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Health Legal Update: Personal liability for directors and managers in the health and social care sector

    • Health and life sciences - Healthcare e-briefings

    07-07-2013

    Directors and senior managers in all organisations should know the importance of taking health and safety seriously, both for themselves and for their organisation. However, how many senior officials know and take seriously the risks of personal liability under health and safety law? In times of dramatic public sector cut backs, the Health and Safety Executive (HSE) is finding the prosecution of individuals a much easier, quicker, and cheaper method of punishing health and safety crimes than prosecuting organisations (or even full-blown police-led corporate manslaughter prosecutions in the event of a fatality). Furthermore, the risks of prosecution for directors and senior managers in the health and social care sector are arguably greater than the risks for their counterparts in other industry sectors. This article will also explore the risks of private companies in this sector also being prosecuted in the near future.

    Safety and Health Practitioner (2012) described how the number of senior managers individually prosecuted by the HSE had ‘rocketed by more than 400% in the last 5 years’. This confirmed the suspicions of many health and safety practitioners who have seen a growing trend towards targeting individuals, rather than companies, by the HSE.

    In general, HSE enforcement action against companies is decreasing as HSE resources are slashed by public sector cuts. However, it is clear that directors and senior managers must be diligent in relation to health and safety matters as the HSE seeks to single out those at the top of organisations. Section 37 of the Health and Safety at Work etc. Act 1974 gives the HSE the power to prosecute directors and senior managers for health and safety incidents that may have been committed due to their consent, connivance, or neglect. Directors and senior managers can be fined unlimited amounts and (since January 2009) the Courts have also been able to imprison individuals under this provision.

    Recent cases against individual nursing and medical staff at nursing and care homes have brought the spotlight down on the healthcare sector again. Private Companies, directors and senior managers involved or working in the care industry will undoubtedly be increasingly targeted for investigation and prosecution in future cases.

    Furthermore, the introduction of HSE Fees for Intervention[1] in April 2012 by which they could recover their investigation costs every time they issue enforcement action (even as minor as letters of advice) after detecting ‘material’ breaches in health and safety law may have the effect of producing more HSE scrutiny of all industries, including the healthcare sector. The report arising from the Mid Staffordshire Public Inquiry may result in more scrutiny and investigation of individuals in management positions in the health and social care sector in the aftermath of health and safety incidents. In the absence of any precedent for a corporate manslaughter investigation against the organisations they work for, section 37 of the Health and Safety at Work etc Act 1974 may be used by investigators and prosecutors. The recent controversy over the failings of the Care Quality Commission to properly fulfil their role as a healthcare regulator, may ultimately lead to a greater role for the HSE, and greater scrutiny of directors, senior managers, and the private companies responsible for healthcare in this country.[2]

    Developments in Accountability for the Nursing Care Sector

    Last year a new law was introduced in parliament that would make directors and private companies criminally liable for abuses that take place at care and nursing homes, which they fund or operate. This followed a statement by Care Minister Norman Lamb in which he declared his intention to make private companies (and by implication their directors) accountable when the care and nursing homes they fund and/or operate fail to provide the required standards of care [3]. It is unclear how these plans will link into Lamb’s other concerns over the lack of regulation currently available to prevent standards of care dropping in health-care facilities due to the their financial backers falling into economic difficulties.

    The proposed criminalisation of directors of private companies for poor standards in care and nursing homes could affect the existing legal duties of directors. This may lead to imprisonment for senior executives or fines to be paid by the companies they lead. This will be a significant change in the law, which has traditionally focused almost exclusively on the actions of individual medical and nursing staff rather than looking more widely at the activities of senior management and the private companies who fund the homes and who are often responsible for the operation of care homes and their Care Quality Commission registration.

    Practical advice for the Nursing and Care Home Sector

    The advance in calls for more accountability in the law for directors and private companies responsible for care homes is a response to recent care home scandals. Winterbourne View saw the directors of the company who owned the nursing facility not facing any criminal charges despite six members of the nursing staff being imprisoned for their part in the scandal. The proposed changes may also be a response to the fact that the threshold for prosecution and liability under the Corporate Manslaughter Act has so far been completely untouchable for police investigating deaths occurring in the health, nursing and social care sector. Indeed, the case for prosecuting individuals, rather than companies or organisations, is even more compelling in this sector where there have been no prosecutions for corporate manslaughter compared to other industry sectors[4].

    There have been no formal changes to HSE guidance on prosecuting individuals that has prompted its recent targeting of individuals. Guidance from the Institute of Directors and the HSE Leading Health and Safety at Work is still in place and must be read by all directors and senior managers to ensure that they set the tone for health and safety compliance in their organisations. However, the most important thing that all directors and senior managers can do is to try and ensure that health and safety is taken seriously at all levels, and that health and safety issues and risks can be reported to the highest level of the organisation if necessary.

    Conclusion

    Directors and senior managers in nursing and residential homes need to know what they are responsible for, what they ought to be responsible for, and what they know and ought to know about health and safety within their organisation. Ultimately, if they do not know the detail (or cannot know the detail because of the size of the organisation), they must satisfy themselves that people with authority know the detail and have the power to change or challenge policies, making financial investments if required.

    Directors and senior managers in nursing homes and involved in residential care need to be aware that the HSE wants to expose and make an example of more individuals. After an accident has occurred it is too late to think about the legal, moral, and contractual duties under health and safety law owed by individuals and companies to colleagues and employees. All individuals who have the power to instigate changes in health and safety at their organisations need to envisage the worst case scenarios and seek advice if they are unsure of what their health and safety responsibilities are, and think about what they would do, and where they would stand in the event of an accident.

    Private companies as well as their directors and senior managers involved in the healthcare sector will now be looked at with more scrutiny following abuse allegations or health and safety incidents. Whether this is done by the HSE, Police, or CQC, the public appetite and the government will is there to prosecute organisations and senior managers under health and safety law, the Corporate Manslaughter Act, or even new legislation. Private companies and those at the top of these organisations need to take action now, and invest time and money into considering these issues before an incident happens, otherwise their reputation, their finances, and potentially their entire business could be wrecked by scandal, court appearances, negative media publicity, and legal costs.



    [1] Health and Safety (Fees) Regulations 2012

    [2] See, for example - http://www.bbc.co.uk/news/health-23027438

    [3] Hansard 10 December 2012, see also http://www.independent.co.uk/news/uk/home-news/dont-just-blame-staff--companies-must-be-accountable-for-care-home-failings-8307177.html

    [4] To date there have been three successful corporate manslaughter prosecutions, none of them involved healthcare organisations. (For more detail please see http://www.healthandsafetyatwork.com/hsw/corporate-manslaughter/wheres-the-proof)

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