Published: 14/07/2005, Volume II5, No. 115 Page 38

The Corporate Manslaughter Bill heralds a change in the legal landscape for MRSA liability, so understanding relevant legislation is crucial. Sean Elson explains

A recent flurry of draft bills and press statements, together with the trial of a council architect for the manslaughter of seven people due to Legionella, may have confused possible developments concerning hygiene management, and MRSA in particular, with the likelihood of prosecution for manslaughter.

Recent announcements on both corporate manslaughter and the driving up of hygiene standards in the health sector should be considered separately.

The Corporate Manslaughter Bill creates an offence of corporate manslaughter where the way in which any of an organisation's activities are managed and organised by its senior managers causes death and amounts to a gross breach of a duty of care.

The draft bill, which applies to public health organisations, removes the existing requirement to obtain a conviction for manslaughter of a senior individual who represents a 'directing mind' before the company itself can be convicted. That has been the primary cause of the failure to convict organisations of offences of corporate manslaughter.

The draft bill does not allow for prosecution in cases related to public policy issues, such as the decision to allocate finite resources to one healthcare priority over another, and as it is the organisation that is prosecuted, nobody is at risk of imprisonment.

The questions of what is gross negligence, and more importantly whether 'management failure' caused the death, will provide most problems for prosecuting authorities. For example, it is likely to prove extremely difficult to move beyond simply showing poor management of MRSA or other issues to proving a gross failure causing the death of an individual.

The proposed corporate manslaughter legislation does not alter the position of individual managers and chief executives. It does not create a new offence for individuals.

Individuals' liability for manslaughter by way of gross negligence will remain, as will the problem for prosecutors of showing a causative link between alleged negligence against an individual and a death. Gross negligence manslaughter prosecutions against individuals are rare.

The government's intention to address the issue of MRSA and other hygiene issues in the Health Improvement Bill is clear. Health secretary Patricia Hewitt has indicated possible legislation to make individuals responsible for hygiene issues. The Department of Health will be issuing a new code of practice and details of consultation will follow in the summer. This will consider the issue of criminal prosecutions, but it is clear that the Healthcare Commission will be given powers to issue improvement notices requiring action on hygiene.

Until the proposed code is published, it will not be possible to clearly identify which model the government intends to introduce to make healthcare organisations or staff criminally liable for this highprofile issue. .

Sean Elson is a solicitor in the health and safety team of city law firm Kennedys.