The impact of the coronavirus pandemic on health and care workers is unprecedented in our time. Services under strain before the crisis must now operate under even greater pressure and providers and individual clinicians are having to make resourcing decisions with significant consequences.
Those having to make such decisions will no doubt be concerned about legal ramifications if their actions prove to have been less than optimal in hindsight. Inquiries and investigations into how the crisis was handled are inevitable, as well as legal challenges that follow allegations of negligent care and breaches of legal rights.
Executives and practitioners reading the industry press could also be forgiven for thinking that COVID-19 criminal prosecutions are also unavoidable. However, such predictions do not appear well founded.
Gross negligence manslaughter
Gross negligence manslaughter has been a hot topic in the industry for a while. Professionals see a conflict between the offence and the need for openness when things go wrong. There is not an unreasonable belief that in a medical context the offence can lead to great injustice; how can it be right that a practitioner working under great stress and making life and death decisions with only good intentions can make a mistake and be found criminally liable for it, with all that entails?
The offence is committed when an individual’s negligent breach of duty causes a person’s death and the negligence is so reprehensible as to amount to gross negligence and therefore a crime. Gross in this context is not defined but is a question for a jury to determine.
Uncertainty arising from the language used to define the offence and the absence of an “intent” element have been the source of much criticism. They have led to a number of high profile appeals in which convictions were overturned, most recently in the case of R v Honey-Rose.
There are no plans to change the law to introduce an ‘intent’ element but the aforementioned appeal cases have contributed to what is now an extensive body of case law providing greater certainty in how the ‘gross’ element of the offence should be interpreted. It has established that the negligent act must be “truly, exceptionally bad” and that mistakes, even very serious mistakes, will not suffice to meet the threshold. It is also necessary for prosecutors and juries to consider the act having regard to “all the circumstances”.
Data cited in the Independent review of gross negligence manslaughter commissioned by the GMC (published April 2019) revealed that out of 192 Crown Prosecution Service cases concerned with the offence between January 2007 – March 2018, only 12 involved the prosecution of healthcare professionals.
The Williams urgent policy review (published June 2018) cites data showing that from 1994 until date of publication, there had been 47 prosecutions of healthcare professionals for the offence resulting in 23 convictions, four of which were overturned on appeal.
This data supports a conclusion that prosecutions of medical professionals for gross negligence manslaughter before COVID-19 were exceptionally rare and trending downward. This makes sense, since the increasing body of case law should see a reduction in inappropriate investigations and prosecutions.
COVID-19 is placing greater pressure on frontline staff, but it would seem far from certain that such pressure will result in an increase in criminally gross breaches of care if the case law is properly applied. Add in the public sentiment around those on the NHS frontline and it is difficult to see a likely increase in charges of gross negligence manslaughter.
Corporate manslaughter
Executives may have concerns that provider-level decisions leading to avoidable deaths may expose their organisation to corporate manslaughter charges. The threshold for committing the offence is high: managerial breach of duty must be “gross” and a direct causal link between the act or omission and the death is required.
Prosecutions are rare. Since the offence came into force in 2008 there has been only one conviction of a healthcare provider. The first and to date only attempt to prosecute an NHS Trust for the offence was dismissed on the basis of no case to answer.
In addition to the high threshold for committing the offence there are statutory exceptions from liability in respect of matters of “public policy” or where an organisation is fulfilling an “exclusively public function” (such as emergency preparedness) that may apply to the response. There is also a partial exemption that applies to decisions made in “emergency circumstances” (the definition of which is arguably satisfied by the crisis) that may cover prioritisation of patients in hospital.
Health and safety offences
A common approach to prosecuting organisations for systemic failures is to charge them with health and safety offences. The general duties at sections 2 and 3 Health and Safety at Work etc Act 1974 require an organisation take “reasonably practicable” steps to secure the health and wellbeing of employees and those affected by its undertakings.
This is a much lower threshold than for corporate manslaughter. Whilst the offence may not carry equivalent stigma, the penalties upon conviction are similar. Context remains key, though, since what constitutes reasonably practicable steps will depend on circumstances: a global pandemic inducing national resource shortages is clearly a relevant circumstance.
Acting in the public interest
The criminal penalties explored in this article are important for ensuring accountability when things go wrong, but they must be used proportionately and with care. If the offences are applied correctly there is no reason why the response to the COVID-19 pandemic should result in increased prosecutions.
Any prosecutions that are brought must be in the public interest and there may be failings that occur during the COVID-19 crisis that truly are so bad as to be criminal. However, such instances will be rare and with public support for the health and care sector at an all-time high, it is difficult to see prosecutors having an appetite to bring charges save for in cases where the failures are blatant and egregious.
About the authors
Duncan Astill, Partner
Duncan specialises in regulatory enforcement action. He leads the regulatory team which supports clients through a wide variety of public law disputes, regulatory investigations and enforcement action.
Sam Lindsay, Senior Associate
Sam is a solicitor in the regulatory and healthcare team. He works with Mills & Reeve’s public and independent sector clients on regulatory and public law issues. His practice includes contentious and non-contentious matters and spans a number of industry sectors with a particular expertise in health and care.