In clinical incidents leading to a patient’s death, the clinicians involved inevitably faces a criminal prosecution for gross negligence manslaughter if there is a breach in the duty of care, which is serious enough to constitute a crime1. Conventionally, the prosecution is brought against the clinicians individually. However, clinical incidents are often contributed by a series of errors from various aspects associated with the organisation, such as communication problems among clinical departments, hardware failure, tight working schedules of clinicians, and so forth2. In this context, apart from the individual conduct of clinicians, the potential legal liabilities of the organisation which employs the clinician should also be held accountable. In the English legal system, companies and organisations can be found guilty of corporate manslaughter due to serious management failures resulting in a gross breach of a duty of care, according to the Corporate Manslaughter and Corporate Homicide (CMCH) Act 20073. Nonetheless, attributing liability for manslaughter to an organisation is difficult in reality.
The CMCH Act 2007 clarifies that an organisation is guilty of an offence if the way in which its activities are managed or organised causes a person’s death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. Besides hospitals and healthcare organisations, this Act applies to any corporations, partnerships or trade unions that are employers, government departments, and police force. Essentially, the organisation will be guilty of this offence only if the activities are managed or organised by its senior management and management failure is a substantial element in the breach3.
The prosecutions under the CMCH Act 2007 will be of the corporate body and not individuals. However, the liability of directors, board members or other individuals under health and safety law or general criminal law will be unaffected. Hence, the corporate and individuals can still be prosecuted for separate health and safety offences. Upon conviction for corporate manslaughter, the guilty organisation will be liable on indictment to a fine3.
Since the introduction of the CMCH Act, prosecution against medical service providers under the Act has been rare. The first case of corporate manslaughter against the national health service (NHS) trust was R v Dr Errol Cornish and Maidstone and Tunbridge Wells Trust [2016]. On 9th October 2012, Mrs. Frances Cappuccini gave birth by Caesarean section to her second son at Pembury Hospital in Kent, a hospital under the Maidstone and Tunbridge Wells NHS Trust. Due to circumstances, Mrs. Cappuccini suffered a postpartum haemorrhage and died following a cardiac arrest despite having a lengthy but unsuccessful attempts at resuscitation. Dr. Nadeem Azeez was the anaesthetist responsible for Mrs Cappuccini’s anaesthetic care before, during and after the Examination Under Anaesthetic (EUA) with the assistance of Dr. Errol Cornish, a locum consultant. The fact stated that Dr. Azeez left the United Kingdom (UK) following the incident and had not returned4.
The prosecution alleged that Dr. Azeez and Dr. Cornish were responsible for Mrs. Cappuccini's death by failing to ensure that she remained ventilated after the operation. In addition, the NHS trust was said to be criminally liable for appointing doctors it knew or should have known that lacked the training, qualifications, and competence for their roles and for failing to ensure that Dr. Azeez was supervised by a consultant. While Dr. Azeez had left the UK, Dr. Cornish was charged with gross negligence manslaughter. In addition, the NHS Trust was charged with corporate manslaughter under the CMCH Act 20074.
In the hearing, the judge acknowledged that Dr. Cornish was summoned away from his patient in the adjacent operating theatre for advice and assistance and assisted Dr. Azeez for no more than 40 minutes. Notably, Dr. Cornish did not ignore the advice of others, and he almost immediately sought further help from the senior consultant. His actions were “as far from a gross negligence manslaughter case point of view as it is possible to be”. Thus, Dr. Cornish was acquitted. Remarkably, the judge upheld evidence against the Trust since the Trust had breached a duty of care. Nonetheless, there was no evidence that a jury could properly conclude that the breach was gross or that it had caused the death. Therefore, the NHS Trust was found not guilty4.
The establishment of the CMCH Act was a breakthrough that made the senior managers of the organisation, who play significant roles in decision making on how the organisation’s activities are to be managed or organised, to be accountable for the gross negligence that caused loss of life. Nonetheless, the CMCH Act emphasises too much on the liabilities of senior management, resulting in difficulty in prosecution.
The main question remains who made decisions for the organisation. Practically, it is not easy to show the relevant gross negligence causing death is committed by persons as the controlling mind due to fragmented responsibilities, especially in organisations with larger sizes or complex structures. For instance, whether a division manager is senior enough to impact the organisation’s operation is debatable.
In contrast, it may be easy to identify the controlling mind in smaller organisations. Notably, most previous convictions under the CMCH Act were in smaller companies. For instance, in R v Mobile Sweepers (Reading) Ltd [2014] (unpublished), Mobile Sweepers (Reading) Ltd was found guilty of corporate manslaughter for the employee’s death due to crush injuries when working underneath a road-sweeping truck. The company was fined £8,000 for the offence. Moreover, the sole director was convicted of gross negligence manslaughter, was ordered to pay £191,000 and was banned from holding the position of a director for 5 years5. Therefore, it is unfair for organisations with smaller sizes in which decision makers are clearly identified and could be found guilty of corporate manslaughter, but not large organisations.
Moving the focus back to Hong Kong, there is currently no legislation setting out the specific offence of corporate manslaughter. Nonetheless, corporations can be liable for criminal offences because they are included in the definition of "person" under the Interpretation and General Clauses Ordinance 6 and can be liable for manslaughter under the common law and punishable under the Offences Against the Person Ordinance7.
Practically, instead of charging the corporation, prosecutions of manslaughter are often brought against the owners, directors and/or managers of the organisation8. For instance, in HKSAR v Chow Heung-Wing, Stephen and 2 others ("DR Group") [2015], which caused the death of a patient who received a transfusion of cytokine-induced killer (CIK) cells for their alleged anti-ageing effects at a beauty clinic run by the DR Group. The prosecution only laid charges of manslaughter on Dr. Chow Heung-Wing, the owner of the DR Group, and two employees, but not the company9.
In summary, although there are criticisms towards the CMCH Act 2007, the Act is a milestone in the English legal system emphasising the organisational liability through the management failure by the directors and senior managers. In the healthcare settings, shifting medicolegal attention to the medical systems rather than individuals may facilitate a no-blame culture. Essentially, the senior medical and managerial staff in the healthcare system is expected to be aware of the legislation and give a higher priority to complying with health and safety laws in order to avoid the indictments of corporate manslaughter and gross negligence manslaughter. This in turns would benefit frontline healthcare professionals and patients.
References:
1. Hubbeling D. J R Soc Med 2010; 103: 216. 2. Samanta and Samanta. J Med Ethics 2019; 45: 10–4. 3. Corporate Manslaughter and Corporate Homicide Act 2007. 4. R v Dr Errol Cornish and Maidstone & Tunbridge Wells Trust [2015] EWHC 2967 (QB). 5. Mobile Sweepers (Reading) boss fined over worker death - BBC News. 6. Cap. 1 Interpretation and General Clauses Ordinance. Laws of Hong Kong. 7. Cap. 212 Offences against the Person Ordinance. Laws of Hong Kong. 8. Business Crime and Investigations in Hong Kong: Overview | Practical Law. 9. HKSAR v Chow Heung-Wing, Stephen and 2 others [HCCC] 437/2015.
