Corporate manslaughter provisions now apply to detained patients

On 1 September 2011 the Government brought into force provisions within the Corporate Manslaughter and Corporate Homicide Act 2007 so as to apply corporate manslaughter to organisations who detain individuals in custody.  This includes patients detained under the Mental Health Act or living in secure accommodation.

Most of the Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008.  The first conviction of a company under the Act for corporate manslaughter was last February.  Cotswold Geotechnical Holdings were fined £385,000.  That verdict is now understood to be subject to appeal.  Further prosecutions are expected to follow, although it is doubtful whether government predictions of 9-12 such prosecutions a year will be realistic for some time.

It is important to understand that corporate manslaughter will only apply where not only the way in which an organisation has managed its activities has caused a person’s death, but that also amounts to a gross breach of a relevant duty of care.  Crucially the activities of senior management need to be a substantial element in the breach of the duty of care.

When the Act was introduced in 2008, duties owed to those in custody were excluded so as to allow the Prison Service and others more time to prepare.  The number of deaths in prison exceeded 150 in 2009, with a number of inquests returning verdicts of unlawful killing.

It is important to understand the precise effect of this change. It will now be possible for an organisation to be at risk of prosecution for corporate manslaughter when the organisation is responsible for the safety of a person who is detained in a custodial institution, living in secure accommodation, or where they are a patient detained under the Mental Health Act.

In fact it is arguable that NHS Trusts and others that owe a clinical duty of care in respect of medical care to detained patients would have already potentially fallen within the scope of corporate manslaughter, before this recent law change. However the extension of the formal scope of the Act to cover a duty of care owed to detained patients clearly will involve additional risk and scrutiny upon all organisations which either formally detain individuals under the Mental Health Act, or who provide clinical services within detention centres or prisons.  Senior managers need to be aware of the provisions, to have a realistic approach to what this means for their own organisation, and to understand the steps that can be taken to minimise corporate risk.