On 1 September 2011, the Government brought into force section 2(1)(d) of the Corporate Manslaughter and Corporate Homicide Act 2007, extending the scope of the Act to include the deaths of detained mental health patients, prisoners in custody, detained asylum seekers and persons living in secure accommodation. From that date, an NHS organisation (or private healthcare provider) can be convicted of a corporate manslaughter offence if the way in which its activities were managed or organised caused a person’s death and amounted to a gross breach of the duty of care owed to the deceased by virtue of that person being held in custody, detained in a mental health hospital, a detention centre or secure accommodation.
It was arguable that the Act already extended to NHS organisations providing clinical care in settings such as prisons and secure units, but any doubt is now removed. The death of a prisoner who has been receiving healthcare, or the death of a detained patient, may now lead to the police investigating whether a criminal offence has been committed by the NHS organisation that was providing care. The maximum penalty for such an offence is an unlimited fine.
It is worth restating what this means for organisations who may face such a prosecution. The offence of corporate manslaughter is committed by an organisation if the way in which its activities are managed or organised:
- causes a person's death; and
- amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.
On top of these requirements, the role of the organisation's senior management must be a "substantial element" of the breach of duty for an offence to have been committed.
Any individual whose negligence contributed to the death could still face personal prosecution for gross negligence manslaughter.
Mental health trusts and those NHS bodies who provide healthcare in any custodial setting (prisons, young offender institutions, secure accommodation, immigration detention centres etc) should be aware of this change in the law. In the event of a death which is likely to lead to significant criticism of your organisation, you should take legal advice at the earliest opportunity.