From 6 April NHS organisations could be prosecuted for corporate manslaughter if someone dies in their care, but different interpretations of the law mean trusts may be unclear about their responsibilities. Ingrid Torjesen attempts to unravel the new act
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The Corporate Manslaughter and Corporate Homicide Act, which comes into force on 6 April, will mean trusts will become criminally liable for deaths where there is a “gross breach of the relevant duty of care” on account of the way their activities are organised or managed.
Lawyers disagree on exactly how the act will apply, but its introduction will inevitably lead to more police-led investigations into health and safety offences and is likely to see more trusts and their senior managers prosecuted under existing health and safety at work legislation.
Should trusts be worried about the change? The act states that organisations have a duty to everyone in their premises; for trusts this will mean staff, contractors, patients and their visitors.
Trusts could face prosecution for a host of negligent actions, including mass outbreaks of C difficile, where poor management is to blame.
David Sinclair, a solicitor at Hempsons and chartered member of the Institute of Occupational Safety and Health, gives a less obvious example, saying trusts could be liable if they have not done enough to secure their windows.
The NHS Estates Health Technical Memorandum No 55 Windows (1998) says that for safety reasons, windows should be fitted with restrictors to prevent them opening more than 100mm. Yet in the two years between 2002-03 and 2004-05, seven people died falling or jumping from windows in NHS buildings. “In every one of these fatalities, you find the restrictor was missing or was damaged or defective,” Mr Sinclair says. “Corporate manslaughter could have been brought against those trusts because they knew they should restrict their windows.”
Trusts that do fall foul of the new law face fines and could be ordered to make a public apology.
Tim Hill, a health and safety lawyer at Eversheds, expects these publicity orders to be used extensively in cases involving the public sector. “The courts know they can’t fine millions of pounds because that takes away from patient care and services, so effectively they make the trust and the directors of the trust put their personal names to a full page advert which says we have failed in the following way and are being fined x thousand pounds and we are very sorry.” That will create a huge pressure in boardrooms, he adds. “The fear of that is almost greater than a big fine.”
The act does not distinguish between different types of trusts, but some lawyers think foundation trusts could find themselves facing different treatment because they enjoy greater financial freedoms.
Mr Sinclair says: “There is a perception in some quarters that they are more akin to a private company, so the jury is perhaps more likely to convict them. They might not be as reticent to convict a foundation trust as perhaps a community mental health trust, which is at the bottom of the pile in terms of funding.”
Although organisations found in breach of the act could get unlimited fines, sentencing guidance recommends fines in the range of 2.5 to 10 per cent of turnover. Courts have generally taken the approach that there is little point imposing high fines on a public body. But Shaun O’Malley, a senior solicitor at Mills & Reeve, says in some cases foundation trusts could be hit with higher fines because they are seen as more commercial.
There are exceptions to the duty of care outlined by the act, for example, decisions by public authorities on matters of public policy, such as the allocation of resources. This means decisions not to fund treatments will not fall under the act.
Organisations that carry out “exclusively public functions” will be exempt from duties in relation to the supply of goods and services, commercial activities, construction and maintenance and plant or vehicle management.
However, there is debate about how this will play out in the health service. Joanna Trewin, an associate at Hill Dickinson, says some NHS functions are “exclusively public”.
“It will be interesting to see whether protection is afforded,” she says. “It is clearly arguable that the statutory functions of primary care trusts to regulate GPs under the Performers Lists Regulations 2004 is an exclusively public function, while the commissioning of services through the independent sector or the provision of services (such as district nursing) would not be.”
But Mr O’Malley does not think the exemption will apply to healthcare because “exclusively public function” is “defined as a function that falls within the prerogative of the Crown”.
David Sinclair agrees but says this will be an argument that will be used in court and only settled with an Appeal Court ruling.
Another exemption is around “emergency circumstances”. The act says that during emergencies, organisations will owe a duty of care only to those working for them and as the organisation occupying certain premises. It specifies triage decisions will be exempt but not medical treatment.
It defines an emergency as present or imminent circumstances that are causing, or are likely to cause, serious harm or worsening of such harm, or death of a person. Unforeseen disasters, such as a train crash or flood, are included but the threshold for accident and emergency services is unclear.
Mr Sinclair says: “What the exemption doesn’t cover is A&E on a Saturday night where the unit says ‘we are absolutely swamped’. Unlucky. That is something you should have thought about and had plans to deal with because it happens every Saturday night.”
Another potentially contentious element of the act is that it says an organisation will only be guilty of an offence if the way its activities are managed or organised by its senior management plays a substantial factor in the breach.
Julian Topping, head of workplace health at NHS Employers, admits the definition of senior manager is a matter for debate. “We had discussions with the Home Office a couple of years ago about this and obviously we will have to wait for the first piece of case law and hope that there is some sort of definition in there.
“You have to be someone in a position to make the sorts of decisions that ultimately, somewhere down the line, result in somebody losing their life. In the NHS you still have to be pretty senior in order to do that.”
But Mr Hill says the use of “senior” is misleading and there has been “a definite lowering of the bar”.
“You don’t have to link it to an individual any more, which is probably the biggest change. The way I have explained it to trusts is that effectively anyone who is a manager, you have at least to examine in a lot of detail what their day-to-day role involves, and if they are responsible for a substantial part of the organisation, have got their own little division, their own little pot of money for what they do and they make their own decisions and a problem is traced back to those decisions in practice, whatever their title happens to be - mid-manager or senior manager - I think that is splitting hairs.”
Although individuals cannot be prosecuted under the act, they can under the Health and Safety at Work Act. Mr Hill says it is inconceivable that the two won’t be used together. “Where an organisation is prosecuted for a breach of health and safety law, the Health and Safety Executive will always consider whether individuals should also be prosecuted.”
The Centre for Corporate Accountability lists seven companies and 16 directors convicted of manslaughter under existing legislation. The Health and Safety Executive anticipates 12 prosecutions a year under the Corporate Manslaughter Act, although several lawyers told HSJ they did not think it would be that high.
Mr Hill says what makes the act scary for trusts is the investigation stage. “These will be police-led investigations and you may be the best run trust in the world, but you will still have to go through a very disruptive, very in-depth investigation. They will send a huge team in, they will turn your organisation upside down, almost regardless of your ongoing duties to provide care and services.”
He says there could be “an enormous fear factor” for the staff. “They will start at the bottom and take witness statements from your staff on the ground. They will then start interviewing under caution everybody from manager level upwards. To interview somebody under caution, you have to suspect that somebody may have committed an offence, so you have to then look at possible individual offences simply to talk to people.”
He adds that the Appeal Court had recently ruled the test for individual liability was too high.
The test is now: what action should have been taken that would have prevented this death, was the individual director aware or ought he/she to have been aware of those facts, and if he/she wasn’t but should have been, what appropriate investigation should the director have made to establish those facts?
Last year the Institute of Directors and Health and Safety Commission published Leading Health and Safety at Work: leadership actions for directors and board members . This contains a checklist for the organisation and individual managers and clearly states that compliance “could be a relevant consideration for a jury” under the new act.
Mr Sinclair says: “It is a foregone conclusion that the prosecution is going to be carrying this into court and saying every director is aware of this.”
“There are a number of trusts who don’t even employ health and safety managers. How are you going to argue in a court that you managed health and safety extremely well when you don’t have a health and safety manger in your trust or you’ve amalgamated health and safety with something else and the person doing it has absolutely no training?”
Mr Hill adds: “We are regularly saying you need to have this as a high-level board issue, along with the other facts, figures and targets that get reviewed monthly or quarterly.”
Mr Sinclair says whether a prosecution was successful or not, an investigation under the act was something that a trust manager should seek to avoid at all costs.
“Your name will be up in lights and while I am sure it will not be career ending, I am sure it will be career stopping. Your chances of climbing to the top of the NHS ladder will diminish dramatically.”