Criminal liability for deaths in health and social care.
The practical and legal difficulty in securing convictions of corporations for ‘gross negligence’ manslaughter became apparent in the wake of widely publicised disasters such as the Hatfield Rail crash. Over centuries this offence had been developed by the courts in a case by case manner. The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6th April 2008, creating a specific offence of corporate manslaughter and abolishing the general offence of gross negligence manslaughter insofar as it applied to corporations. This overview seeks to assess the real impact that the Act will have on organisations in the world of health and care.
The Act is part of a general trend towards looking at what, rather than who, caused the death of the individual or individuals in question. For the first time it will be possible to look into an organisation’s general attitude to safety enforcement and control.
Given the breadth of organisations to which the Act applies, there has been much speculation about how it will affect criminal liability for deaths in health and social care. However, the wide application of the Act is no more or less than an acknowledgement by Parliament that the kind of activities carried out by corporate bodies should not escape scrutiny simply because they are carried out by organisations in the public and voluntary sectors.
Under the old law, in order for a corporation to be convicted of manslaughter, it had to be demonstrated that there was a grossly negligent act or omission by a person who was the ‘controlling mind’ of the corporation that caused the death. In other words, without guilt on the part of the person with the controlling mind, the corporation could not be convicted. The Act creates liability of a relevant organisation where the way in which its activities are managed or organised by its senior management causes death, and amounts to a gross breach of a relevant duty owed to the deceased (s.1(1)).
If convicted, an organisation faces an unlimited fine (s.1(6)), as well as potentially facing remedial and publicity orders (s.9 & s.10), requiring rectification of the practices causing breach and the details of the conviction and penalties being publicised.
So the threshold for guilt has not been lowered, but the Act criminalises an organisation where the aggregated negligence of its directors and managers amounts to gross negligence. The conduct of the organisation’s directors or senior management will be relevant to the liability of the defendant organisation, yet those individuals cannot themselves be held liable under the Act.
The fear of many organisations, especially those in the public sector, is that the Act will make it easier to hold them criminally liable for the death of those for whom they provide medical and care services, or of detained patients, or those in secure accommodation, for whose safety the organisation is responsible. However, the Act has not significantly shifted the goalposts in relation to who can be criminally liable for deaths in health and social care. Nor has it greatly altered the functions, activities and decisions that may be scrutinised by the criminal courts.
It must be remembered that regardless of the fact that the Act can apply to any organisation,
1) the Act will not be engaged unless there a ‘relevant duty’ owed to the deceased under s.2(1);
2) even if a duty arises, it may be exempted, partially or totally under ss.3-7, due to the nature of the activity or function being performed or decision being made, or the circumstances surrounding that activity, function or decision; and
3) in order for the offence to be made out, there must have been a gross breach of the relevant duty; and that gross breach must be shown to have actually caused the death.
Moreover, the Director of Public Prosecution’s consent is required before a prosecution can be brought under the Act. S/he must be satisfied that there is a reasonable prospect of conviction and that a prosecution would be in the public interest. A statistic that puts the likely impact of the act on organisations in the care and health world into perspective somewhat is that provided by the government’s regulatory impact assessment on the Bill. It was estimated that a total of only 5 additional prosecutions per year for corporate manslaughter will result from the new Act. It is therefore likely that prosecutions under the Act will be limited to widely publicised, concentrated incidents that cause a large number of deaths, and prompt public disapproval.
Emma Price, Barrister