Later this month the outcome of the prosecution of the Mid Staffordshire NHS Trust will be known.  The trust became notorious for widespread failings in care and was the subject of a substantial review by Robert Francis QC. The trust has already pleaded guilty at the Magistrates Court to criminal offences in failing properly to manage and organise hospital services including all systems of record keeping and sharing patient information between staff members.

At the time the magistrates ruled that their sentencing powers were insufficient, as fines imposed by them cannot exceed £20,000. The matter was therefore transferred to the Crown Court where the trust could face an unlimited fine.  At this stage no one has an idea what the level will be, although it is likely to be substantial.

It should be noted that the fine will need to be paid direct by the Trust. The NHSLA (National Health Services Litigation Authority), which is the body responsible for indemnifying NHS organisations against legal claims, does not cover criminal prosecutions and their consequences. For a trust already in administration, the introduction of criminal law and fines therefore adds a new and difficult dimension to an already problematic situation. However, a substantial fine will send a message to other trusts providing poor quality service that there will be intervention and the financial consequences may be very significant.

This particular Trust has come to court as the result of an investigation by the Health and Safety Executive (HSE), which in itself is a highly unusual move. The HSE have prosecuted hospital trusts previously but not often. Basildon and Thurrock University Hospital NHS Trust was successfully prosecuted and ordered to pay a fine of £350,000 (including costs) in September 2013 relating to the development of legionnaires disease in the hospital’s water system.

Nevertheless, it is unusual the HSE becomes involved in prosecutions of this kind. Their role is much more concerned with incidents in the workplace and failures to have regard for the safety of employees. The primary regulator of health care is in fact the Quality Care Commission (QCC) and following the Francis report it was decided that the new chief inspector of hospitals would be appointed.  If the inspector is of the view that a hospital has been criminally negligent the matter would then be referred to the HSE. It appears that the QCC wants to leave these prosecutions to the longer established HSE.

Recently there has been agreement between the QCC and the HSE to work together on fatal cases where the death could not be clearly attributed to a clinical decision. On occasions the two have had overlapping authority and it is hoped that they can work together on difficult cases to produce detailed investigations. There is more than a suspicion that the QCC is hoping the HSE will take on most of the work.

However whilst it is certainly true that the HSE has significant expertise in dealing with fatal accidents, incidents of the kind described in Stafford (and indeed in Basildon) are not ones it deals with regularly. It has already expressed concern at its lack of experience in these areas.  These are complex and multi-faceted cases where there may be many failings which led to the death. Not all of them fit neatly into statutory rules or protocols.

Further the HSE has suffered significant budget cuts which, it could be argued, reduce its ability to do the job for which it was designed. Certainly some commentators have expressed concern at their ability to complete investigations properly.

Whilst the intervention of the HSE is of course to be welcomed, it remains to be seen whether they will be able to provide a full service in order to ensure safety at hospitals or whether they will only ever be able to deal with the most significant breaches, once again leaving patients vulnerable and exposed.

The involvement of the HSE also highlights that the QCC may once again be found to be lacking in areas where it should be robust and proactive.

Either way the patient and their family are still not guaranteed a proper review of events where deaths have occurred.  This has to remain a concern for all involved in clinical care and its consequences, legal and personal.