The Corporate Manslaughter Act has come into force, opening NHS organisations to possible prosecution. Andy Hopkin explains how trusts can prepare themselves

This month, a new corporate manslaughter law finally found its way onto the statute book. It is no longer necessary to prove that a person identified as the directing mind of an organisation is guilty of gross negligence. Instead, liability for the new offence depends on a finding of gross negligence in the way the organisation’s activities are managed.

To be liable under the new law, an organisation, including an NHS trust, must:

  • owe a “relevant duty of care” to the victim. This includes duties owed to employees, as an occupier of premises, in the supply of goods or services or in the use or keeping by the organisation of any plant, vehicle or other things.

  • be in breach of that duty as result of the way its activities are managed or organised. A substantial element of that breach must lie in the way senior management managed or organised activities. The failure must be gross in that it falls far below what could reasonably be expected.

The law defines senior management as anyone who plays a significant role in making decisions about how the organisation’s activities are managed or organised or in the actual managing of those activities. This covers those in the direct chain of management, as well as those in strategic or regulatory compliance roles. No individual can commit an offence under the new legislation.

When considering any failure, the jury must consider to what degree the organisation was in breach of its obligations under health and safety legislation and how much of a risk of death that failure posed. It may also consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices in the organisation that were likely to have encouraged any such failures or to have produced tolerance of it. Health and safety guidance that relates to the breach can also be considered.

Tough penalties

The sanctions following conviction are significant. They can include an unlimited fine, a remedial order requiring the organisation to address the deficiencies that led to the breach, or a publicity order requiring the organisation to publicise details of the offence.

While each case will turn on its own facts, the definition of senior management is broad enough to include those in senior operational roles and those carrying out monitoring or strategic roles, such as non-executive directors.

A trust’s strategic approach to health and safety, including its arrangements for risk assessment and monitoring, will be under particular scrutiny. Trust boards, including non-executive directors, have an important role to play in maintaining satisfactory standards of health and safety in their trust.

For example, non-executive directors need to be assured that systems of internal control, including clinical governance and financial management, are properly established and that appropriate systems of risk management are in place.

During a corporate manslaughter investigation, the police may wish to interview members of the board, including non-executive directors. If a trust were prosecuted, non-executive directors might be required to give evidence at a public trial. The reputational damage that could be caused by such an exercise - corporately and individually - is clear.

To avoid prosecution, boards should satisfy themselves that their trust has reviewed the following:

  • health and safety guidance applicable to the operation of an NHS trust. Boards may wish to consider Leading on Health and Safety at Work: leadership actions for board members, which was recently published by the Institute of Directors and Health and Safety Commission.
  • the structures in place to identify risks and manage them effectively;
  • reporting procedures to the board, particularly on matters relating to health and safety;
  • systems for ensuring that recommendations following serious untoward incidents are implemented;
  • systems for recruiting competent staff and for ongoing training and supervision;
  • the health and safety culture in the trust, with a view to encouraging a positive and responsible approach to health and safety.

HSJ is holding an interactive online debate on the Corporate Manslaughter Act at 9.30am on 17 April. Speakers include NHS clinical governance support team director of board development Paul Stanton. To register, click here