What Directors need to know about Corporate Manslaughter?
The Corporate Manslaughter and Homicide Act 2007 came into force on the 6 April 2008. Under this legislation, it is possible for health and social care providers both public and private sectors to be found guilty of corporate manslaughter as a result of serious management failures, resulting in a gross breach of their duty of care. Whilst this offence is not part of health and safety law it does bring in the element of corporate management of health and safety.
Case of neglected duty of care!
Whilst the first test case of corporate manslaughter in a care home was issued following the death of an elderly lady in November 2012 in Nottingham, this sadly will not be the last. In this case, 3 former care home bosses had been accused of gross negligence of an 86-year-old resident due to failing to provide adequate food and drinks as well as not monitoring her fluid intake. The home was also found to have a poor standard of hygiene and poor fire safety. What is worrying about this case is that a very basic duty of care was missed.
As this case highlights in the ever-changing landscape of health and social care with the myriad of stakeholders involved, lack of simple monitoring results in the fatality of a lady. On Friday 5th February 2016, the company was prosecuted. This should act as a wake-up call for CEOs, Directors and senior staff, that they have a duty of care to protect the most vulnerable in society from harm, by having robust systems in place to monitor both staff and the people that front-line staff care for.
Not only was this a case of gross negligence in terms of corporate manslaughter due to the fatality of an elderly resident, it was a safeguarding issue which the CQC and the police fully investigated.
Powers of the HSE and CQC
Health and social care is regulated by the Care Quality Commission who under the Health and Social Care Act 2008 and the Care Quality Commission (Registration) Regulations 2009, have the powers to lead inspections, they also have enforcement powers in exercising their duties with regards safety and quality of social care provision.
There was some confusion as to what enforcement powers the CQC had and where the HSE stepped in with regards health and safety law amongst care providers, directors and senior managers.
Further regulation changes sought to clarify this through the introduction of the (Regulated Activities) Regulations 2014 which came into force on the 1st April 2015. This gave the CQC powers to prosecute for failures to provide safe care and treatment resulting in avoidable harm or a significant risk of exposure to avoidable harm. Prosecutions can be brought against registered providers, individual registered managers and directors of corporate providers.
The CQC, however, does not have the power to investigate or prosecute cases of murder, manslaughter, health and safety at work act offences, wilful-neglect or ill-treatment. These powers remain with the HSE.
A protocol for liaison on work-related deaths was published in 1998 (revised a number of times) between different enforcement authorities.
What do I need to do!
Corporate companies, care home providers and its directors as a basic, need to ensure that systems are in place to protect them from both health and safety breaches (ie: The health and safety at Work Act 1974 – HASW74) and Corporate Manslaughter in the unfortunate event of a fatality in a care establishment they have responsibility for. Most Health and safety breaches under HASW74 relate to section 2 and section 3. This would include the following:
- They would need to assess the risks their operations present to employees, customers, partners and any other person who could be affected by their activities. (HASW74 section 2 (2) d & e)
- They would need to have effective planning, organisation, control, monitoring and review of their preventive and protection measure this would be the Health and Safety policy document (HASW74 section 2 (3)) – QCS will have all the templates to produce this document if you subscribe to this service.
- They would need to have safety audits of all service provision both full audits and area audits. These can be scheduled or unannounced with a gap analysis to identify any non-conformances with action points and target dates to close these off.
- They should consult with employees about their work-related risks and current preventive and protective measures to ensure they are workable in practice (HASAW74 section 2 (6)) – these could be method statements or safe systems of work, safety meetings, union safety meetings or general supervision. (Employees must know what is expected of them and have a vehicle to express any safety concerns as they have to follow them through each day)
- They should have risk assessments of all significant work-related activities section 3 (MHASAW99)
Under, The Management of Health and Safety at Work Regulations 1999 (MHASAW99) there is an additional requirement to have in place the following:
- They need to have access to competent health and safety advice – this may be an internal or external health and safety professional – this relates to “health and Safety Assistance” under section 7 (Management of Health and Safety at Work Regulation 1999 (MHASAW99)) – if you subscribe to the QCS service package there is lots of advice and an “Ask Shelia” comments box.
The key bit of legislation under the Health and Safety at Work Act 1974 section 37 feeds into the Corporate Manslaughter and Homicide Act 2007 in which directors, managers, company secretary or other senior employee cannot arrange their business in such a way that it leaves them ignorant to avoid the charge of neglect, thus the person (s) in question and the organisation can be prosecuted.
Directors if found guilty not only can be subject to fines and imprisonment, the courts can disqualify Directors under the Company Disqualification Act 1986 section 2 (1)
The Institute of Directors and the HSE have published guidance notes for directors on their responsibility under health and safety law in INDG417 - click
Show me the legislation!
The main legislation is The Corporate Manslaughter and Homicide Act 2007. It states that, if the way in which the activities are managed or organised caused a person’s death, this amounts to a gross breach of a relevant duty of care owed to the decreased. It would have to be proved that the care provider had in its conduct, fallen far below what could have reasonably been expected and that a substantial part of its failure within the establishment, must have been at a senior level. (section 2 (6) (b) & (c))
What penalties could care providers face!
For companies in breach of corporate manslaughter, fines can be unlimited and due to changes in the law, fines are now based on a company’s turnover which in some cases could be in excess of £1million. There is also a maximum of life imprisonment for individual officers (company directors and business owners).
Whilst there may be concern amongst directors, senior managers and company secretaries regarding corporate manslaughter, the key message is to have robust systems in place to manage your health and safety, remembering to undertake audits and reviews to ensure they are fit for purpose, and that they don’t expose you to litigation. Being a subscriber to QCS can provide the necessary material to assist in compliance and the “Ask Shelia” option for clarification.
A number of references have been provided throughout this document within their relevant section.
Also, have a look at the following websites:
HSE website: http://www.hse.gov.uk
CQC website: http://www.cqc.org.uk
Safety and Health Practitioner [online]
QCS provide a range of policies and procedures, templates etc. to support your service in meeting the requirements of the Health and Safety legislation.
*All information is correct at the time of publishing