It will have taken over 12 years, but April 2008 will see the introduction of a statutory criminal offence of corporate manslaughter. Given the high profile failures of recent times the Police and CPS will be under tremendous pressure to secure an early conviction that has real public impact. Whilst there is no new individual offence, the first organisation to be convicted will face a battle for survival and Senior Directors are likely to be the first casualties.

The NHS has had its fair share of high profile deaths with clinicians probably more likely to be prosecuted individually for manslaughter than any other profession. An NHS Trust is highly likely to be one of the first organisations prosecuted with the new offence following the preventable death of a patient. Southampton University Hospital NHS Trust has already come perilously close with 2 junior doctors being convicted on Manslaughter and the hospital itself facing Health and Safety charges over the death of a patient.

So what exactly is the new offence and what does a Board need to be doing to minimise the chances of making next years headlines?

The new offence

The new offence will apply to all organisations whatever their legal standing provided that they owed a relevant duty of care to the deceased as:

		employer
		occupier of premises;
		(i) supplier of goods or services (whether for consideration or not), (ii) undertaker of any construction or maintenance operations, (iii) the carrying on by the organisation of any other activity on a commercial basis, or (iv) the user or keeper of any plant, vehicle or other thing;

Relevant duty holders will be guilty of an offence if ‘the way in which any of its activities are managed or organised by its senior managers caused a person’s death and amounts to a gross breach of a … duty of care owed ….’

A Senior Manager is defined as someone who plays a significant role in the making of decisions about how the organisation or a substantial part of its activities are managed or organised, or someone who actually manages and organises the company.

This requirement, whilst much wider than the old ‘directing mind test’ that prevented so many prosecutions in the past, will still mean that organisations will not be liable where the actual failure causing the death was a long way down the chain of command. Previous guidance indicated that the term was intended to cover Regional Managers in the case of national organisations but would necessarily be determined by the particular context of an individual case. In cases such as the Legionnaires’ disease deaths in Barrow-on-Furness in 2002, the Design Services Manager/Architect was charged with manslaughter even though she was a ‘third tier official’. [Note: for interest, she was cleared of manslaughter after an 8-week trial but fined £15,000 for Health & Safety breaches, and the Council was fined £125,000]. This individual was clearly not a ‘directing mind’ of the Council, but individuals like this will probably find themselves a Senior Manager under the new Act.

This may be a fertile area of argument in the first few cases but it seems unlikely that Courts will place too strict a definition on the term given that the whole purpose of the Act is to make it easier to prosecute. Certainly within an NHS Trust directorate or department, managers may well find themselves meeting the test.

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Public functions

Any duty of care owed by a public authority in respect of a decision as to matters of public policy (including, in particular, the allocation of public resources or the weighing of competing public interests) is not a “relevant duty of care”. Commissioning decisions by Primary Care Trusts are therefore, of themselves, excluded from the ambit of the new offence.

The emergency response of NHS Trusts (including Ambulance Trusts) does not give rise to a relevant duty of care either although this does not exempt duties of care relating to medical treatment in an emergency, other than triage decisions (determining the order in which injured people are treated).

Medical services

As a supplier of services, NHS Trusts will be firmly caught by the definition under (c)(i). It is unclear the extent to which the death of a patient detained under the Mental Health Act will be excluded from the ambit of the offence. Detaining a patient under the Mental Health Act could be considered an exclusively public function, and exempt on that basis. However, after severe pressure from the House of Lords the new Act includes a clause applying the offence to someone for whose safety the organisation is responsible such as a detained patient, as well as those held in custody. Whilst the intention of Parliament is for the Act to apply to detained patients they have delayed the introduction of that particular section as mentioned above. The offence may though apply from the outset to deaths that relate to medical treatment rather than safety, although the dividing line between the two is rather vague.

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Gross

Whilst using the same term as the common law offence of gross negligence manslaughter, the new offence is not simply asking the Court to decide whether the conduct was so bad that it should be considered criminal; whether it has the look and feel of manslaughter in the eyes of the public. Gross breach is defined under the Act as being ‘where the conduct of the organisation falls far below what can reasonably be expected of the organisation in the circumstances’.

The Jury must consider whether the evidence shows that the organisation failed to comply with any Health and Safety legislation and, if so, consider how serious that failure was and how much of a risk of death it posed. The Jury may also consider the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation (not necessarily directly related to the breach in question) that were likely to have encouraged or tolerated any such failure. Interestingly they may also have regard to any relevant Health and Safety guidance along with any other matters they consider relevant.

This will mean that any failures to follow mere guidance could be left to the Jury to evaluate in their deliberations on whether there was a gross breach of duty. The Judge will have to be very careful in directions to the Jury to ensure that proper weight is given to any particular guidance relied upon by the prosecution. The Jury will also be able to tot up various failures at different levels within the organisation and aggregate them together when deciding whether there was a gross breach of a relevant duty of care.

What is clear though is that the Act is intended to catch the kind of systemic failings that presently allow organisations to avoid prosecution. Where there is wholesale disregard of guidance and best practice that may well be sufficient to amount to a gross breach. Deaths surrounding healthcare associated infections, Legionnaires’ disease outbreaks and the supervision of junior doctors have all hit the headlines in recent months; repeat incidents are all likely to be investigated in detail once the new Act is in force.

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No personal liability

An individual cannot be guilty of aiding, abetting, counselling or procuring an offence of corporate manslaughter. They can of course continue to face charges under the existing common law offence of gross negligence manslaughter in respect of their own personal conduct and can be prosecuted individually under Health and Safety legislation.

However, it is this lack of individual liability that critics say fails to give the new offence teeth. They say that without individuals who hide behind the corporate veil being brought to account there will continue to be an incentive to cut corners, save money and cost lives. The TGWU and construction union UCATT recently ran a campaign to make company directors '… take the workplace health record of their company as seriously as its financial one.' This appeared to be having some momentum with the Health and Safety Commission (HSC) who asked its civil servants last year to ‘explore the possibility of imposing duties on directors’ of private sector and public bodies.

The effect of placing specific duties on directors and accountable officers and getting Health and Safety at the top of the organisational agenda will in theory make it easier to prosecute individual directors and senior officers rather than just the organisation itself for breaches of Health and Safety legislation. The fact that most organisations devolve Health and Safety responsibility down the ranks currently makes it difficult to prove that any particular failing was the result of the neglect of a director or that it was committed with their consent. Just like corporate manslaughter, there are very few successful prosecutions against individual directors under section 37 of the Health and Safety at Work Act 1974 and almost no Director disqualification orders

Reputational damage

The alternative view is that companies and public sector organisations spend significant sums on managing their image and that a manslaughter charge will cost far more in the community than they will ever have to pay in fines. The recent problems surrounding outbreaks of Clostridium Difficile at Maidstone & Tunbridge Wells NHS Trust illustrate exactly the sort of public outcry that will follow the laying of charges under this Act, which will inevitably double if a conviction follows.

Given that the Jury will be asked to undertake a kind of Health and Safety audit at trial the single most valuable thing you can do is revisit your entire H&S compliance strategy and decide whether you really are giving it the level of importance it deserves. Who is leading on H&S in your organisation? Is it the same person named in your policy? Are you actually creating greater risk by devolving control amongst the organisation? What are your five biggest risks and what are you doing about them? As a Chief executive I would certainly want direct input from the Health and Safety team unfiltered by other Senior Managers.

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Self defence

So in the eyes of the public, justice will be achieved through the new Act, but what should Boards be doing?

The Government were at pains to point out that it is their intention to reserve the new offence for only the very serious cases, where this sort of criminal sanction is appropriate. It is designed to compliment rather than supplant existing liabilities under Health and Safety law; they say it imposes no new legal responsibilities or higher standards, but we are clearly playing for bigger stakes.

It is vital that you carry out your own evaluation of Health and Safety compliance to ensure that you are a long way from what any Jury could conceivably consider far below what is expected.

Preparing for the worst

Organisations will be at their most vulnerable in the immediate aftermath of an incident. The Memorandum of Understanding between the Police and HSE will ensure that there is a multi agency approach to any workplace fatality, each with very different objectives.

It is vital that a clear strategy is in place to manage that investigation. Are you clear as to the powers of the Police and the HSE? What documentation are they entitled to and when can you refuse to provide interviews? How should staff be supported through gruelling interviews? Who is in danger of personal criticism?

The approach of the Police and HSE will be set at a very early stage. Any perception that there was a delay in notification to the Police or any contamination of the scene, will be met with suspicion and generate an even more in depth investigation. Yet at the same time when is it legitimate to defend your position?

Many organisations are quite naturally appalled that a fatal accident has occurred and they will strive to ensure that the cause of the incident is known as quickly as possible to prevent a repeat of the tragedy. Decisions will be made in an instant on the basis of rudimentary information as to the potential causes. Will this information, probably not immune from Police and HSE eyes, be used to build a case against the organisation? When is being co-operative actually putting the organisation at risk?

The management of any incident in the public arena will also be vital. Swift action may be painful at the time but may well save much worse criticism further down the line. Network Rail appear to have all but eliminated sustained criticism following the fatal train crash in Cumbria last year by making an early frank admission. Contrast this with the years of fall-out that Railtrack endured after Hatfield, even after they had ceased to exist as an organisation. You need to put systems in place now to ensure that you can respond immediately to the worst if it were to happen.

Conclusion

From April 2008 the response of the Police and HSE will be magnified and persistent as they seek to establish convictions under the new offence.

First the Crown Prosecution Service and then the Jury will be asked to evaluate how far the relevant conduct fell below the standard which can be expected in the circumstances. They will do that by reference to compliance with Health and Safety legislation and guidance.

You should be carrying out that evaluation yourselves now to identify where improvements can be made whilst at the same time putting in place the infrastructure for you to be able to deal with the worst should it happen. This will mean clear incident management policies that control the flow of information and manage the external investigations as far as possible. Whilst there are a myriad of different standards for NHS organisations to follow these do not necessarily ensure compliance with criminal law duties under Health and Safety Regulations.

Bevan Brittan LLP will be running a seminar on Corporate Manslaughter in January 2008. For more information or assistance in understanding the implications of this new offence or advice on reducing the chances of a prosecution please contact: