Scottish NHS board named in rare hospital corporate manslaughter probe

Health and safety experts Bruce Craig and Fiona Cameron of Pinsent Masons were commenting on the latest development in an ongoing police investigation into a number of deaths at the Queen Elizabeth University Hospital (QEUH) campus.

“There’s yet to be a corporate manslaughter prosecution in Scotland under the 2007 Corporate Manslaughter and Corporate Homicide Act and whilst this latest move is a clear sign that the possibility remains on the radar, the fact remains that of the 32 successful prosecutions in the rest of the UK under the 2007 Act so far most have been raised against small to medium sized companies. There has not been a single successful prosecution of a public body,” said Craig.

The only attempt - of an NHS Trust in 2016 - resulted in acquittals for both the Trust and one of its doctors.  More recently, however, the Crown Prosecution Service in England has authorised charges against a London-based NHS trust over alleged corporate manslaughter following the death of a patient.

The 2007 Act was introduced in response to a number of large-scale disasters, including the Piper Alpha oil rig disaster and the Kings Cross station fire. It introduced a new means of establishing liability through the actions of senior management, in place of the need under common law to find the ‘directing mind’ of the company to be ‘at fault’ – which is known as the ‘identification doctrine’, and was widely believed to have hindered prosecutions.

“In large modern companies, decision-making is complex and taken at various levels,” said Cameron. “The identification doctrine makes it extremely difficult to identify individuals of sufficient seniority whose actions were so reprehensible that they could be found to be the actions of the company,” she said.

Under the 2007 Act, an organisation can be found liable where it owes a duty to take reasonable care for a person’s safety and the way in which activities of the organisation have been managed or organised amounts to a gross breach of that duty and causes the person’s death. How the activities were managed or organised by senior management must be a substantial element of the gross breach.

According to Cameron, however, the test for a ‘gross’ breach remains an extremely high threshold to meet, although it is defined more clearly by way of statutory guidance. Essentially, the senior management must have played a substantial role in the gross breach which causes death, and a substantial element of any breach needs to be in the way those activities were managed or organised by the senior management.

“It was hoped that the removal of the identification doctrine from the 2007 Act would facilitate prosecutions of larger companies and bring home the importance of health and safety. However, the requirement to identify ‘senior’ management, and for such senior management to be ‘substantially’ at fault, has done little more than broaden the scope of the previous identification doctrine,” she said.

“Most, if not all, fatalities in the workplace can be attributed to many different aspects of the organisation. Very rarely is there one single cause of a fatal incident. Any attempt to pin liability onto an organisation where its conduct is a cause and not necessarily the cause of death would be concerning. It is not difficult to predict a scenario where any cause of death in a workplace can be tracked back to the organisation, but not all of which dictate that it should be found liable for corporate homicide,” added Craig.

As an alternative to the 2007 Act, another way to hold senior officers to account in cases of fatalities in a workplace comes under the 1974 Health & Safety at Work Act (HSWA).

“Statistics show that the vast majority of prosecutions under the HSWA are successful. An individual within an organisation can be held to account under the HSWA when a health and safety breach can be shown to have been personal fault of that individual. Separately, any officer of an organisation is personally in breach where the organisation committed an offence with the ‘consent or connivance of, or to have been attributable to any neglect on the part’ of that officer. This may go some way to explaining why there have, so far, been no prosecutions in Scotland under the Corporate Manslaughter and Corporate Homicide Act,” said Craig.