bodies and their senior managers. Organisations should act now to identify the risks that may give rise to liability and to put in place systems to manage these risks effectively.

Your organisation will be guilty of corporate manslaughter if the way it manages or organises its activities causes a person's death and amounts to a gross breach of the duty of care owed to that person. Almost all of a healthcare body's activities will fall within the ambit of the act. 

Criminal liability only arises if the way an organisation's activities are managed and organised by its senior management is a substantial element of the breach of duty. 'Senior management' is defined as those who play a significant role in making decisions about the management of the whole or a substantial part of their organisation's activities, and those who actually manage or organise those activities.

Robust procedures

As the definition extends beyond the board of directors, you should ensure, where management of a specific activity is delegated outside the board, that the manager is competent to take on that role, receives appropriate support and that he or she and the board make appropriate use of a robust reporting procedure.

Additionally, all managers should closely examine their job title and job description. Not only should they be aware of the extent of their role, but they should also ensure that they are in a position to discharge their duties effectively. 

An organisation convicted for corporate manslaughter will be subject to an unlimited fine, almost certainly in excess of £100,000.

There is no individual criminal liability under the new act. Senior managers cannot be convicted of corporate manslaughter, although they may be convicted as individuals under the Health and Safety at Work Act. Arguably, the real impact will be the damage that an investigation, prosecution and conviction will cause to an organisation's reputation and that of its senior managers. 

Solid defence

In any corporate manslaughter trial, the jury will consider whether the evidence shows that the defendant failed to comply with health and safety legislation relating to the alleged breach. An organisation that can demonstrate that it identified and managed risk in way consistent with its Health and Safety at Work Act 1974 obligations cannot be convicted of corporate manslaughter. 

In the event of an unexpected death, you will need to be able to demonstrate to the investigating authority - or the jury at trial - that a culture of safety is firmly in place in your organisation. This should be accompanied by a well thought-out handling strategy, providing co-ordinated responses to the investigating agencies, the victim's family, staff members and to press interest.

Taken together, these factors could help counter the impression that any unexpected death that does occur is attributable to gross management failure and avoid the time, cost and damage to corporate reputation that would follow a conviction for corporate manslaughter.