Corporate Manslaughter Act - do or die

An NHS body (but not an individual within it) will be guilty of an offence if the way its activities are managed or organised:

• causes a person’s death and

• amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

An organisation will only be guilty of an offence if the way its activities are managed or organised by its senior management is a substantial element in the breach of the relevant duty.

'Senior management' means those who play a significant role in:

• making decisions about how the whole or a substantial part of its activities are to be managed or organised or

• the actual managing or organising of the whole or a substantial part of those activities.

This relates to the duty owed by an organisation under the law of negligence:

• to staff or others working for the organisation or providing services for it
• as an occupier of premises
• in connection withthe supply by the organisation of goods or services;the carrying out of any construction or maintenance operations;the carrying out of an activity on a commercial basis;the use or keeping of any plant, vehicle or other thing
• to a person who is someone for whose safety the organisation is responsible. This includes patients in prison, a young offenders' institution or remand centre and patients detained under sections 2, 3 and 137 of the Mental Health Act.

There are some exceptions. First, any duty of care owed by a public authority (which includes an NHS body) in respect of a decision as to matters of public policy, including the allocation of resources or weighing of competing public interests is not a relevant duty of care.

Second, organisations only owe a duty of care in the way they respond to emergencies with regard to their employees/those working for them or as an occupier. The exception does not cover the way in which medical treatment is carried out but it does cover decisions regarding the order in which people are treated.

Emergency circumstances are those that are present and imminent and are causing or likely to cause serious harm or a worsening of such harm or are likely to cause the death of a person.

Serious harm means:

• serious injury to or serious illness (including mental illness) of a person;
• serious harm to the environment;
• serious harm to any building or property.

Call to action

As you can see, most activities of an NHS body will fall within the act. Executive directors, non-executive directors and senior managers are all affected. They need to be aware of the impact this act has on them. While they will not be prosecuted, they could be called to give evidence.

Guidance issued by the Department of Health, professional bodies and the Health and Safety Executive take on even more importance. If they have not been followed, there will need to be a good reason why. The actions of senior management, the existence of policies, systems, practices, procedures and attitudes will be intensively investigated.

Unlimited fines can be imposed. Other key issues for NHS bodies will be the negative publicity, the stress on staff involved in a prosecution and the time which will taken up.

Governance should be at the top of the agenda for NHS bodies in any event. However, we recommend that all NHS bodies should review their risk management, quality and safety assurance policies and procedures. You must ensure that all staff who need to be trained are trained and supervised and that changes in practices are communicated and acted on.

It will be interesting to see what changes to practices this Act encourages and whether there will be an increase in prosecutions following its implementation. The eight months before it comes into effect are a time to review policies and procedures, systems and practices.

Jill Masonis a partner at Mills & Reeve LLP. For more information call 0121 456 8367 or e-mail jill.mason@mills-reeve.com