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Wednesday 28 September 2016
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Corporate manslaughter and general practice

Dr Judith Harvey

D Phil BM BCh, freelance GP, London

Judith is a freelance GP in central London. She is on the council of the National Association of Sessional GPs and has recently returned from Cuba, where she set up an elective programme for UK medical students.

Ten years ago, 31 people died and more than 500 were injured when two trains collided outside Paddington Station in London. The subsequent inquiry found that a host of poor procedures and operational failures had contributed to the disaster. Yet the only prosecution was for inadequate driver training. Since no one person could be identified as responsible for the many other organisational failings, under the existing laws no other prosecution could be brought.

The manifest failure to achieve justice in this and other similar cases led to the introduction of the Corporate Manslaughter and Corporate Homicide Act, which became law in April 2008. It has created a new offence, called "corporate manslaughter" in England, Wales and Northern Ireland, and "corporate homicide" in Scotland. Now an organisation that fails to meet its obligations can be found liable, even if no one person can be identified as responsible.

The new law does not replace or change the existing laws covering health and safety, gross negligence and manslaughter: individuals can still be prosecuted under those laws.

Courts will consider how organisations approach health and safety. This means more than having a folder full of appropriate policy documents gathering dust on the shelf. Courts will be checking whether the organisation puts its policies into practice day by day.

Penalties
The current penalties following conviction under the new law are: an unlimited fine; an order to publicise the offence; and a remedial order, ie, an obligation to resolve the management failure.

In practice, it is expected that fines under the Corporate Manslaughter Act will be higher than those hitherto imposed under existing legislation, perhaps between 2.5–10% of a company's annual turnover.

If a court imposes a publicity order, the organisation is obliged to publicise, in a way determined by the court, details of its conviction and the fine imposed. The ensuing negative publicity could be disastrous for any business, but particularly for an organisation that exists to foster the health of the population.

A remedial order describes the steps an organisation must take to address the problems that led to the fatality, and may require it to demonstrate its compliance to the regulatory body. Remedial orders are not new; they can be imposed under health and safety laws, and, if an organisation were being prosecuted under the new law, it is likely it would already be subject to a remedial order under the health and safety legislation. If it were not, the prosecution could apply for a remedial order.

General practices are mostly small organisations, and if negligence were to lead to a death, it would usually be possible to prosecute a responsible individual successfully. But as practices grow larger and group together to share tasks or devolve them to third parties, it may become more difficult to find an individual who can be held to account under those laws, and charges of corporate manslaughter could be brought. The new law is a reminder that most disasters are the outcome of a series of system failures, and that vigilance is essential to reduce risk.(1)

Safety-conscious culture
A practice owes a duty of care to all who use its facilities. The obligation to provide a safe working environment for all who work in or visit it includes not only the building but the storage, movement, use and disposal of equipment, articles and substances.

A death related to maintenance work on the premises, or due to jumping from unsecured windows, or following infection with a bloodborne virus picked up from improperly disposed-of sharps, could give rise to a charge under the new act. Such a death might well be avoidable. Policies and protocols need to be fit for purpose. Things change. There are new sources of risk, new members of staff and new ways of doing things.

The laws on health and safety are complex, and the employer's liabilities and obligations are extensive. Staff need appropriate job descriptions, induction, education and training, and their knowledge and skills must be kept up-to-date. The Health and Safety Executive, commercial organisations, practice manager advice services and the medical indemnity organisations are some of the many sources of advice – as is Management in Practice.

The practice has a Health and Safety Officer, it has a policy statement, it follows the regulations concerning the control of substances hazardous to health (COSHH), it has a system for reporting injuries, diseases and dangerous occurrences (RIDDOR), its fire policies are up-to-date, it follows the infection control guidelines and it is appropriately insured. But something can still go seriously wrong if the practice does not have a safety-conscious culture.

Responsive and open attitude
Much of the law is only common sense. But a practice needs to have a common sense culture, and this means an open attitude: responsive to comments from outsiders and from insiders.

A risk evaluation by an external party, such as a medical indemnity organisation, can be very helpful, but only if the practice is prepared to accept criticism and change the way it does things. It has to welcome comments from outsiders, whether a plumber noticing the poor lighting on the staircase or a patient pointing out that children can stick their fingers into unprotected electrical sockets.

Doctors rarely spend much time in the waiting room – if they enter the building via a back door and call their patients electronically they may not have even walked through it for weeks – but others do. There is always a patient who has exhausted the diversions of the old magazines and the one remaining fish in the tank and has opportunity to look around and spot the loose floor tiles. Patients and plumbers have to feel able to feed these things back to the practice and to be reassured that action has been taken as a result.

The practice also has to accept comments from inside, and in a hierarchical organisation this can be a problem. Is the new member of staff, coming in with fresh eyes, invited to comment on the good and the less good about how things are done? Or is the senior partner or senior receptionist, or indeed the practice manager, so intimidating that no junior member of the team, whether a receptionist or FY2 doctor, dares to point out the accident waiting to happen?

Many problems can be anticipated. Still, accidents happen. That is where an analysis of something that went wrong is particularly useful. But this has to be taken seriously and not just done to tick the Quality and Outcomes Framework (QOF) box. Is the practice's significant event audit merely designed to meet the registrar's certification requirements, or do the practice manager or partners put themselves in the firing line? And is action actually taken?

The new law is an opportunity to consider whether the practice is as well set up as it can be to reduce the risk of tragic events that are a painful and potentially disastrous experience for the practice.

References
1. Dalziel F. Safety and responsibility: taking a broader view of risk management. Management In Practice 2008;15:26-28.
2. Bajwa J, Bateman C, Pittarides R, Simon C. Handbook of Practice Management. London: Royal Society of Medicine Press; 2009.

Resources

Office of Public Sector Information
www.opsi.gov.uk

Ministry of Justice
Corporate Manslaughter and Corporate Homicide Act 2007: guidance

www.justice.gov.uk

Northern Ireland Office
www.nio.gov.uk

Health and Safety Executive
Website contains guidance on health and safety, including COSHH and RIDDOR
www.hse.gov.uk

Health and Safety Executive for Northern Ireland
www.hseni.gov.uk