Published: 02/05/2002, Volume II2, No. 5803 Page 12 13
Plans to alter the existing laws on corporate killing - currently being proposed by the Home Office in the wake of the Paddington rail crash and other disasters - could present an enormous threat to public bodies like the health service, according to a recent conference organised by the British Safety Council. But the worry is that no-one really knows what it will entail, delegates heard.
The proposed changes were launched by the government in May 2000, based on a Law Commission report in the wake of public outcries following the difficulties of succeeding with manslaughter charges in highprofile non-health service cases.
Since then, there has been concern about how any new laws may affect the health service.
'There is a lot of confusion over when and whether this law will be enacted, ' Safety Council director general and keynote speaker David Ballard said. 'There is also confusion over who will be affected.
Corporate killing will apply to the organisation, but other related offences of reckless killing or killing by gross carelessness may apply to doctors or nurses.'
Other recent cases, such as the Bristol heart inquiry and the death of 31-year-old Laura Touche following the birth of her twins by Caesarean section at the Portland private maternity hospital, have drawn attention to the potential impact on the health service. The Portland was criticised for its 'catastrophic error' in the Laura Touche incident and has made a£750,000 out-of-court settlement.
With the current law of corporate manslaughter, the problem has always been demonstrating the guilt of an identified individual as the 'controlling mind' of the relevant organisation.
Ann Robson, a partner in the litigation department of DJ Freeman solicitors, who advises NHS bodies and recently ran a seminar for acute trusts on the subject, is concerned about how hospitals will cope with a corporate killing law.
'There will be a very high standard of safety control, which most trusts do not come anywhere near at the moment, ' she says.
'If a trust does not buy a certain drug because of budget cuts and a person dies as a result, it would have to show that it made a reasoned decision, that it considered it at a fairly high level and show why it decided not to buy the drug. It would be a move away from it being in control of spending money towards having to show why it spends in a certain way. This would apply to everything, from buying trolleys to how many people are employed and the type of building used.
'A trust would be required to show it acted reasonably, but this may be difficult because corporate killing would be a crime and a jury may be making a decision on guilt. It is difficult to predict how a jury may react. The concern is that a jury could hold a trust up to an almost impossible standard because the public gets so excited about cases of large organisations against individuals.'
Corporate killing will, of course, not only apply to patients but also anyone else for whom the trust is responsible, including employees and visitors to hospitals. Lawyers point out that health and safety laws currently give the Health and Safety Executive strong powers to fine individuals and companies, but that they are not used often or strictly at least in part because there are not enough HSE officers.
'Good organisations are already taking sensible safety precautions, but the bad ones are likely to carry on with poor practices regardless of new laws, 'warns Ms Robson.
NHS Confederation policy manager Alastair Henderson, another speaker at the conference, thinks that a badly framed corporate killing law may backfire and undermine safety procedures.
'We understand the thinking behind the proposals and the need to ensure accountability, but we are worried that this will frighten people into closing down and not opening up about problems, accidents and near misses, ' he says.
'The best way for us to ensure safe procedures is for staff to feel that they can be open without incriminating themselves or others, so weak points can be corrected. We can improve systems only if there is open accounting.'
Mr Henderson supports the proposed law - with reservations.
'There must be absolute clarity on the sorts of healthcare circumstances to which it would be applicable. There needs to be recognition that many procedures in healthcare are inherently risky. The proposal needs to be aimed at catastrophic failures of safety systems.'
Claimant solicitor Russell Levy, joint head of the clinical negligence department of Leigh Day, broadly agrees with much of what Mr Henderson says.
'We need to get away from the blame culture, ' Mr Levy says.
'Corporate killing laws may tend to try to blame certain individuals, whereas in the NHS mistakes are often organisational mistakes.
In any event, it is incredibly rare that a healthcare mistake goes beyond ordinary negligence to be considered a crime.'
He adds that 'a corporate killing law is a good idea, but only insofar as it applies to upper management, not if it scapegoats clinical staff '.
With the consultation period for the proposals long gone, the government seems to be cooling its initial enthusiasm for the measures. Home Office head of criminal policy Valerie Keating, addressing the conference, was unclear about when any new laws may be enacted.
Despite the uncertainty, it cannot be bad that safety is being increasingly addressed as a result of corporate killing law proposals. 'It is helping to put safety up the agenda, ' Mr Ballard says. Just how far this will affect the NHS, meant to be looking forward to a brighter future thanks to chancellor Gordon Brown, remains to be seen. l Tough talking: what the government proposes lA special offence of corporate killing will apply when the conduct of an undertaking (including trusts and companies) in causing death falls far below what could reasonably be expected.For the offence to be committed, the risk need not be obvious and the defendant need not be capable of appreciating the risk.A death will be regarded as having been caused by the conduct of the undertaking if it is caused by a 'management failure', so that the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by its activities.This will be the case even if the immediate cause is the act or omission of an individual.There would no longer be the need to identify individuals who make up the 'controlling mind'.Guilty undertakings would be fined or perhaps closed and managers may be prevented from holding management positions ever again.
lndividuals within an undertaking could still be liable for the offences of reckless killing (carrying a penalty of up to life imprisonment) and killing by gross carelessness (carrying a penalty of up to 10 years' imprisonment) as well as the undertaking being liable for the offence of corporate killing.
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