The Crown Prosecution Service announced in April 2015 that for the first time they are charging an NHS Trust for corporate manslaughter, a criminal offence, following the tragic death of a young mother at the Pembury Hospital in October 2012.
Criminal prosecution of medical professionals, let alone NHS Trusts, has historically been extremely rare. There are two main criminal charges in this context: gross negligence manslaughter (brought against the individual) and corporate manslaughter (brought against the organisation). The test for gross negligence manslaughter follows the civil law formula that in order to prove negligence you need to show a breach of a duty of care causing death; however, it adds an additional high hurdle: the breach of duty must be so grossly negligent as to constitute a crime. Because this is a criminal charge the prosecution must prove gross negligence manslaughter beyond all reasonable doubt, rather than on the balance of probabilities, as in a civil claim. Prosecutions are difficult.
In recent years successful prosecutions of doctors for gross negligence manslaughter have increased. In 2013, a surgeon was convicted of this offence for failing to operate on his patient for 40 hours despite being aware that he had a perforated bowel. Prosecutions under this offence are only likely to succeed when treatment by healthcare professionals falls way below a reasonable standard.
Corporate manslaughter is now an offence under the Corporate Manslaughter and Corporate Homicide Act 2007. The offence is directed at an organisation’s senior management in order to hold them accountable for how they manage and organise its activities. If their management is a substantial element in causing a gross breach of duty, leading to a person’s death, and this is directly attributable to a senior management failure, they can be held accountable. Senior management includes those with significant and influential involvement with the organisation, rather than individuals who just carry out its activities. The prosecution must prove beyond all reasonable doubt that the breach fell below what could be reasonably expected of the organisation and that the breach was more than a minimal contribution to the person’s death. This is again hard to establish.
Prosecutions to date for corporate manslaughter have been limited. Most involve small, owner-managed companies, such as J Murray and Sons Ltd. Here, the company pleaded guilty to corporate manslaughter and were fined £100,000 after an employee was dragged into an animal feed mixing machine and killed. The charge of corporate manslaughter against the Maidstone and Tunbridge Wells NHS Trust is the first time that the CPS has pursed an NHS Trust. To secure a conviction, they will need to demonstrate that a failing in the running of the Trust by senior management was directly attributable to and a substantial element in causing death. Senior management decisions relating to the employment, training, supervision and support for staff together with the implementation and adherence to protocols and policies and likely to be scrutinised.
Like all organisations, senior management at NHS Trusts need to be held accountable for their actions. Although removed from directly treating patients, their decisions and polices affect the care patients receive. It is simply unfair to scapegoat individual doctors if senior management do not provide them with the resources and support to properly perform their roles. With NHS Trusts across the country battling with limited funding, the number of corporate manslaughter charges could increase.
If you think you have been injured as a result of negligent treatment and would like to speak to a member of the Lester Morrill clinical negligence team please call on 0113 245 8549 or contact us by email at firstname.lastname@example.org.