The number of excess deaths which have occurred in the UK during the COVID-19 pandemic run into many thousands; this includes patients, care home residents, visitors and employees. Health and social care providers, and government departments, may be vulnerable to criminal charges.
Am I vulnerable to a corporate manslaughter prosecution?
Corporate manslaughter is a criminal offence by a corporation, organisation or government body. An individual person cannot be charged with this offence (although an individual can be prosecuted for gross negligence manslaughter if identified and directly involved).
Who investigates the death?
Where there is a concern about possible manslaughter, the police will conduct an investigation. The Health & Safety Executive or Local Authority will also conduct an investigation relating to possible offences under the Health & Safety at Work Act and will pass to the police any information relevant to a serious criminal offence. The police engage with the Crown Prosecution Service's specialist corporate manslaughter team, for advice on the evidence, before a decision is made to charge the organisation. As a result, the priorities, interests and resources of your local police force may play a part in how likely it is that your organisation will be investigated; this may be affected by media coverage, social media campaigns or complaints made directly to the police.
What action amounts to the criminal offence?
There are specific ingredients for this criminal offence, which we will explain using an example: an employed care worker has sadly died from Covid-19, while caring for residents who have tested positive for the virus. During the investigation, their family reports that they were not given sufficient PPE, and the HSE refer the death to the police.
The criminal prosecution would have to prove, beyond reasonable doubt, that:
- The defendant is a qualifying
This would be satisfied here, as the defendant would be the care home company. This includes private and state-run care homes, NHS Trusts, Local Authorities and major government departments including the Department of Health & Social Care.
- The organisation owed a
relevant duty of care to the deceased.
This would be satisfied here. This includes the duty owed by an employer to their employee.
- There was a gross breach of
that duty by the organisation, in the way the activities were
managed or organised
The jury will decide whether the care home company breached their duty to the employee, and if so, whether that failure was so bad as be to a 'gross breach. This is usually described as behaviour which is 'truly, exceptionally bad' and 'so bad that it amounts to a crime and deserving of punishment'. The jury will consider:
- whether the defendant failed to comply with any health and safety legislation and how serious that failure was;
- how much of a risk of death the failure posed;
- the extent to which the evidence shows that there were attitudes, policies, systems or accepted practices within the organisation that were likely to have encouraged any such failure;
- the contents of any health and safety guidance that relates to the alleged breach; and
- evidence of a poor attitude to health and safety within the organisation.
Depending on the evidence, the prosecution may well argue that the defendant failed to comply with HSE legislation (to ensure the safety of their employees) by failing to provide PPE. If no PPE was supplied at all, after the start of the pandemic, then a 'gross breach' might be proven.
However, section 8(4) of the Corporate Manslaughter and Corporate Homicide Act 2007 allows the jury to have regard to 'any other matters which they consider relevant'. The defendant may be able to demonstrate that it was not possible to buy the necessary PPE because of national shortage, and that they took other interim steps to reduce the risk of infection. A jury might be persuaded that the care home company took all reasonable steps, so that although their actions were breach of duty, they could not be sure that they amounted to a 'gross failure'.
- The way in which activities
were managed or organised by senior management, were a substantial
element in the breach
If senior management were not aware of the legal requirement to provide particular PPE and so did not provide it, then the 'way the care home was managed' would be likely to be a substantial element of the failure to provide PPE. This might also apply where a health & safety manager has left the company and not been replaced, if they had been previously responsible for this aspect of governance. However, if the individual care worker was trained in the use of PPE and where to find it, but decided not to wear it and this was not known to senior management, then this ingredient may not be satisfied. If there was a culture of poor compliance with PPE, it would be necessary to examine which levels of management were aware of this. As a result, where managers become aware of poor compliance with safety measures, they should take decisive steps to rectify this.
- The gross breach of duty was
a cause of the death
The gross breach (the failure to provide PPE) does not need to be the sole cause, nor even the main cause of death, as long as it made a 'more than minimal contribution' to the death e.g. where a care worker has died as a result of multiple illnesses, but Covid-19 has contributed to the death The prosecution must prove that, but for the gross breach of duty, the care worker would not have died at that time, in those circumstances i.e. if they had been provided with PPE, they would not have died when they did. This may be significant if it is demonstrated that the care worker did not contract Covid-19 at work, so that the failure to provide PPE did not result in infection. Expert medical evidence would be needed in relation to the source of the infection, possibly the impact of viral-loading (persistent exposure to the virus), and the degree to which a lack of PPE contributed to the death.
Exemptions from liability
A guilty verdict will be avoided if the defendant demonstrates that an essential element of the offence is missing, for example that there has only been a breach of duty, rather than a gross breach. As a result, the criminal investigation and a charging decision, will depend heavily on the facts of the case, the decisions made, and their context.
Organisations may seek to rely on the exceptions from liability in 'public emergencies' (sections 3 - 7 of the Act). This is relevant to decisions in relation to issues of public policy, such as the allocation of public resources. 'Public emergency' is not defined in the Act, but it is possible that the pandemic may be an appropriate defence.
Sentencing after a guilty verdict
If the jury decide that all five elements are proven, the organisation will be found guilty of corporate manslaughter. Whilst the sentence range is between £180,000 - £20 million, the maximum fine is unlimited and could potentially exceed the range for a very large organisation.
Clyde & Co recommendations
- The HSE may begin investigating a death, before referring it to the police. If your organisation is approached by the police in relation to a death, seek legal advice before providing disclosure.
- If your organisation is already being investigated by the police or the HSE, exercise caution in correspondence. Ask for the full details of the investigation in writing, so that you know exactly what the investigator's concerns are and can gather the relevant evidence.
- Your organisation should ensure that staff are not interviewed by police or HSE investigators without first taking legal advice. What might seem to be 'an informal chat', is often the start of a formal investigation.
The Healthcare Department at Clyde & Co advises health and social care organisations in relation to police investigations. Our in-house lawyers (including barristers) can attend at the police station, liaise with the police, HSE and CQC on your behalf and can obtain immediate witness evidence. Sometimes, providing clarifying information can bring an appropriate end to the investigation.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.