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Corporate manslaughter?

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A patient dies following surgery where the left rather than the right kidney was removed. Could the NHS trust face prosecution for corporate manslaughter?

The offence of corporate manslaughter (corporate homicide in Scotland) was the result of the Corporate Manslaughter and Corporate Homicide Act 2007. This act, which came into force last month, seeks to ensure that companies do not escape responsibility for deaths resulting from gross negligence.

The act abolishes the common-law offence of corporate manslaughter by gross negligence. This is replaced with statutory offences that can be committed by organisations if its activities are managed or organised in a way which (a) causes a person’s death, and (b) amounts to a gross breach of a relevant duty of care.

An organisation is guilty of an offence only if the way in which its activities are organised by its management is a substantial element in the breach of the duty
of care. This is defined widely. It includes duties to a detained patient but excludes any duty of care owed by a public authority in respect of a decision as to matters of public policy (including the allocation of public resources).

To establish guilt by the trust or ‘corporation’ in this situation, more information is required. What systems were in place to identify the side to be operated on? What risk assessments had been carried out? To what extent had the risks been managed to ensure they were minimised or eliminated?

If there is evidence of a gross breach of duty, a prosecution could be brought against the trust and the jury would determine whether this has been established beyond reasonable doubt.

If convicted, the organisation would have to publicise details of the offence, the fine and the terms of any remedial order.

An individual cannot be prosecuted under the act. If the death was entirely due to the gross negligence of the surgeon, the surgeon could be found guilty of manslaughter at common law.

Bridgit Dimond, MA, LLB, DSA, AHSA, is barrister-at-law and emeritus professor, University of Glamorgan, Pontypridd

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