On 16 December 2015 we reported on the increasing focus of the public, regulators and prosecutors on public sector bodies’ health and safety standards. That article referred to the decision to charge the Maidstone and Tunbridge Wells NHS Trust (the “Trust”) with corporate manslaughter under the Corporate Manslaughter and Corporate Homicide Act 2007 (the “Act”). The Trust was the first public body to face a corporate manslaughter charge under the Act, and the largest organisation of any kind prosecuted for the offence so far.
On 28 January 2016, Mr Justice Coulson found that there was no case to answer against the Trust, and instructed the jury to acquit the Trust accordingly. The decision sends a clear message to public sector bodies that, despite the increased public scrutiny that we previously reported on, the justiciary, as an independent body, will apply the Act robustly.
The case arose as a result of the death, on 9 October 2012, of Frances Cappucini at Tunbridge Wells Hospital, which was operated by the Trust. Ms Cappucini was anaesthetised as part of a postpartum haemorrhage operation following an emergency caesarean section. She did not wake up from the anaesthetic and died after suffering a cardiac arrest three hours after giving birth.
The Crown Prosecution Service (the “CPS”) alleged that medical staff failed in the “elementary task of protecting [Ms Cappucini’s] airway” so that sufficient air would have reached her lungs as she recovered from the operation, that the staff had been grossly negligent and, therefore, that the Trust employed people it knew or should have known were not suitably qualified or trained.
The consultant anaesthetist involved in the emergency caesarean section was charged with gross negligence manslaughter, but Mr Justice Coulson also found that there was no case to answer against him. The CPS brought the same charge against the doctor who it saw as primarily responsible for Ms Cappucini’s care, who may have ignored advice to use more intensive methods than a facemask to ensure that Ms Cappucini was breathing properly. That doctor, however, left the country before the trial.
The outcome of no case to answer must mean that, in the opinion of a highly respected senior judge, the decision to prosecute was wrong. Mr Justice Coulson called some of the arguments against the Trust “perverse” and stated that the medical staff displayed some conduct that was “about as far from a gross negligence manslaughter case as it is possible to be”. For that reason, the case may prompt the CPS to review its policy with regard to prosecutions under the Act. Nevertheless, we expect that the CPS will continue to investigate possible instances of corporate manslaughter and, where it feels appropriate, attempt to prosecute. Scrutiny of public sector bodies’ health and safety standards is therefore unlikely to subside.