White coat crime: Corporate manslaughter in the GP practice

The Corporate Manslaughter and Corporate Homicide Act 2007 contains requirements to secure a conviction:

  • The defendant was a qualifying organisation
  • The organisation owed a relevant duty of care to the deceased
  • The duty of care was grossly breached
  • A substantial component of the breach occurred as a result of the way the organisation is managed

Assessing the seriousness of the offence

The court will consider four factors to assess the seriousness of the offence:

  1. Foreseeability of serious injury
  2. What degree the offender fell short of the appropriate standard of care
  3. Frequency of breaches of the kind in question will be considered
  4. Rate of fatalities and serious injuries will be considered[1]

Calculating the fine

Fines used to remedy a breach are intended to be substantial to emphasise the need for a safe environment.

The annual turnover is a starting point for calculation of a fine. This figure will then be reviewed in light of the possible impact on employees and the economy, however, the impact partners will not be considered and the court can issue a fine so great that it results in the company ceasing to exist.[2]

Aggravating considerations relevant to GPs include falsification of records, evidence of cost-cutting which impacted safety, poor health and safety records and a statutory aggravating consideration for previous convictions of a similar nature.

Any benefit the practice has derived from the breach, such as money saved from cost-cutting or operating ineffective health and safety procedures will be added to the fine.

GPs should be aware of mitigating considerations including evidence that steps have been taken to address the breach, hearty co-operation with the investigation, adequate health and safety record keeping and procedures. Events that were beyond the responsibility of the GP will be considered as a mitigating factor, however, the actions of the patient are unlikely to be considered.

Implications for GP partnerships

Only partnerships which employ staff can face corporate manslaughter charges.

Under the law in England and Wales, partners are responsible jointly and severally liable.[3] However, liability for damages should not come from personal savings or assets.

Practical takeaway

‘Near misses’ should be dealt with swiftly, and measures should be taken to minimise the risk of future incidents. Where a member of staff is deemed to have breached their duty of care, further training should be provided. Effective health and safety procedures should be in place, which includes record keeping.

Footnotes
[1] Sentencing Council ‘Health and Safety Offences, Corporate Manslaughter and Food Safety Hygiene Offences: Definitive Guideline’ 2015 accessed 09.01.19
[2] Sarah Field ‘Criminal liability under the corporate Manslaughter and Corporate Homicide Act 2007: A changing landscape’ International Company and Commercial Law Review
[3] Partnership Act 1890 s.9


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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