Dr Gerard Panting discusses how the Corporate Manslaughter and Corporate Homicide Act applies to healthcare, and the possible outcomes from an offence


The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect on 6 April 2008 and applies to the entire UK.1 The Act was developed as a response to incidents in which individuals have died as a result of high-profile system failures, including the fire at King’s Cross underground station and the Piper Alpha disaster created a new offence of corporate manslaughter (corporate homicide in Scotland). The purpose of the Act is to make it easier to hold corporations, as opposed to individuals, to account for deaths where there have been gross failures on the part of the senior management. The prospect of this new offence has generated concern over the potential liability it imposes on healthcare providers, including GP practices.

Breach of duty of care

NHS hospital trusts and GPs owe their patients a duty of care, and this may include individuals they have never actually seen; for example, when a hospital receives a referral letter but then loses it so the patient is not seen within the appropriate timescale, or when a staff member at a GP surgery agrees to a request for a doctor to visit a patient, but then fails to pass the message on. In practice, proving a duty of care is seldom a problem for would-be litigants.

Proving that there has been a breach of the duty of care is far more difficult, and requires expert opinion to the effect that the care provided fell below an acceptable standard or, to put it another way, the treatment provided could not be supported by a responsible body of medical opinion (the Bolam2 test).

If one or more breaches of the duty of care are identified, the next step is to determine what, if any, harm occurred as a result.

Criminal negligence and medical manslaughter

The impact of the new Act on healthcare providers needs to be viewed against the backdrop of existing legal remedies in cases where something has gone wrong, including clinical negligence claims and medical manslaughter (criminal negligence). Rarely, the clinical negligence resulting in death is deemed so serious as to amount to gross negligence, warranting criminal charges, and prosecution for the common law offence of manslaughter follows.

The problem here is that in the Adamoko case the House of Lords effectively defined gross negligence as being the degree of negligence that would lead a jury to convict a defendant;3 this is, at best, a circular argument.

Prosecution for medical manslaughter cases is uncommon. A survey of published reports revealed that during the period 1795 to 2005, 177 health professionals were charged with manslaughter (excluding cases involving criminal abortion and those involving non-medical practitioners);4 75 of these cases involved 85 doctors and, of these, only 22 were convicted. The post-war cases resulted from some form of medication error or major technical mistake.

Provisions of the Act

An offence is deemed to have occurred when a death is caused by a gross breach of the duty of care owed by the organisation concerned to the deceased. The offence must have resulted from the way in which the activities of the organisation were managed or structured by senior management (the relevant decision makers). The Act applies to the following organisations:

  • corporations
  • department or other body (as listed in the Act)
  • police force
  • partnership, or a trade union or employer’s association, that is an employer.

Consequences of a guilty verdict
Organisations found guilty of the offence of corporate manslaughter or homicide are liable to a fine. In addition, organisations convicted of corporate manslaughter (homicide) may be required to take steps to remedy any deficiencies (through a Remedial Order) in the organisation’s health and safety policies, systems, or practices relevant to the death or deaths in question. The court can also order that the conviction be made public (through a Publicity Order), including the fact that there has been a conviction, specified particulars of the offence, the amount of any fine imposed, and the terms of any Remedial Order that has been made.1

Exceptions to the Act
There are some noteworthy exceptions as far as the NHS is concerned. Section 3(1) of the Act states that: ‘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”.’ 1

This would appear at a stroke to remove liability under the Act from cases where there has been a failure on the part of an NHS body to provide expensive drugs to patients, unless previously approved for that indication by NICE or its equivalent in other jurisdictions. In addition, any duty of care owed by an NHS body when responding to emergencies is excluded, but the exclusion does not extend to the individual culpability of clinicians delivering medical care in emergencies—in other words they may still be held accountable under common law.

Since January 2002, the NHS in England and Wales has been legally obliged to provide funding and resources for medicines and treatments recommended by NICE’s technology appraisal guidance. If NICE recommends a particular treatment, the NHS must ensure it is available, normally within 3 months of publication.5 If, however, a treatment is not recommended by NICE because there is insufficient evidence that it is more effective than another available treatment for the same condition, the treatment should not be prescribed routinely on the NHS, thus reinforcing defence arguments under section 3(1) set out above.

Clinical situations such as failure to provide a specific treatment using a drug that has NICE approval, are less likely to lead to proceedings under the new Act. It is theoretically possible that an NHS body that steadfastly refuses to fund treatment that NICE has recommended for a specific group of patients, could face prosecution if one or more of them who would otherwise have survived, died for lack of that drug. However, criminal prosecution requires the facts to be proved beyond a reasonable doubt—it would have to be almost certain that the patient(s) would have otherwise lived. In any event, it seems unlikely that a commissioner would be so resolute in sticking to an obviously bad decision, which, in any case, would almost certainly result in a judicial review forcing the NHS body to follow NICE guidance.

Applications of the new Act in the NHS

The new Act can only apply on an individual case basis, where there has been a death, and must be used to examine the facts retrospectively. For GPs, the situation is perceived as threatening, despite the low likelihood of criminal proceedings. The National Association of Primary Care has raised the issue with the Department of Health,6 warning that GPs could be liable for huge sums of money for which they may not be indemnified by defence organisations.

The new legislation is most likely to bite in non-clinical situations within the health sector. Potential scenarios are legion and may arise from taking inadequate precautions against fire or other hazards, through to improper storage or labelling of medicines. Inadequate maintenance of equipment leading to a fire, or failure to have a practised evacuation procedure in place could, in the event of resultant death, also lead to prosecution. Similar principles apply when it comes to clinical equipment. If poor maintenance leads to malfunction and patients die as a result, prosecution is a real possibility.

Like all employers, GP practices have a duty to protect their employees against foreseeable potential harm. A death resulting from a failure to have adequate safeguards in place, would leave the practice open to prosecution.

Conclusion

The Corporate Manslaughter and Corporate Homicide Act 2007, applies to GP practices in the same way that it applies to all other organisations. There will be circumstances peculiar to the provision of medical services that could give rise to prosecution under the Act, but in general it will not materially change the current legal structure dealing with the availability of treatments for patients, or the means of seeking legal redress in the wake of unfavourable outcomes.

 

  1. Corporate Manslaughter and Corporate Homicide Act 2007. www.opsi.gov.uk/Acts/acts2007/ukpga_20070019_en_1
  2. Bolam v Friern Barnet Hospital Management Committee [1957] 1 WLR 852
  3. R v Adamoko 1991; 2 Med. L.R. 277
  4. Ferner R, McDowell S. Doctors charged with manslaughter in the course of medical practice, 1795–2005: a literature review. J R Soc Med 2006; 99 (6): 309–314.
  5. Department of Health. National Health Service Act 1977 Directions to Health Authorities, Primary Care Trusts and NHS Trusts in England 2001. London: DH, 2001.
  6. GP commissioners face fines under new corporate manslaughter law. www.healthcarerepublic.com/news/GP/781315/GP-commissioners-face-fines-new-corporate-manslaughter-law/ G