Criminal liability in health and social care settings – the changing landscape

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6 min read

An increased focus on accountability for poor standards of care means that providers and their staff are at greater risk of criminal prosecution than ever before.

An increased focus on accountability for poor standards of care means that providers and their staff are at greater risk of criminal prosecution than ever before.

Overview

The public inquiry into the Mid Staffs scandal conducted by Robert Francis QC has led to a large-scale shake-up of the health and care sector. As well as advocating a ‘culture of candour’ the report also proposed tougher penalties and the use of criminal sanctions to enforce a ‘zero tolerance’ policy for poor quality care.

Since publication of the Mid Staffordshire report in February 2013, there has been a marked change in approach taken by the police and regulators who appear to have adopted the spirit of the report and demonstrate an increasing willingness to pursue criminal charges against both organisations and individuals for failures in patient care.

Criminal liability

There are a number of different ways in which a provider organisation, its directors and its employees can be held accountable in criminal proceedings for care failings.

We take a look at some of the key developments in criminal liability – they are a salutary reminder to healthcare leaders up and down the country of the potential consequences when something goes wrong.

Corporate manslaughter and gross negligence manslaughter

January 2016 will see Maidstone and Tunbridge Wells NHS Trust face criminal charges for the offence of corporate manslaughter. This follows the death of a patient undergoing an emergency caesarean section at Pembury Hospital in October 2012. The two anaesthetists responsible for the patient’s care are also being charged individually with gross negligence manslaughter.

While this is the first time an NHS trust has been charged with the offence of corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 since the offence was introduced in 2008, the Tunbridge Wells prosecution follows in the wake of the first successful corporate manslaughter prosecution of a care home provider earlier this month.

Sherwood Rise Limited admitted the charge over the death of an elderly resident in 2012. Yousaf Khan, a director also admitted causing the death of an elderly resident through gross negligence.

In November, a jury at Nottingham Crown Court also found a doctor guilty of the manslaughter by gross negligence of a six-year-old boy. Dr Hadiza Bawa-Garba was accused of medical failings in the death of Jack Adcock after he was admitted to Leicester Royal Infirmary. Dr Bawa-Garba has been given a two-year prison sentence, suspended for two years.

We are representing an increasing number of clients in respect of lengthy police investigations in a healthcare setting that a few years ago would have been passed onto the coroner within days. Indeed, some cases are being referred back to the police by the coroner once further information, including internal investigation reports, have been disclosed.

Health and Safety at Work

Following stinging criticism by Robert Francis QC, the Health and Safety Executive has launched a number of prosecutions against Mid Staffordshire NHS Foundation Trust for breaches of section 3(1) of the Health and Safety at Work Act 1974 relating to the death of patients under its care between 2005 and 2014.

While there have always been a small number of prosecutions brought by the HSE over patient care, it was felt by the Public Inquiry that there was a ‘gap’ in respect of clinical failings where cases would fail to be investigated by either the HSE or the CQC. A new ‘Memorandum of Understanding’ between the two organisations tries to ensure that they work more effectively together and identify the lead regulator. In practice, this does seem to have resulted in the HSE being more involved in individual cases, particularly where there has been a patient death that relates to systemic failings over and above the traditional ‘estates’ issues that have been their focus in the past. For example, we have been advising one client in respect of the HSE’s investigation focusing on the risk assessment process when granting leave to patients detailed under the Mental Health Act.

New criminal offence of wilful neglect

Sections 20-25 of the Criminal Justice and Courts Act 2015 (CJCA 2015) set out a framework of offences for wilful neglect of a patient. While there has long been specific offences under the Mental Health Act and the Mental Capacity Act, this new offence applies to all patients whatever their mental condition.

For the purposes of the offence, a care provider is defined in CJCA 2015, section 21 as a “body corporate or unincorporated association which provides or arranges for the provision of health care”. The vast majority of provider organisations including NHS Trusts are therefore caught . The new offence will also apply to the individual responsible for providing care.

For provider organisations, penalties will include fines, and/or the issuing of publicity orders and remedial orders, similar to those available in respect of convictions of corporate manslaughter. The offence is designed to ensure that there is “ultimate accountability for those guilty of the most extreme types of poor care”.

These new provisions will apply to offences committed on or after 13 April 2015 and consequently, we are yet to see the full impact of the changes. While there was some concern over the lack of individual accountability for those directly involved in the scandal at Mid Staffordshire, there will also be a danger of such a serious charge being deployed too often. Recruitment of healthcare staff is already problematic and increased personally accountability may make it even more difficult to get the right people doing the job.

New sentencing guidelines effective from February 2016

On 3 November 2015 updated sentencing guidelines “Health and safety offences, corporate manslaughter and food safety and hygiene offences: Definitive guideline” was published. The guidelines apply to any organisation sentenced on or after 1 February 2016. They set out a structured approach to sentencing that the courts will be expected to follow.

Although the criteria for sentencing has not changed, the guidelines are clearly promoting a significant increase in the levels of fine that should be adopted in cases related to a fatality...

So what does this all mean for providers?

Criminal liability in matters of patient and service user care is becoming increasingly prevalent, and the trend looks set to continue. Regulators have demonstrated an increased appetite for criminal prosecutions and have the popular mandate to justify such appetite. Not only that, but they have at their disposal a growing number of criminal offences, and tougher sentences guidelines for organisations convicted.

Looking ahead

The Maidstone and Tunbridge Wells case has the potential to establish a number of precedents for future prosecutions throughout the healthcare sector. The case will prove a significant and pivotal point in what is proving to be an inevitable move towards increasingly tougher regulation of the healthcare sector, as the ‘zero tolerance’ culture proposed by Robert Francis QC starts to take effect. Whether there will be unintended consequences as providers start to reconsider the risk versus reward equation remains to be seen.

How Mills & Reeve can help

We regularly advise clients on all aspects of serious incidents including investigations that may result in appearance in the civil, criminal or coroner's courts, as well as in front of the GMC.

If you require information please get in touch with Duncan Astill or Philip Grey.

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