HSJ patient safety correspondent Shaun Lintern on why NHS leaders should watch the trial of Maidstone and Tunbridge Wells Trust closely

Prosecutors will open their case against Maidstone and Tunbridge Wells Trust today in the first ever prosecution of an NHS organisation for corporate manslaughter.

The outcome could have a lasting impact on the way the NHS approaches serious risk and systemic errors

The case is centred on the death of primary school teacher Frances Cappuccini who died after giving birth by emergency caesarean section at the trust’s Pembury Hospital in October 2012.

The trust pleaded not guilty last year and arguments will be heard in court over the coming weeks. Two of the trust’s doctors have also been charged with gross negligence manslaughter with anaesthetist Errol Cornish denying the charge.

Beyond reasonable doubt

The case against the trust is likely to be watched closely by those in senior NHS management positions and in the Department of Health. The outcome could have a lasting impact on the way the NHS approaches serious risk and systemic errors.

Prosecutions for patient deaths in the NHS are extremely rare, due to the difficulty in many cases of proving with certainty that such a death was directly caused by negligence.

The Health and Safety Executive has taken action against NHS organisations for breaches of health and safety laws but – as Sir Robert Francis exposed in his report on failings at Mid Staffordshire Foundation Trust – interventions by the HSE were increasingly unlikely the more serious the breach because of the way it viewed deaths in healthcare settings. The Care Quality Commission has now taken over responsibility for taking action against NHS breaches of health and safety law. 

The case against Maidstone and Tunbridge Wells is the first time that the Crown Prosecution Service has targeted an NHS organisation under the Corporate Manslaughter and Corporate Homicide Act, which came into force in 2008.

The NHS is only just beginning to seriously look at what can be done about system-wide errors

The legislation, a response to fatal incidents such as the King’s Cross Underground Station fire and the Piper Alpha oil platform explosion, says an offence has been committed if the way an organisation’s senior management structured its activities caused a person’s death and constituted a “gross breach of a relevant duty of care owed by the organisation to the deceased”.

As this is a criminal offence any case will need to be proved beyond all reasonable doubt, and will have to show that failings by the organisation’s senior management directly contributed to the death and were below the expected standard.

Jury members will have to consider the risk of deaths associated with the incidents, whether other requirements such as health and safety laws were complied with, and what the culture of the organisation was towards safety at the time of the death.

A senior manager at an organisation found guilty of corporate manslaughter would not face prison, but the organisation could have an unlimited fine imposed and the court can require publicity orders and specific actions to be taken.

Events at Stafford Hospital and Morecambe Bay have increased the focus on systemic error in the NHS and the way it contributes to direct patient harm.

There is an ocean of difference between an individual’s negligent behaviour and a genuine human error committed because of a range of human and systemic factors. The approach to both must also be different.

‘Fair blame’ culture

While a raft of new laws have been arranged against NHS trusts and clinicians – wilful neglect, duty of candour and a host of legal sanctions by the Care Quality Commission – the NHS is only just beginning to seriously look at what can be done about system-wide errors.

The new Independent Patient Investigation Service is due to take shape later this year and is intended as a mechanism for learning from serious error – something the NHS has failed to do consistently.

There is much talk of a no-blame culture being necessary in the NHS but it may be that what is needed more is a fair-blame culture, where people are correctly held accountable for failings it was in their power to avert.

Individual doctors and nurses have long been subject to prosecution where gross negligence has led to death; it is right that where there have been organisational failings of the same magnitude trusts should be subject to similar sanctions.

It remains to be seen whether or not there was such a failure in the Maidstone and Tunbridge Wells case. But whatever the outcome of the trial, the decision to bring such a prosecution against an NHS organisation sends an important signal to health service leaders - one that will no doubt play on the minds of many managers called upon to make hard choices about staffing levels, equipment maintenance, or workforce training and culture.

First NHS trust in court for corporate manslaughter case