24 August 2023

The healthcare sector is mostly celebrated for healing and saving lives but it occasionally finds itself in the midst of controversies that shine a spotlight on systemic issues and management failures. The recent conviction and sentencing of former neonatal nurse, Lucy Letby, has ignited a discourse about accountability within the NHS and the responsibilities of senior managers at the Trust where she worked.

The UK Government’s announcement of an Independent Inquiry has done little to persuade the public that the extent of perceived failures of hospital and NHS Trust management to react to concerns raised by senior colleagues will be appropriately addressed. There is now mounting public pressure on the police and Crown Prosecution Service in England to conduct a criminal investigation.

This article highlights some of the serious criminal consequences that can be levelled at both organisations and individuals at senior management level - across all sectors in the UK - who fail to actively engage in supervision, risk assessment, and quality assurance measures within their institutions.

Corporate Manslaughter and Corporate Homicide Act 2007

The Corporate Manslaughter and Corporate Homicide Act 2007 was introduced to make it easier for the authorities to successfully prosecute large organisations where a corporate management failing has led to death. The Act applies to the whole of the UK, however, in Scotland, the offence is referred to as corporate homicide. There have been several prosecutions under the Act in England and Wales but there have been none in Scotland to date.

An organisation will be guilty of corporate homicide if the way in which its activities are managed or organised:

• Causes a person's death; and
• Amounts to a gross breach of a relevant duty of care owed to that person.

A "relevant duty of care" is defined as certain types of duty of care owed by an organisation under the law of negligence, i.e.. to employees or other persons working for the organisation, or in connection with the supply of goods or services.

A "gross breach" refers to a failure that falls far below the standard of care that would be reasonably expected from an organisation in similar circumstances.

An organisation cannot be convicted of the offence unless the prosecution can prove that a substantial element of the breach lies in the way the organisation's senior management has  collectively managed or organised its activities.

It is not a defence that the responsibility for health and safety has been delegated to an appointed internal advisor or an external provider; senior management must ensure that they have adequate processes for health & safety and risk management in place at all appropriate levels.

The management failures need not have been the sole cause of death and need only be a cause (although intervening acts may break the chain of causation in certain circumstances).

The offence under the 2007 Act does not apply to individuals, however, the usual legislation and common law offences pertaining to individual failings can apply.

Individual Accountability

Prosecution bodies across the UK can choose to prosecute an individual for an alleged breach of Section 37 of the Health and Safety at Work, etc. Act 1974 if it can be proven that a failure by an organisation or company was committed:

“with the consent or connivance of, or to have been attributable to any neglect on the part of, any director, manager, secretary or other similar officer of that company, or a person who was purporting to act in any such capacity”.

Such prosecutions are commonplace in England but increasing in frequency in Scotland.

In the most serious cases occurring in England, authorities will consider whether it is appropriate to charge any responsible individual(s) with the common law offence of Gross Negligence Manslaughter (GNM), an offence which does not exist in Scotland. 

In particularly extreme circumstances in Scotland, the Crown Office and Procurator Fiscal Service may consider the offence of Culpable Homicide, which has been libelled in response to particularly serious alleged breaches of duties leading to a fatality. 

Implications and Penalties

In Scotland, prosecutions for corporate homicide cases can only be heard in the High Court alongside the most serious of common law offences.

On conviction, an organisation faces an unlimited fine. The English Sentencing Guidelines (which are used as a ‘cross-check’ in Scotland) specify a range of financial penalty of between £180,000 to £20 million, depending on the size of the organisation and the level of culpability.

The Act also introduced Remedial Orders which require an organisation to address the causes of a fatality, and Publicity Orders requiring the organisation to publicise the details of its conviction.

If convicted of a breach of Section 37 of the 1974 Act, individuals can receive a custodial sentence of up to 2 years imprisonment and/or an unlimited fine. It is also within the court’s power to order the disqualification of a Director who has been convicted under this section.

For those individuals convicted of the most serious of cases on both sides of the border, the offences of GNM and culpable homicide attract a potential life sentence.

Conclusion

This case highlights the ongoing need for a culture of vigilance, transparency, and accountability in healthcare organisations. However, it should also serve as an important reminder across all industry sectors about the importance of supervision, risk management and escalation of concerns, and the delicate balance that requires to be struck between addressing systemic issues and holding individuals accountable.

BTO’s Regulatory and Criminal Defence Team are available to provide advice and training to organisations who require specialist Health and Safety input. The team are also on hand to provide expert support in immediate post-incident situations and throughout investigations by the police or relevant regulators.

Jaimie McGready, Solicitor: jmg@bto.co.uk / 0141 221 8012