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Medical manslaughter and corporate liability*

Published online by Cambridge University Press:  02 January 2018

Mary Childs
Mary Childs*
Affiliation:
University of Manchester
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Abstract

Recent years have seen a rise in the number of manslaughter prosecutions following deaths caused by improper medical treatment. Such prosecutions of individual doctors are problematic because, in many cases, a complex pattern of failures has contributed to the death. One alternative approach would be that of pursuing corporate manslaughter prosecutions against hospital trusts, but current law makes such prosecutions difficult. The Law Commission's proposed offence of corporate killing could, if adopted, form the basis of prosecutions following some hospital deaths. The article considers arguments for and against the use of criminal law in response to deaths caused by medical negligence.

Type
Research Article
Information
Legal Studies , Volume 19 , Issue 3 , September 1999 , pp. 316 - 338
Copyright
Copyright © Society of Legal Scholars 1999

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Footnotes

*

I am grateful to the following for helpful comments: Jean McHale, Margot Brazier, Martin Wasik, Martin Loughlin and the Legal Studies readers.

References

1. The CPS may be more willing than the police to bring proceedings against members of the medical profession: A McCall Smith ‘Criminal Negligence and the Incompetent Doctor’ (1993) 1 Med LR 336-349 at 336. In 1992 two doctors were convicted of manslaughter after giving fatal quantities of drugs to a patient in police custody: D Braham ‘Death of a Remand Prisoner’ (1992) 340 Lancet 1462. In 1994 a GP acquitted of manslaughter was convicted of attempting to pervert the course of justice by altering computerised records of a patient who died: D Braham ‘Medical Manslaughter’, (1994) 344 Lancet 256. In 1997 a coroner referred to the CPS the case of an infant who died during delivery: ‘Doctor may be charged over delivery death’ Guardian, 21 November 1997, p 5. In 1998 a dental anaesthetist was charged with manslaughter after a patient died: ‘By the skin of their teeth’ Guardian, 23 June 1998, p 16. Of course, the possibility of a prosecution for medical manslaughter is not new: see eg R v Williamson (1807) 3 C&R 635.

2. Litigation costs to the NHS in 1996/97 rose by 17% from the previous year: Department of Health Press Release 98/162: http://www.coi.gov.uWcoi/depts/GDH/coi0906e.ok.

3. ‘Doctors face trial over boy's death’ Guardian, 21 April 1998, p 3.

4. Above n 3.

5. ‘Fatal error by hospital has claimed lives before’ Guardian, 6 January 1999, p 1.

6. Celia Wells has argued that this reflects changes in public perceptions of disaster: ‘Cry in the Dark: Corporate Manslaughter and Social Meaning’ in I Loveland (ed) Frontiers of Criminality (London: Sweet & Maxwell, 1995); ‘Corporate Manslaughter: a Cultural and Legal Form’ (1995) 6 Criminal Law Forum 45.

7. C Clarkson ‘Kicking Corporate Bodies and Damning Their Souls’ (1996) 59 MLR 557; C Wells ‘Corporations: Culture, Risk and Criminal Liability’ (1993) Crim LR 557; A McColgan ‘The Law Commission Consultation Document on Involuntary Manslaughter - Heralding Corporate Liability?’ (1994) Crim LR 547; J Gobert ‘Corporate Criminality: New Crimes for the Times’ (1994) Crim LR 722; G Sullivan ‘The Attribution of Culpability to Limited Companies’ (1996) CLJ 5 15; C Clarkson ‘Corporate Culpability’ (1998) Web JCLI.

8. McColgan, above n 7; C Wells ‘The Law Commission Report on Involuntary Manslaughter: The Corporate Manslaughter Proposals: Pragmatism, Paradox and Peninsularity’ (1996) Crim LR 545.

9. (1995) 1 AC 171.

10. (1993) 4 All ER 935, CA.

11. (1993) 4 All ER 935 at 949.

12. Although in the 1980 s and 1990s several negligent manslaughter convictions were entered in New Zealand under legislation which made simple medical negligence culpable: P D G Skegg ‘Criminal Prosecutions of Negligent Health Professionals: the New Zealand Experience’ (1998) 6 Med LR 220–246.

13. In the Court of Appeal, Adomako was considered together with the appeals of Dr Prentice and Dr Sullman: (1993) 4 All ER 935 at 949–954.

14. (1994) 3 All ER 79.

15. A Wisconsin court found criminal culpability where a nursing home operator failed to provide enough staff to provide adequate nursing care: State v Serebin 119 Wis 2d 837, 350 NW 2d 65 (1984). See J Pray ‘Note: State v Serebin: Causation and the Criminal Liability of Nursing Home Administrators’ (1986) Wisc L Rev 339. It may be argued, of course, that the entire NHS system uses overworked staff and it is undesirable to single out any one trust as culpable in this regard.

16. Para 5.43.

17. Para 4.26.

18. McCall Smith, above n 1.

19. See G Virgo ‘Reconstructing Manslaughter on Defective Foundations’ (1995) CW 14. Other discussions include S Gardner ‘Manslaughter by Gross Negligence’ (1995) 111 LQR 22; S Sharpe ‘Grossly Negligent Manslaughter after Adomako’ (1994) 158 JP 725. For a defence of negligence-based criminal liability: H Keating ‘The Law Commission Report on Involuntary Manslaughter: The Restoration of a Serious Crime’ (1996) Crim LR 535.

20. Above n 1 at pp 337–338.

21. Above n 1 at p 338.

22. Above n 1 at p 349.

23. Above n 3.

24. ‘Overworked Junior Doctor Cleared of Penicillin Killing’ Guardian 20 May 1995, p 5.

25. National Audit Office Performance of the NHS cervical screening programme in England (London: HMSO, 1998).

26. ‘Threat of court for bad NHS managers’ Independent, 14 April 1998.

27. G Kolata ‘Medical Laboratory Faces Charges in Cancer Deaths’ New York Times 13 April 1995, p A16; G J Annas ‘Medicine, death, and the criminal law’ (1995) 333 New England J Medicine 527.

28. ‘Six disasters; 368 people dead; no successful prosecutions. Now the Government acts’ Independent, 2 October 1997.

29. National Health Service and Community Care Act 1990, s 60 and Sch 2, para 18.

30. National Health Service and Community Care Act 1990, s 5(5).

31. Income and Corporation Taxes Act 1988, s 519A, Capital Gains Tax Act 1979, s 149B (3), and other amendments introduced by s 61 of the National Health Service and Community Care Act 1990.

32. The new offence was intended to apply to all corporations however incorporated and regardless of whether they were run with a view to profit. However, the Law Commission regarded trusts as unincorporated. The stated reason for not including ‘unincorporated bodies’ in the class of potential defendants was that they varied greatly in kind and differentiation would require further consultation, Paras 8.53 and 8.54.

33. Para 8.51.

34. The draft Bill simply speaks of ‘corporations’, and makes no specific reference to hospital trusts.

35. Tesco Supermarkets Ltd v Nattrass (1971) 2 All ER 127.

36. J C Coffee Jr ‘“No Soul to Damn: No Body to Kick”: An Unscandalized Inquiry Into the Problem of Corporate Punishment’ (1981) 79 Michigan LR 387–459 at 397.

37. R v Kite and others (1994) Independent, 9 December.

38. Above n 38, p 401.

39. J Gobert ‘Corporate Criminality: four models of fault’ (1994) 14 LS 393 at 402–403.

40. Hidden Report Investigation into the Clapham Junction Railway Accident (London: HMSO 1989).

41. (1995) 2 AC 500.

42. (1995) 2 AC 500 at 507.

43. United States v Bank of New England 821 F 2d 844, CA (First Circuit) 1987.

44. (1989) 88 Cr App R 10.

45. (1991) Crim LR 695.

46. P French Collective and Corporate Responsibility (Guildford: Columbia University Press, 1984); B Fisse and O Braithwaite ‘The Allocation of Responsibility for Corporate Crime: Individualism, Collectivism and Accountability’ (1988) 11 Sydney LR 468; Gobert, above n 39.

47. S Field and N Jorg ‘Corporate Liability and Manslaughter: should we be going Dutch?’ (1991) Crim LR 156.

48. Hospital Case, Rechtbank Leeuwarden, 23 December 1987, partially reported at NJ 1988, 981. The account in this article is based upon that given by Field and Jorg.

49. Above n 47 at p 165.

50. Law Com no 237 (1996).

51. The wording is: ‘4 (1) A corporation is guilty of corporate killing if-(a) management failure by the corporation is the cause or one of the causes of a person's death; and (b) that failure constitutes conduct falling far below what can reasonably be expected of the corporation in the circumstances. (2) For the purposes of subsection (1) above (a) there is a management failure by a corporation if the way in which its activities are managed or organised fails to ensure the health and safety of persons employed in or affected by those activities; and (b) such a failure may be regarded as a cause of a person's death notwithstanding that the immediate cause is the act or omission of an individual.’

52. A McCall Smith, above n 1.

53. A Ashworth ‘Criminal Liability in a Medical Context: the Treatment of Good Intentions’ in A P Simester and A T H Smith (eds) Harm and Culpability (Oxford: Clarendon Press, 1996).

54. C Sunstein ‘On the Expressive Function of Law’ (1996) 144 U Pa LR 2021; J Feinberg ‘The Expressive Function of Punishment’ in Doing and Deserving (Princeton: Princeton University Press, 1970).

55. S E Marshall and R A Duff ‘Criminalization and Sharing Wrongs’ (1998) 11 Can J Law & Jurisprudence 7–22.

56. This point is made by C E Crano in ‘Political Philosophy, Morality and the Law’ (1986) 95 Yale LJ 1066–1086.

57. Civil Evidence Act 1968, s 11.

58. Coffee, above n 36, p 442.

59. V S Khanna ‘Corporate Criminal Liability: What Purpose Does it Serve?’ 109 Harv LR 1477–1534 (1996).

60. Above n 59.

61. Above n 59. This is the standard used in some US statutes as requisite to an award of punitive damages. It has been suggested that, if the goal of a prosecution is to force cost internalisation rather than to impose incarceration of an individual, the civil standard of proof and civil procedure should be used: D Fischel and A O Sykes ‘Corporate Crime’ (1996) 25 JLS 319–349 at 332.

62. Council of Europe Liability of Enterprises for Offences Recommendation no R (88) 18 (1990).

63. S Gifford ‘Towards a Model of Health and Safety Management’ (1997) Health Care Risk Report 22–24.

64. Above n 63. In the year 1996-1997, 152 notices were issued to hospitals (private and NHS), 110 to nursing homes, 13 to ambulance trusts, and two to dentists.

65. G Slapper ‘Corporate Manslaughter: an Examination of the Determinants of Prosecutorial Policy’ (1993) Social and Legal Studies 423–443.

66. C Clarkson ‘Kicking Corporate Bodies and Damning Their Souls’ (1996) 59 MLR 557–572.

67. The protocol is a joint initiative of the Crown Prosecution Service, the Health and Safety Executive, and the Association of Chief Police Officers. Work-related deaths- A protocol for liaison MISC 114, (Sudbury: HSE Books, 1998): http://www.open.gov.uk/hse/press/e98087.htm.

68. G Williams ‘Convictions and Fair Labelling’ (1983) CLJ 85.

69. C Wells Corporations and Criminal Responsibility (Oxford: Oxford University Press. 1993) ch 3.

70. Above n 69, p 43.

71. Gifford, above n 63.

72. A fine is the most common penalty for breaches of health and safety legislation, although other penalties are available, including imprisonment and disqualification from serving as a company director.

73. This has been given as the reason why corporations cannot be convicted of murder, because the only possible sentence is one of life imprisonment.

74. For accounts of corporate ‘absorption’ of fines, see D Bergman ‘Corporate Sanctions and Corporate Probation’ (1992) NLJ 1312, and G Slapper, above n 65.

75. Coffee, above n 36, p 407.

76. Coffee, above n 36, p 407.

77. A von Hirsch and M Wasik ‘Civil Disqualifications Attending Conviction: a Suggested Conceptual Framework’ (1997) 56 CW 599–626.

78. B Fisse ‘The Use of Publicity as a Criminal Sanction Against Business Corporations’ (1971) 8 Melbourne Univ LR 107.

79. Coffee, above n 36; Khanna, above n 59.

80. As Coffee says (above n 36 p 433): ‘In general, it is difficult to identify culpable individuals with sufficient assurance to convict them (particularly in the face of judicial and jury empathy for middle-class defendants). Thus, a publicity sanction which identifies the responsible individuals after the corporate entity is convicted may in many instances be the only available way to censure the culpable manager.’

81. J Gobert ‘Controlling Corporate Criminality: Penal Sanctions and Beyond’ (1998) 2 Web JCLI.

82. Criminal Justice Act 1988, ss 104–115; Power of Criminal Courts Act 1973.

83. USSG s 8B 1.1.

84. USSG s 8D 1.4(b)4.

85. The draft Bill states that the order might be proposed by the HSE or any other body or individual designated by the Secretary of State.

86. (1993) 1 WLR 183 at 187.

87. A M Brandt ‘Racism and Research: the Tuskegee Syphilis Study’ (1978) 8 Hastings Center Report 21–29.

88. D Bergman, above n 74.

89. J Gobert, above n 81; B Fisse ‘Community Service as a Sanction Against Corporations’ (1981) Wise LR 970.

90. J L McMullan Beyond the Limits of the Law: Corporate Crime and Law and Order (Halifax NS: Fernwood Publishing, 1992) p 135.

91. This is not to suggest that such inquiries are without any such constraints, simply that they may be more accommodating and less adversarial than the criminal process. There are issues of standing and procedure to be addressed with respect to public inquiries, but those matters, are beyond the scope of this discussion.

92. The Hon Sir Barry Sheen ‘The Herald of Free Enterprise -Corporate Manslaughter?’ (1995) 64 Medico-Legal Journal 55–69, at p 63.

93. Law Commission Report no 237 Legislating the Criminal Code: Involuntary Manslaughter (1995) para 7.22. Presumably, though, the pressure exerted by a corporate potential defendant employing many of the witnesses might be greater than the pressure exerted by an individual.

94. Above n 93, p 62.

95. Above n 93, p 66.

96. Report of the Disasters and Inquests Working Group (London: Home Office, 1997). The preferred option was that of adjourning the inquest where a public inquiries is established, limiting the circumstances in which the inquest could be resumed, and amending the rules of procedure and evidence to reduce areas of duplication with the inquiry.