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Corporate Manslaughter

Corporate Manslaughter. Colin Phillips Head of Investigations and Inquiries Department of Health. Corporate Manslaughter. The New Offence Came into force on 6 April 2008 Abolished the old offence of Gross negligence manslaughter Created no new obligations or duties

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Corporate Manslaughter

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  1. Corporate Manslaughter Colin PhillipsHead of Investigations and Inquiries Department of Health

  2. Corporate Manslaughter The New Offence • Came into force on 6 April 2008 • Abolished the old offence of Gross negligence manslaughter • Created no new obligations or duties • Runs with current Health and Safety legislation

  3. Corporate Manslaughter is • Committed by an organisation if the way in which any of its activities are managed and organised (a) causes a death and (b) is a gross breach of a relevant duty of care which the organisation owed to the deceased

  4. Role of senior managers • Senior managers must be involved for the offence to be committed • Board to Ward- could cover non executives and could reach down to ward level • The responsibility for Safe procedures and risk management cannot be delegated but can be shared

  5. Duty of Care • A relevant duty of care must be owed • Will cover most NHS activities • As occupier of premises • As employer • As provider of goods or services Does NOT apply to public policy decisions e.g. funding Or some emergency situation e.g. triage

  6. Penalties • Unlimited fine • Remedial and publicity order • Follow up re implementation

  7. Custody • The main provisions for custody- those relating to prisoners-do not commence on 5 April • But for DH this will also cover patients detained under the mental health legislation where there exists “a duty owed to a person who, by reasonof being a detained patient, is someone for whose safety the organisation is responsible • Becomes operational by affirmative regulations; promised between 3-5 years • So • IS THERE ANYTHING WE DO FOR DETAINED PATIENTS WHICH IS NOT A PROVISION OF GOODS OR SERVICES ?

  8. Operational activity • “An examination of an organisation’s culture” • There must be a policy of proper risk management, a viable structure to carry it out, and regularly review it • Proper organisational behaviour will be a safeguard against a charge of corporate manslaughter • “You must demonstrate a good system, actively enforced and regularly reviewed”

  9. SIO assessment guide to the application of the new corporate manslaughter offence in a healthcare setting Generally the offence of corporate manslaughter will apply to deaths in the workplace but may also apply in situations where members of the public are killed due to the activities of companies or other bodies covered by the Act. POTENTIAL CORPORATE LIABILITY Was the deceased an employee whose death was connected with their work, or patient/client in the care of the healthcare provider? JURISDICTIONDid the harm that caused the death occur in  the UK or its territorial waters, on a British ship/aircraft/hovercraft, an offshore facility governed by UK law Not applicable for investigation under the CMCH Act 2007 ORGANISATIONIs the organisation involved: A corporation A department or other body listed in schedule 1 A Police force A Partnership, or a trade union or employer’s association, that is an employer. RELEVANT DUTY OF CARE1. Was the victim an employee of the organisation concerned?2. Were they otherwise working for the organisation or performing services for it.3. Was the death connected with premises occupied by the organisation?4. Does the death relate to: Goods supplied by the organisation? Services supplied by the organisation? Construction or maintenance carried out by the organisation An activity pursued by the organisation commercially? Use or keeping by the organisation of plant, vehicles, equipment or other materials?5. Was the victim in the custody of the organisation? Do any of the exemptions apply?Military; Police; Fire; NHS; Emergencies; Probation; Child Protection COMMENCEMENT (following investigation): Did the gross management failing that caused the harm that caused the death occur after 06/04/2008? Did the gross negligence that caused the death in whole or in part occur before 06/04/2008? Was the gross management failing that caused the harm that caused the death a continuation of failings that occurred before 06/04/2008? Was that continued failing after the 06/04/2008 both causative and grossly negligent? Consider Corporate Manslaughter under the CMCH Act 2007. It will now be necessary to establish that senior management failures resulted in a gross breach of the relevant duty of care which caused the death Key Yes No Consider corporate manslaughter under common law

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