Healthcare Business: Thou Shalt Not Kill. It was and is the first of Moses commandments. It remains the first and enduring crime against human society.

Over the years it has attracted the highest penalty from the law, namely that a life be taken in retribution, by way of punishment, for taking the life of another.

Since the mid-1960s, English sentencing, according to the law, has mitigated the ultimate sanction. Some would suggest that decades in prison is a more cruel sentence than the immediate finality of retributional killing.

Against that introduction, a sentence of 42 months, with reduction for good behaviour seems on the light side for, albeit on a guilty plea; presiding over a horrific failure in care by those to whom care and safety was entrusted.

On the other hand, the prospect of care providers being imperilled following failures in care service, will be daunting and may inhibit investment in the sector.

At about the same time an over optimistic attempt to criminally stigmatise a Hospital Trust and Medical professionals in their employment failed miserably, having been presented in the most dramatic and high profile terms. This action is bound to leave those individuals accused despite their acquittal, shocked and marked for a considerable time, if not the rest of their natural lives. All this for what the judge described as a tragic accident. The obsession with naming and shaming was truly out of control. It is hard to imagine that the legal advice preceding such a fiasco did not forewarn. It shows a dangerous precedent – even if we cannot sustain a conviction, we will punish in any event in the court of public opinion.

In that shadowy dock, care providers on the cup of a populist coconut shy will naturally fear ruin even if their alleged guilt is based on nothing more that hyperbole, unreflective review of evidence and a desire to appease the crowds at the guillotine rather than ensure justice is done. These are very real risks

Risk management and calm and objective self-defence from an outset are essential to combat this cancer of any target will do to assuage public opinion.

Taking the life of another is broadly divided into two wrongs:

1. Death following deliberate actions – murder

2. Death arising out of wrongdoing which does not include a deliberate intent BUT citizens are to be taken to intend the natural consequences of their actions.

In reality, in some cases, this distinction may be led more by anticipation of a successful prosecution rather than objective analysis of evidence: A prosecution may be more likely to succeed if the allegation is a serious mistake rather than a deliberate act (particularly in health and care cases)

The Ingredients of the offence

Given the high status it is important to understand what constitutes an offence of homicide (killing a human being)

1. There must be a death. However, culpable the conduct, there can be no offence of homicide without a death.

2. To secure a conviction, the death must be caused by the actions of another person ie the one accused

3. Those Actions must be culpable.

Actions of another

Herein lies the difference between murder and manslaughter- murder is with intent. For manslaughter that intent will be absent either in fact or in law as a result of surrounding circumstances removing the obvious inference of intent.

Here lies the problem that has arisen where services alleged to be culpable, are committed by and on behalf of a corporation.

A corporation cannot have feelings or an intent, it must, at common law, be judged on the actions of its officers or employees.

Accordingly to convict a corporation, the necessary wrongdoing had to be established against an individual who is also convicted. The corporation can only be convicted if that individual was the ‘controlling mind’ of the corporation.

Quiet clearly it will be much easier to identify a controlling mind and secure a conviction against individual and corporation, where that corporation is a small organisation.

Beware the small/medium family business. At least make sure your legal protection insurance is adequate. The financial penalty cannot be insured, the very significant defence costs can. Even on acquittal recovery of costs is not guaranteed and is not available in Health and Safety cases.

Public disquiet at the failure to hold major corporations to account for wrongdoing leading to death (by manslaughter conviction) led to the Corporate Manslaughter and Corporate Homicide Act 2007.

‘An organisation is guilty… if the way in which its activities are managed or organised-

-causes…death and

-amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased

N.B Organisations are only guilty if the way activities are managed by senior management  is a substantial element in the breach of duty.

No need for a controlling mind conviction or an individual convicted but the actions of the board can be viewed as a whole

It is hardly surprising that there have been few prosecutions and even fewer convictions. Most of the convictions would have still occurred under common law manslaughter.

Otherwise the elements of the offence are the same.

The prosecution must establish wrongdoing and this is usually equated to EITHER

– A criminal offence which leads to death of another e.g a serious assault which results in death even where there is no intent to kill or cause serious harm.

– BUT just consider breach of Health and Social Care regulations or actions, justifiable with service user consult where no such consent is obtained, or, were none can be obtained. The intervention may well be a criminal assault

– Negligence but not any negligence – breach of duty arising by negligence must be gross. (Sometimes said to be gross and obvious). This is sometimes shortened to such a bad breach as to justify criminal sanction.

This will be a matter for the jury. On this analysis it is easy to see why prosecution of major hospitals pose massive hurdles for prosecution and rightly so.

In the case of the convicted care home owner, the facts as reported (but not proven) present a litany of a gross failure which seems so obvious that one can understand the guilty plea.

Providers, in this name and shame environment, must take risk management seriously. Risk Assessments, Policies regularly reviewed, clear delegation of responsibility and regular review to check implementation of routine policy is essential. Above all, as the Lyme Bay (Kite) case showed providers must show objective reflection to reports or evidence of failures. Disgruntled staff and whistle-blowers may be in irritating but they must be treated seriously, and, actions taken and shown to be taken. Failure, particularly where mixed with arrogance, may prove fatal to a victim and attract the highest penalty for a so called perpetrator.

There is no public sympathy toward care providers. These providers must take all steps with appropriate advice to show a careful reflective and effective approach to the identification and management of all risks. Any risks in care can have a fatal impact.

Providers: Do not hope-Do not rely on good luck, Prepare and Manage!

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