30 September 2008
Wellcome Collection, Euston, London
Justice Minister Maria Eagle has spoken at an NHS Confederation event on the impact of the Corporate Manslaughter Act on the NHS.
[Check against delivery: this is the prepared text of the speech, and may differ from the delivered version.]
The Parliamentary Under Secretary of State, Ministry of Justice (Maria Eagle):
Introduction
This morning, I want to:
- discuss why a new offence was needed and explain how it will work
- describe what it will mean for NHS organisations and other employers
- explain how exemptions in the Act may be relevant to certain NHS activities.
First, I would like to explain why a change to the law was needed. Each year more than 200 employees and other workers are killed in work-related incidents. It was 228 last year. That is bad enough for the victims and their families, but these incidents also have an impact on members of the public - customers, service users and passers-by. 187 people lost their lives when the Herald of Free Enterprise sank outside the port of Zeebrugge in 1987. They were holiday-makers, day trippers and people who were simply at work doing their jobs. 51 people were killed when the Marchioness sank in the Thames in 1989. They were at a party having fun. And 31 died when two trains collided at Ladbroke Grove in 1999, commuters going about their business.
We've all heard about the cases which involve major loss of life. All involve a tragic loss of life for the victims, their family and friends. The practical and emotional consequences can be terrible: the loss of a breadwinner, a mum, a dad, a much-loved son or daughter, or a spouse.
But the consequences can also be devastating for the companies involved - for those working in them, their managers, and for the reputation - sometimes even the future existence - of the organisation itself.
Lord Justice Sheen who looked at the Herald of Free Enterprise disaster said that from 'top to bottom, the body corporate was infected with the disease of sloppiness'.
Or Lord Justice Mackay when sentencing Balfour Beatty and Network Rail for health and safety offences relating to the Hatfield derailment he said it was 'the worst example of sustained, industrial negligence in a high-risk industry' he had ever seen.
Neither of those incidents resulted in successful prosecutions for manslaughter. Under the previous law a company could only be prosecuted for manslaughter if a 'directing mind' at the top of the organisation was also personally liable. This did not reflect the reality of decision-making in larger organisations.
Where there have been profound failings leading to such unnecessary loss of life, it is important that there are effective laws in place to ensure proper corporate accountability. That was the driving force behind the creation of the new Act: to ensure that the law of manslaughter applies effectively to private companies and other organisations, including government departments, local authorities, police forces and NHS organisations. Some of these, such as private companies, local authorities and indeed NHS trusts themselves, were already covered by the previous offence of corporate manslaughter. For others, such a government departments, this is wholly new.
How the new offence will work
Let me turn, then, to the new offence.
In summary, an organisation is guilty of the offence if the way in which its activities are managed or organised causes a death and this amounts to a gross breach of a relevant duty of care to the deceased.
It is important to note that the offence is only concerned with 'gross' breaches of an organisation's duty of care. The Act is about the very worst failures to manage health and safety properly within an organisation. In considering whether there has been a gross breach the Act requires juries to consider the extent to which the organisation has failed to comply with existing health and safety legislation, how serious that failure was, and how much of a risk it posed to those who died.
The new offence will only apply where an organisation owed a duty of care to the victim. This means that the offence will apply where organisations already have legal responsibilities to take care of safety. For example, this might be where they have a duty to keep employees or visitors to their premises safe; where they are responsible for the condition of work sites or for the safety of their customers or, in case of NHS organisations, where they have a duty of care to patients who are receiving treatment.
Some organisations, such as the police and the prison service, will have a duty of care to those who are detained. NHS organisations will also have this duty if they are responsible for detaining patients under mental health legislation. Duties relating to the management of custody did not come into force with the rest of the Act in April, but these provisions will be implemented in the next three to five years.
I mentioned that the offence is committed if a death is caused by the way in which activities are managed or organised. This is not linked to establishing failure on the part of particular individuals or managers. It is instead concerned with how activities have been managed across the organisation and whether an adequate standard of care was applied to the activity that led to the death.
It changes the focus of a corporate manslaughter investigation from 'who' at the top was managing a particular activity, to 'how' the activity was being managed across the organisation.
Under this approach the court will examine the actual systems of work used by employees, the levels of training given and how well they were supervised by senior management. It will also explore the organisation's strategic approach to health and safety management, including arrangements for risk assessment, monitoring and audit.
The offence is concerned not just with formal systems for managing an activity within an organisation, but how in practice this was carried out. In assessing whether an organisation's arrangements were adequate, the Act specifically allows a jury to consider evidence of broader attitudes within the organisation towards safety which might have encouraged failure or engendered tolerance of poor practice.
However, a conviction will only be possible if a substantial part of the failure occurred at a senior management level. This ensures that the offence is targeted on truly corporate failure. It is not the case that an organisation can be found guilty if the death is caused by a wilful failure at a very low level.
Application to the NHS
Putting the offence into context, imagine that a patient has died in a hospital infected by MRSA and the issue of corporate manslaughter has been raised. Could the organisation be prosecuted and convicted in this situation?
The answer is 'possibly', but it will depend on all the elements of the offence being established. There would need to be evidence that the death was caused by a gross management failure and not by the activities of a junior member of staff who, despite the best effort of managers, had failed to follow guidance or act upon any training given.
In considering whether senior management played a substantial part in the breach that led to the death, the jury are likely to consider the extent they have heeded warnings about the risk of MRSA infection and what immediate and long term preventive measures they have put in place to mitigate that risk.
In reality I have every faith that senior directors in this room are doing all they can to reduce the risk of MRSA infection and that successful prosecutions for corporate manslaughter in this context will be very rare.
Exemptions
I want to turn now to the exemptions in the Act that may be relevant to NHS activities. The first point to note is that public policy or budgetary decisions are outside the scope of the offence. This means that if a decision is taken not to provide a particularly expensive cancer drug on the NHS and a patient who has been denied the drug later dies, a prosecution for corporate manslaughter cannot follow.
Nor does the offence apply to certain public responsibilities such as the response of the ambulance service or the order in which patients are treated in response to emergency circumstances. This is a partial exemption because it does not exempt ambulance services where they owe responsibilities to those working for them. The duty to ensure safety at work for employees is fundamental. It is questions about how the organisation responds to an incident that are exempt. The ambulance service has a duty to act in difficult, sometimes extreme, circumstances. Travelling at high speed to the scene of an emergency can be hazardous. It is not the role of this offence to ask whether those duties were exercised properly in these circumstances.
Penalties
Turning to penalties. As a corporate offence, for which an organisation and not an individual is convicted, the main sanction will be a fine. Cases will be heard in the Crown Court and there will be no fixed upper limit.
The Act also introduces an entirely new form of penalty - the publicity order. This allows a court to require a convicted organisation to publicise the fact that it has been convicted of corporate manslaughter, alongside details of the offence, the fine and any remedial action that has been ordered. Publicity orders were not introduced when the rest of the Act was implemented. As these will be an entirely new disposal, we think the courts should have guidance from the Sentencing Guidelines Council on using publicity orders. Once a guideline is in place, we will bring publicity orders into force.
Finally, courts will be able to impose a remedial order. These can currently be given in proceedings for health and safety offences, but are now being extended to corporate manslaughter. In practice, regulators will have long been involved in investigating and dealing with a fatal incident and will have used their existing enforcement powers, such as improvement and prohibition notices, to address dangerous practices. But remedial orders will be available where further intervention is required.
Corporate reputation is extremely valuable to all the organisations covered by the Act - government departments and NHS bodies are no exception. The combination of fines, publicity and remedial orders is therefore designed to be a tough sentence and carry a significant deterrent effect.
Conclusion
That, then, is an outline of the new offence. In practical terms this is not about new regulations or burdens. The offence does not require organisations to comply with new regulatory standards - it is based on existing duties of care and is specifically linked to the existing health and safety framework.
NHS organisations can comply with the law by ensuring they have effective processes in place for managing health and safety, that these are being implemented properly and reviewed regularly. I am sure you will be familiar with the guidance drawn up recently by the Institute of Directors and the Health and Safety Commission covering leadership actions for directors and board members. If you have not seen it I would urge you to take a look.
If you are complying with existing laws on health and safety - as I am confident that you are - you have nothing to fear from the new offence. If the introduction of the Act has caused you to review your health and safety procedures, I am sure you will agree that this is a positive step in terms of improving the safety of patients and workers alike.
Thank you once again for the invitation to speak. Although I will have to leave shortly and may not have time to answer all of your questions, my officials will be available to talk things through further in the margins during the course of the day.