Charges of corporate manslaughter in the NHSBMJ 2006; 332 doi: http://dx.doi.org/10.1136/bmj.332.7555.1404 (Published 15 June 2006) Cite this as: BMJ 2006;332:1404
- Ash Samanta, consultant rheumatologist (, )
- Jo Samanta, lecturer in law
- Department of Rheumatology, University Hospitals of Leicester NHS Trust, Leicester Royal Infirmary, Leicester LE1 5WW
- De Montfort University, Leicester
May be brought if patients die after clinical negligence
Until now, indictments for manslaughter founded on alleged gross negligence after the death of a patient in the United Kingdom have been brought against doctors rather than hospitals and NHS trusts. A recent groundbreaking legal decision indicates that this may change. A hospital or trust as an organisation could be incriminated in a charge following the death of a patient, and corporate manslaughter, or corporate killing, may emerge as a new threat for the NHS.
In the case in question a 31 year old man admitted to Southampton General Hospital in 2000 for a routine knee operation developed a bacterial infection which two senior house officers failed to diagnose and treat. The patient subsequently died of staphylococcal toxic shock syndrome. The doctors were convicted of gross negligence manslaughter at the Winchester Crown Court in 2003 and given suspended prison sentences. The NHS trust was prosecuted under section three of the Health and Safety at Work Act 1974 on an indictment of five charges. In January 2006 the trust pleaded guilty to an amended charge of failing to adequately manage and supervise the doctors.1 In giving judgment, Judge Michael Broderick said that the case would have implications for the whole NHS.1 2
The common law offence of corporate manslaughter requires that the prosecution proves “beyond reasonable doubt” that an unlawful killing took place, that a person responsible within the company controlled the activities resulting in the death of the individual, and that the “controlling mind” was grossly negligent so as to be responsible for the death. Since the late 1990s, legal reform has created a statutory offence of corporate killing.
In 2005 the home secretary introduced the new draft Corporate Manslaughter Bill.3 The offence occurs if “the way in which any of the organisation's activities are managed or organised by senior managers causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.” Under the proposed bill, senior managers (and not just directors or executives) will be responsible if they can be shown to have committed a gross breach in decision making related to operational processes within the organisation that subsequently results in the death of a person. A senior manager is “a person who plays a significant role in the making of decisions about how the whole, or a substantial part, of the organisation's activities are to be managed or organised, or if that person plays a significant role in the actual managing or organising of the whole, or a substantial part, of those activities.” A gross breach occurs “if the failure in question constitutes conduct falling far below what can reasonably be expected of the organisation in the circumstances.”
Traditionally, manslaughter has been considered an offence capable of being committed only by a person and not by a corporate body. Lord Justice Bingham tentatively opined as far back as 1987, however, that an indictment could lie against a company as well as an individual.4 After the sinking in the English Channel of the car ferry Herald of Free Enterprise (which led to the deaths of 187 passengers) Mr Justice Turner in 1991 concluded that a company could be deemed guilty of the offence of manslaughter, provided that there was somebody within the company who was responsible for controlling the relevant activities that led to those deaths.5
It is not easy for the prosecution to show that the relevant acts have been committed by persons as the “controlling mind” responsible for the gross negligence that caused loss of life, as evidenced by several unsuccessful actions. As a result, actions against large companies have all failed after high profile public disasters such as the sinking of the Herald of Free Enterprise, the fire at King's Cross underground station in London, and the fire at the North Sea Piper Alpha oil platform.6
With smaller companies, finding a controlling mind is less of an obstacle. A company was convicted for corporate manslaughter in respect of four teenage students who drowned on a leisure canoeing trip.7 Although convictions for the offence of corporate manslaughter have been few, companies and organisations may well be prosecuted and substantially fined for offences under the Health and Safety at Work Act 1974, and guidance for this has been set down and reinforced by the court of appeal.8 9 As a result, organisations have been fined subsequent to prosecution involving fatalities resulting in a failure to meet required standards of care for their clients.10–12
The indictment in the case at Southampton General Hospital was based on a failure of the trust to ensure that patients were not exposed to risk in health and safety, take up references for clinical staff, supervise adequately the working of junior doctors, implement protocols for handover of the care of patients, and develop lines of communication for nursing staff to report concerns. By the trust pleading guilty to an amended charge of failing to adequately manage and supervise the doctors in this case, the other issues have not been subject to scrutiny by the court. These could have relevance in similar actions for other NHS trusts in the future. In response to the Southampton case, the lead clinical coordinator for the National Confidential Enquiry into Patient Outcomes and Death said that these problems cannot be tackled by individual doctors but require careful planning by clinical teams, trusts, and, in some cases, strategic health authorities.2
Senior medical and managerial staff in the NHS would do well to take note of this, to give high priority to complying with health and safety law, and to prepare themselves for the implications of an indictment of corporate killing. Directors and managers may be personally indicted for breaches under section 37 of the Health and Safety at Work Act 1974. Senior healthcare professionals and managers of trusts might find themselves in the dock charged with corporate manslaughter. Health and safety risk management should be integrated into all activities of NHS trusts, with a particular emphasis on the supervision of junior doctors and other staff in training grades. Policy documents should be drafted carefully, and schemes for delegation to junior medical staff must be under-pinned by a robust system of training and review.
Competing interests None declared.