Careful Considerations: corporate manslaughter in the care industry
Since the commencement of the Corporate Homicide and Corporate Manslaughter Act in 2007 there have been less than 20 convictions for the offence of corporate manslaughter but of these, only one prosecution has arisen in relation to the operation of a care home.
As the majority of convictions have followed guilty pleas there has been limited scope for the courts to consider the component parts of the offence, or provide judicial commentary as to how each limb is to be interpreted in the future. Therefore at present there is little scope for understanding not only how each limb of the offence will be applied going forwards, but the extent to which the courts will take into account the idiosyncrasies of the care industry when considering future care home prosecutions.
Prosecution of Sherwood Rise Limited
In February 2016, Sherwood Rise Limited became the first care home provider to be convicted and sentenced for corporate manslaughter, following the death of a resident at Autumn Grange Care Home, Nottingham, in 2012.
The company was fined £300,000 and was also ordered to pay costs of over £41,000. In addition to the prosecution of the company a director, Yousaf Khan, pleaded guilty to individual gross negligence manslaughter and received a custodial sentence of three years and two months. Autumn Grange’s Manager, Mohammed Khan, received a one year custodial sentence suspended for two years. Both were also disqualified from being appointed as directors for five years.
Additionally, this case was one of the first to be sentenced under the new Sentencing Guidelines for Corporate Manslaughter and Health and Safety Offences.
Due to the seismic change in the sentencing landscape for any health and safety related offence, the potential consequences of a failing are enormous, with the conviction and sentence of Sherwood Rise Limited significantly the first conviction of a care home for the offence.
Dismissed prosecution of Maidstone and Tunbridge Wells NHS Trust
As noted above however, until recently there has been little judicial commentary as to how the constituent parts of the offence are to be interpreted and applied, given the majority of corporate manslaughter convictions have been resolved by guilty pleas.
However some guidance has recently been provided following the prosecution, and subsequent dismissal, of Maidstone and Tunbridge Wells NHS Trust for corporate manslaughter. In granting the defence team’s application of ‘no case to answer’ the court provided commentary on each limb of the offence and how they may be interpreted in the future within a healthcare setting.
Having given birth by caesarean section, a patient at Pembury hospital, Kent later suffered from significant bleeding and was subsequently transferred to a High Dependency Unit. As a result of continued blood loss she was subsequently transferred to theatre for an examination under anaesthetic, during which she received a general anaesthetic. A piece of placental tissue was removed from her uterus and following the surgery she remained under observation for 15 minutes, during which no further bleeding was noted.
Just over four hours later the patient died following a cardiac arrest and unsuccessful attempts at resuscitation.
The resulting prosecution focused not only on the actions of the two anaesthetists who had provided care before, during and following the examination under anaesthetic, but also on the actions of the trust itself.
In dismissing the prosecution against the trust, the court considered each of the constituent parts of the offence of corporate manslaughter.
1) Senior Management
It was the prosecution’s case that ultimately it was the Chief Executive Officer of a trust who was accountable, and it was for each trust’s board of directors to ensure it had appropriate structures and practices in place to maintain proper clinical governance. Evidence was called which suggested that clinical governance included providing continuing education and training; undertaking regular clinical audits; comparing outcomes with benchmarks; clinical effectiveness; risk management; compliance with the law and codes of practice; and ensuring appropriate procedures were in place for the appointment of individuals, performance management and discipline.
In dismissing the case against the trust, the court held that there was sufficient evidence for the jury to conclude that the level of senior management responsible had been sufficiently identified, namely the Chief Executive. The court further held that had the jury been satisfied that there had been gross breaches in the way in which the trust’s activities were organised and managed, being causative of the patient’s death, they would have been entitled to assume that these were matters which were, or should have been, the responsibility of senior management.
2) Management/Organisation of Activities: Breach of Duty?
The court considered that this question consisted of three parts, being the interview/appointment process; the appraisal and general supervision of the doctors; and the supervision on the day of the incident itself.
a. Interviews/ Appointments
It was the prosecution’s case that one of the anaesthetists who was being individually prosecuted should not have been appointed by the trust because he was insufficiently qualified. Although the court did not consider that there was any evidence to support this contention, the fact that the level of experience of the anaesthetist was questioned may be of concern to other healthcare providers going forwards, to ensure that all members of staff involved in the provision of care are suitably experienced, knowledgeable and qualified.
b. Appraisal/ Supervision
Relevant to the above is the duty to ensure that the knowledge and practices of members of staff remain current, and that they undertake the required levels of continuing professional development and accreditation. The court noted that, in this case, there was evidence that some NHS trusts were not undertaking regular, or any, appraisals. It was held that this would be the sort of systemic failure which may in some instances be regarded as a breach contrary to s.1(1) of the 2007 Act.
3) ‘Gross’ Breach
In dismissing the case, the court explained that, when determining the issue of whether a breach has been ‘gross’ or simply negligent, the question is whether that breach is of such magnitude, so atrocious and reprehensible as to be deserving of criminal sanction.
The court went on to recognise that previously decided cases which referred to ‘very serious errors of judgment’, ‘recklessness’ and ‘indolence’ were not enough to satisfy the common law test for individual gross negligence manslaughter. In the healthcare context, the issue which falls to be considered is whether there has, objectively and by reference to best practice, been an error of judgment.
Going forwards courts are likely to consider whether the defendant has considered, or ignored, the advice of others, or whether they sought assistance and further help when they became aware of a concern. Likewise, if there has been a series of failings, or previous near misses, then these will lend weight to the suggestion that a breach is of such magnitude as to justify a criminal sanction.
In this case there was no evidence that any of the alleged breaches, even if they could be considered gross, caused or contributed to the patient’s death. As such the court confirmed the requirement that there must be a clear causal link between the alleged misconduct/failures and the death which has occurred. If there is no such causal connection then a prosecution for manslaughter cannot proceed.
Although prosecutions under the 2007 Act were initially few and far between, there is an upward trend for the police and CPS to pursue duty holders in respect of the offence, as they become more familiar with the required standards and evidential burdens.
Whilst the above case concerned the prosecution of an NHS Trust, as opposed to a smaller private healthcare provider, many parallels can be drawn, particularly those relating to senior management. Indeed, the task of identifying ‘senior management’ would be simplified in the case of a smaller healthcare provider with fewer levels of governance. As was the case with the conviction of Sherwood Rise, the ‘senior management’ were easily and readily identifiable. Going forwards such individuals are likely to be held responsible for any failings at a lower management level.
Any corporate entity could be prosecuted for corporate manslaughter following a fatality which occurs as a result of its undertaking and the recent conviction of Sherwood Rise demonstrates that care homes are not excluded from investigation. There is additionally an increasing tendency for prosecutors to pursue individuals concurrently with an organisation for failings which may have been identified.
It is therefore crucial going forwards, if an organisation wants to protect both itself and its employees from possible prosecution and conviction, that it takes steps to consider objectively its systems and procedures, and taken steps to address risks by either negating them or reducing them to their lowest practical level.