HSJ gathered a group of experts to discuss - live and online - the implications of the Corporate Manslaughter Act. Louise Hunt was there
There were stark messages for trusts on the implications of falling foul of the new Corporate Manslaughter Act. But the panel of legal, risk and governance experts that took part in the HSJ Board Talk online debate also said much to reassure NHS managers that keeping on the right side of the law is within their power, as long as the necessary steps are taken.
The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April with the aim of ensuring large organisations could be held to account for management failures that have caused death. Under the act trusts will for the first time be criminally liable if found to be in “gross breach of the relevant duty of care”.
“Although the facility to prosecute has always existed, because of the separation between management and those at the sharp end conducting the activities that may have caused death it has not been possible to secure a common law manslaughter conviction against a large organisation,” explained David Firth, a partner leading on dispute resolution at law firm Capsticks.
“What the law now requires in order to secure a conviction against a company or organisation is to attribute poor management by the organisation as a whole, rather than any individual within it, and to connect that poor management to circumstances leading to death.”
Duty of care
Paul Stanton, chief executive of Southminster Consultancy Associates and Northumbria University visiting professor of governance, emphasised the change in focus. “First and foremost it is the board as a body corporate - not simply the chief executive - but rather the board as one corporate entity as the body accountable in law for its actions.”
He reminded trusts of their broad duty of care encompassing staff, patients and visitors and not to be tempted to think only of clinical care, but also about the implications of the act for maintenance of premises and facilities.
The act is an opportunity for trusts to review their risk management, said Stockport foundation trust vice chair Gillian Easson, who chairs Manchester University’s risk committee. “The key message [is that] health and safety responsibility starts and stops with the board and therefore it is up to the board collectively to set the tone, to set policies, to set the commitment. We’re looking at all the risks and particularly risks that regularly lead to serious injury and death, such as slips, trips and falls.”
She pointed out that for the first time the culture of safety in an organisation is a relevant criterion for prosecution. All staff must be aware of the act and encouraged to speak up. She added that non-executive directors must also do their job of rigorously holding the trust to account.
Mr Firth supported this view. “You need to be confident under investigation that all of your staff can represent properly how you manage your risk, because that is part of demonstrating a culture of health and safety. If you give an indication that there is a tolerance of health and safety failings, that goes towards demonstrating there has been a gross failure by the organisation which is one of the elements that could lead to a conviction under the act.”
The panel agreed on the importance of audit trails to provide evidence that trusts have kept up to date on health and safety guidance, regularly reviewed procedures and implemented any board recommendations.
Mr Stanton picked up on the complexities of the act for primary care trusts, saying there is potential for confusion over governance between the board and the professional executive committee. “It is vital there is clarity as to which of those bodies does what,” he said, adding that PCTs have a wide ranging duty of care as commissioners to scrutinise the care delivered by a panoply of independent contractors.
He stressed there is also a risk at points of transition, where patient care transfers from one organisation to another. “Now I look at a lot of risk registers and I know from talking to patients that points of transition are points of real risk in their lives. I do not on the whole see that the NHS manages its transitions very well. I think this is another reason why we should look very carefully at the management of transition,” he said. Ms Easson agreed and said it was part of being “brutally realistic” about where true risk lies. “Your risks go well beyond the boxes that you may tick and it isn’t helpful to apply a box ticking mentality to what you do,” she said.
One viewer during the interactive online debate asked whether any damning findings from the annual health check and other monitoring procedures would have bearings on a corporate manslaughter prosecution.
Mr Firth responded that they would be a “thoroughly appropriate way of assessing how an organisation is meeting its health and safety obligations”.
“It would suggest to a prosecutor that a trust is letting health and safety and risk management generally slip away from it and that a management failure causing death could just be around the corner and an inevitability as far as the prosecutor is concerned. So it impacts very severely.”
The debate moved on to the issue of how trusts must ensure they are adequately resourced to fulfil their obligations. Ms Easson said this again was up to the board. “If you do not have adequate resources and you are prosecuted this will be an aggravating feature when it comes to the penalty. So, no, that is not an excuse and non-executive directors must insist they are properly resourced. Nothing is more important than the safety of your patients and staff.”
Mr Firth said trusts had to demonstrate they were keeping up to date with audit and guidelines. “Don’t forget it is an ongoing process. It is live. And you need to be able to demonstrate that you have kept up to date. So if new guidance comes in, if a standard practice within the industry is questioned, how have you reacted to it? Write it down. It should be part of a board paper, there should be recommendations that it will generate and then how has that been implemented? What budget has been set aside?
“It all goes towards creating an audit trail,” he added.
However, while it will be the corporate body, not any one person, in the dock, Mr Firth confirmed that there is a facility for parallel prosecutions under the Health and Safety at Work Act, under which individuals can be held to account.
He gave the example of a clinical error that results in death, where you could have a corporate manslaughter prosecution against the trust concerned. Second, there could be an individual prosecution for involuntary manslaughter for the clinicians involved. A third prosecution could be made under the Health and Safety at Work Act.
“Where it gets particularly uncomfortable is that there is the possibility for employee and senior manager individual criminal liability under the Health and safety at Work Act if they’ve consented or connived in the commission of the health and safety offence. Or if it has taken place by reason of their omission then a senior manager can end up individually prosecuted for his or her part in the corporate health and safety offence. So here we have three separate prosecutions running with possibility for individual liability under the Health and Safety at Work Act,” said Mr Firth.
The debate moved on to the C difficile outbreak and deaths at Maidstone and Tunbridge Wells trust and whether it would have been caught by the new legislation.
“I think it’s clear that there were some serious and systemic failures at Maidstone and Tunbridge Wells and not just within the boundary of the organisation,” said Mr Stanton. “I personally think the primary care trust that had commissioned care from that organisation had been to some extent negligent in not sufficiently securing the safety and well-being of its patients. However, for technical reasons I think it might have been difficult to make the charge of corporate manslaughter stick because the actual cause of death in any given case would not itself necessarily have been simply C difficile. It might have been a contributory cause of death but not a direct cause of death.”
Ms Easson agreed: “Clearly causation is the key question here, because the prosecution have to prove ‘but for the negligence the death would not have occurred’, and this is very difficult with C difficile where patients come in with the condition and where they have serious illnesses as well. So I think there are significant problems with causation.
“But it is such an interesting and significant case for all boards because if you are prosecuted by the police for corporate manslaughter you almost certainly will be prosecuted… for health and safety offences as well. The police can ride two horses here and they will, and therefore the lessons to be learned from Maidstone should be very much at the forefront of board consideration.”
Mr Firth described what an investigation will feel like. “It is an extremely uncomfortable process. What the police will be looking for is evidence of manslaughter to make the connection between the failing of management and the death.
“They need to establish that there has been senior management involvement so the first port of call will be the board. Once they have sufficient evidence they will consider a prosecution. I think on almost every occasion the public interest test will be met and the summons will be issued and the organisation will be prosecuted in the crown court only and the parallel health and safety prosecution will go with it.”
He added that cases can be lost on the way a trust responds to an investigation. “You should have your critical incidence response team ready to go.” He confirmed that staff should not take as read that they should always accept an invitation to attend an interview under caution and advised interviewees to be accompanied by a solicitor.
The consequences of prosecution under the Corporate Manslaughter Act - with the likelihood of unlimited fines - could be crippling for trusts, the panel warned.
It is not possible to insure against fines resulting from criminal prosecution, highlights Mr Stanton. “[So] no guardian angel can come up with the financial consequences,” he warned. “Those financial consequences fall on the organisation.”
“It’s deeply worrying,” said Ms Easson. “The sentencing advisory panel are currently considering the level of the fines and they have said that the level should be between 2.5 per cent and 10 per cent of the organisation’s annual turnover.
“Now for a foundation trust this could be a fine in the region of£15m-£25m. It would cripple any NHS organisation.” She said it remains to be seen if fines would be mitigated. If they are, she said it is likely the courts will consider a second, arguably more alarming, penalty: the publicity order that is due to be enforced this autumn.
“This is almost worse [because] your reputation is everything. It is extremely likely that you will be told to publicise what you have done within the national media. Now in an age of patient choice this is really quite devastating.”
“It is also fair to say that it could be career limiting for both executives and non-executives,” added Mr Stanton wryly. He added that it would be a reckless commissioner who would commission from an organisation until such time that they had been able to satisfy themselves that the problems that had led to the death had been overcome.
Mental health trusts
One viewer asked if mental health trusts would be at risk in the event of a patient suicide. Mr Stanton confirmed that at the moment patients detained under the Mental Health Act fall outside the terms of corporate manslaughter - which he thought “utterly scandalous” and a breach of their rights. But with an informal patient, “the question would be had an organisation done all that is reasonable to discharge its duty of care to a patient it might know to be at high risk”.
Ms Easson responded to a question on whether a police investigation precluded an internal one by saying it would be wise for organisations to investigate themselves.
The group was asked to comment on what health organisations can learn from the responses of other industries to disasters such as the
ferry and Hatfield rail tragedies. “The first thing is do not be complacent about standard industry practice,” responded Mr Firth. “If people don’t learn from near misses then policies aren’t worth the paper they’re written on.”
Mr Stanton summed up: “Surely most of us are most concerned about the safety and well-being of our patients. If we do all we can to secure their well-being ipso facto we will protect the organisation.”
Ms Easson reiterated: “Be careful, apply judgement and really think about where true risk lies.”
And Mr Firth drove home the importance of boards informing themselves about the act but ended on a note of encouragement: “Organisations that are currently meeting their health and safety obligations, currently managing their risk appropriately and make sure they continue to do things right in the future have nothing to fear from the new act.”
Watch HSJ’s webinar on the Corporate Manslaughter Act now