Caroline Barker looks at how courts will decide the penalties imposed on NHS trusts found guilty of corporate manslaughter

In January 2016, Maidstone and Tunbridge Wells Trust will go on trial for corporate manslaughter in respect of a death of a patient following an emergency caesarean section at the Pembury Hospital in October 2012. The trust has been charged alongside two anaesthetists who have been charged in their individual capacity with gross negligence manslaughter.

Since the Corporate Manslaughter and Corporate Homicide Act 2007 came into force there have been a limited number of convictions for the offence (14 at the time of writing this article) but a marked increase over the past year or so and it would appear that this will continue. The trust is the first NHS trust to be charged with the offence and it is clear that the health and social care sector is on the radar of the prosecuting authorities. Indeed, earlier this year corporate manslaughter charges were brought against a private provider of a care home in Nottingham following the death of a resident; again, the first such prosecution of a care home.

Adverse verdict

On 3 November 2015 the Sentencing Council published definitive sentencing guidelines for use in courts in England and Wales on health and safety offences, corporate manslaughter and food safety and hygiene offences. These become effective from 1 February 2016 and will be applied to all organisations and offenders over the age of 18 years old who are sentenced on or after 1 February 2016 regardless of the date of the offence. The above trial is likely to last for many weeks and should there be an adverse verdict the guidelines will be applicable.

In order for a corporate body to be held accountable for corporate manslaughter it has to be shown that the way in which its activities were managed or organised caused a person’s death (more than a minimal contribution) and this amounted to a gross breach of a relevant duty of care owed by the organisation to the deceased and this is directly attributable to a senior management failure.

The previous Sentencing Council guidelines suggested that an appropriate fine would seldom be less that £500,000 and may be measured in millions of pounds. However the new guidelines set out a clear structure that courts should follow when determining the sentence applicable in the event of a conviction with unlimited fines being available. The stakes are high.

Step 1

The first step a court will take is to determine the seriousness of the offence. They will ask:

a) How foreseeable was the serious injury?

The more foreseeable, the more serious the offence. For example, if organisations have not responded to similar near misses, this may indicate greater foreseeability.

b) How far short of the appropriate standard did the offender fall?

For example, does training fall short of the required standard or have industry standards not been followed?

c) How common is this type of breach in that organisation?

Is this an isolated event or is there systemic non-compliance?

d) Was there more than one death, or a high risk of further deaths, or serious personal injury in addition to death?

If so, the offence will be treated with greater severity.

The answers to the above will determine if there is a high level of harm or culpability (Offence Category A) or a lower level of culpability (Offence Category B).

Step 2

Courts will then look at the organisation’s annual turnover in order to determine a starting point for a fine. For health trusts the court will look at Monitor’s website and for companies they will look at annual accounts. If a company fails to provide the last three years of comprehensive accounts the court may draw the inference that the offender can pay any fine.

With NHS trusts’ turnover likely to categorise many trusts as “large organisations” (with turnover of more than £50m) the starting point for a Category A Offence is £7,500,00 but with a range of £4,800,000 - £20,000,000.

The court will adjust up or down according to aggravating features (such as cost cutting at the expense of safety or a poor record of health and safety) and mitigating features (such as evidence of steps taken to remedy problems and a good health and safety record).

Step 3

The court will look at whether the proposed fine is proportionate to the overall means of the offender whilst ensuring that the fine has the effect of punishing the offender, acts as a deterrent to others and removes any gain made through the commissioning of the offence. The fine has to have a real economic impact on the offender.

”The court will adjust up or down according to aggravating features (such as cost cutting at the expense of safety or a poor record of health and safety”

However, the court is expected to take a step back to review whether the fine should move up or down if required (for example, if the organisation has a large or small profit margin). This will prove interesting when applied to an NHS Trust, many of whom are in significant deficit, are making no surplus and trying hard to balance already limited resources.

Indeed, Step 4 requires the court to look at other factors that may justify an adjustment of the proposed fine, including the wider impact of the fine on the organisation or on innocent third parties. Such factors would be readily applicable to trusts where patient care cannot and should not suffer as a result of a large fine – although the irony is that it is likely that failures around patient care and safety led to corporate manslaughter being brought in the first place.

The shape of things to come

There are a further 5 steps that the court will follow to ensure that an appropriate sentence is handed down such as a reduction to the fine due to assistance with the prosecution and entering a guilty plea.

It is clear that many will follow the trial of Maidstone and Tunbridge Wells trust with great interest. As the first prosecution of its kind it is likely to set a number of benchmarks for future prosecutions and we await the outcome with bated breath.

Caroline Barker is a partner at Ridouts LLP