On the back of Friday’s announcement by The Crown Prosecution Service (CPS) that it is bringing the first ever charge in the UK under the Corporate Manslaughter and Corporate Homicide Act 2007, the implications for the healthcare sector are now very real.

Potted history

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008, with implications for health bodies and their senior managers. Organisations require to identify the risks that may give rise to liability, and put in place systems to manage these risks effectively.

Healthcare organisations will be guilty of corporate manslaughter if the way it manages or organises its activities causes a person's death, and amounts to a gross breach of the duty of care owed to that person. Almost all of a healthcare body's activities will fall within the ambit of the act.  Read more about it here.

What’s happened since April 2008?

Between December 2007 and June 2008, 18 patients died at the Vale of Leven Hospital in Dunbartonshire after contracting the Clostridium difficile (CDif) bug. At the time, the Health Secretary highlighted she was more interested in getting this right and learning lessons than trying to have an exercise of apportioning individual blame. Read the newstory in full here.

Justice Minister Maria Eagle spoke at an NHS Confederation event on the impact of the Corporate Manslaughter Act on the NHS back in September 2008. In it she highlights that an 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. Read her speech in full here.

Both of these news article illustrate the importance of NHS organisations adopting a ‘top down’ organisation-wide approach when it comes to minimising risks from this new legislation, and the importance of ensuring any systems and processes for managing safety must be in place; as any management failures lie across an organisation, it is the organisation itself that will face prosecution.

What should NHS Trusts do?

Risks can be minimised within an organisation by putting some basic procedures in place:-

1. Organisaton should have in place an effective Health and Safety management system.
2. They should be aware of the numerous health and safety policies and legislation they have to comply to, and have clear action plans to achieve this compliance.
3. Organisations should have a clear policy for dealing with potentially lengthy, disruptive and highly intrusive police and/or Health and Safety Executive (HSE) investigations under the Act in the event of the death of someone where poor management is, or might be, to blame.

The Way Forward

Only time will tell if the NHS chooses to adopt, and put into practice, important life saving systems and procedures that will ensure the safety and reputation of the NHS for the next 60 years.

Let us know what you think - is there an easier way for Trusts to adopt these procedures?

Quick quiz - Is your organisation minimising risk? does it know the answer to these questions:-

• Organisational charts - how is responsibility allocated?
• Who is a Senior Manager - Do they know that they are a senior manager and that the Act might apply to them?
• Do they understand their responsibilities under the Act?
• Who has Board responsibility for risk? Is the delegation of tasks by the Board appropriate?
• Risk management policies - are risk assessments completed? Identify areas of risk, for example, estates. Allocate grades of risk and consider how high risk areas can be improved.
• Policies: are they workable and effective?
• Are the implementation of policies audited? Are the results of audits retained and actioned?
• How are staff notified of changes to Trust policy and for example, NPSA Alerts or the issuing of new guidance by NICE?
• What is the system for reviewing near misses/trends in incident reports?
• How are recommendations arising from internal investigations, SUIs and external inquiries implemented throughout the Trust?
• Staff training records: is there robust communication and training about the content of policies to staff and records kept?
• Recruitment and training: how does the Trust manage the effectiveness of members of staff, undertake appraisals, and manage problems for example, underperformance?