The Corporate Manslaughter and Corporate Homicide Act 2007 has caused a stir in boardrooms across the land.
Although the act, which came into effect on 6 April, does not impose any new duties on companies, it certainly seems to have raised the profile of health and safety and the potential for organisations to cause deaths through negligence as a potential topic for boardroom discussion.
Of course, the act is really a much-delayed response to high-profile incidents in the UK where large numbers of people have lost their lives, such as the fire at King's Cross Underground. As such, it might be thought that it would have little to do with an NHS trust.
However, while it does not impose new duties, the act does change the basis on which manslaughter convictions can be made against organisations, and it does create a new offence in addition to those already in place under the Health and Safety at Work etc Act 1974.
It is these two changes that I think have grabbed the attention of board members, for the act reforms the law so that organisations of any size may be held liable for the new offence of corporate manslaughter. And in this case, for "organisation" read "the board".
In the past, there was a common law process that allowed individuals to be prosecuted if it could be proved that they were culpable for manslaughter due to gross negligence, but now the actions of the board as a corporate body will come under scrutiny.
The aim of the act is to make it easier to hold to account and prosecute organisations whose gross failure to manage health and safety results in a death. Unlike health and safety breaches, investigations under the new act will involve the police and the Crown Prosecution Service. This could also be a "double whammy" because the Health and Safety Executive will carry out a parallel investigation to look for breaches of health and safety law.
Focus on safety
I believe boards are right to be concerned about the new act and the extension of culpability to the corporate body, but NHS trusts that take the issue of health and safety seriously and meet their legal obligations are unlikely to face prosecution. As someone who has responsibility for encouraging and assisting better compliance with health and safety legislation, I welcome this opportunity for boards to shine the spotlight on their current health and safety management systems.
I have been asked frequently over the last couple of months what NHS organisations should be doing to make sure they do not fall foul of the new act. My advice has been that they should review their current compliance and ensure a renewed focus on keeping health and safety management systems effective and well communicated.
It is particularly important in light of the new act to look at how the senior management team manages and organises health and safety activities and how responsibility is defined at all levels of the organisation, right up to the board.
Responsibilities, particularly those of senior management, should be set out in writing and there should be a health and safety director at board level to ensure that the subject is kept on the board's agenda. A record should be kept of all meetings where health and safety is discussed and all action points should be completed.
The Corporate Manslaughter and Corporate Homicide Act is a useful new tool for ensuring the safety of staff, patients and visitors in the NHS. The only organisations that need to fear its introduction are those that have failed to take seriously the health and safety of those for whom they are responsible.