Gross negligence manslaughter – residential care home – liability – legal test
M had severe learning and physical disabilities, was unable to speak, suffered from progressive muscular contractions and rare but violent epileptic fits. He lived in a residential care home run by Salford City Council. He had been in the Council’s care for most of his life. There were two other residents in the home, which was staffed by three carers, one of whom slept overnight in the home.
M drowned in 1998, aged 30, when he was left unattended in a bath – at one point for a period of up to five minutes. He was unable to sit in a bath without assistance and had no capacity for self rescue. The death was investigated by both the HSE and the police. The evidence showed that it had become standard practice to leave M in the bath for short periods, which enabled the carers to attend to other matters and, in their view, also gave him a bit of privacy. Further, there were no written or oral instructions not to leave M unattended and there had been no formal assessments of the risks involved in bathing M, nor any formal training provided for staff.
An inquest returned a verdict of ‘accidental death contributed to by neglect’. Salford Council subsequently pleaded guilty to two health and safety offences (failing to ensure M’s safety so far as was reasonably practicable and failing to report M’s death by the quickest possible means) and was fined a total of £115,000. The Crown Prosecution Service, meanwhile, decided that a prosecution for gross negligence manslaughter against the Council and/or the careworkers was not appropriate. That decision was reviewed several times, at Mrs Rowley’s behest, but the same conclusion was reached each time. Mrs Rowley then issued judicial review proceedings against the CPS concerning its failure to prosecute the Council or the careworker for manslaughter.
The judge reviewed the law concerning gross negligence manslaughter and noted that the ordinary law of negligence applied to ascertain whether or not there had been a breach of a duty of care towards the person who has died. Once it could be shown that there had been ordinary common law negligence causative of death and a serious risk of death, the only element left to be established was criminality or “badness” – ie a jury must be sure that the defendant’s conduct was so bad as in all the circumstances to amount to a criminal act or omission. A jury could properly find gross negligence on proof of indifference to an obvious risk of injury to health or of actual foresight of the risk coupled together either with a determination nevertheless to run it, or with an intention to avoid it but involving such a high degree of the negligence in the attempted avoidance that the jury considered justified conviction. A jury could further make a finding of gross negligence where there was inattention or failure to advert to a serious risk going beyond mere inadvertence in respect of an obvious and important matter which the defendant’s duty demanded he should address.
In this case, the evidence showed that the Director of Public Prosecutions had applied the correct test in law. Given that the DPP was correct in his understanding and application of the law, his application of the evidential test to each potential defendant (ie the careworker and the Council) was a matter within his discretion. The DPP’s conclusions on such matters were not conclusions with which the court could interfere unless satisfied that he was plainly wrong. Accordingly the application was dismissed.