A study conducted by the Caring Times showed that few providers are aware of the implications of the Corporate Manslaughter and Corporate Homicide Act 2007 (The Act).
According to a study conducted by insurance broker Smart & Cook’s specialist care home division Gold Direct, four out of five care home owners/managers did not know that the new Act had taken effect, and two out of five had no understanding of the Act itself. Only 8% were aware that unlimited fines can be imposed under the Act. Given the number of changes in legislation impacting upon Care Homes in recent months this is not surprising.
The Act creates a means of accountability for deaths caused by very serious management failings. For the first time, companies and organisations can be prosecuted by the Crown Prosecution Service and found guilty of corporate manslaughter as a result of serious management failures that amount to a gross breach of a duty of care.
Prior to the act coming into force, it was possible for a corporate entity, such as a company, to be prosecuted for a wide range of criminal offences, including the common law offence of gross negligence manslaughter. In order for the company to be guilty of the offence, it was also necessary for a senior individual who could be said to embody the company (also known as a 'controlling mind') to be guilty of the offence. The new law is wider, now a company can be convicted if it can be proven that there was a gross breach of duty of care by "senior management" instead of just one individual.
The Act creates a duty of care to a person who is living in secure accommodation in which he has been placed, or is a detained patient. Any care home with clients detained under the Mental Health Act 1983 will be caught by the Act. What is not so clear is whether the Act will apply to persons deprived of their liberty under the Mental Capacity Act 2007.
Companies prosecuted under the Act that have been successfully charged with manslaughter have received fines as high as £385,000. However, there is no limit to the amount a company can be fined. Remedial orders and publicity orders can also be made.
The Winterborne View case, and subsequent headlines regarding the treatment of service users in their new homes, coupled with the publication of the Department of Health’s “Transforming Care; A National Response to Winterbourne View Hospital” this week has put the question to what extent should senior management be held accountable for the acts of staff back on the news desks agenda.
Paul Burstow, a senior Liberal Democrat and former Care Minister has previously called for a new offence of ‘willful neglect’ if managers and owners of care homes fail to notice abuse of residents in their care by more junior staff, making companies corporately accountable as well as their staff.
A new crime of corporate willful neglect?
Arising from the cases of Castlebeck and the Winterbourne View, Mr Burstow believes that a new offence of corporate willful neglect could help by imposing serious financial penalties on companies who profit from the abuse of those they owe a duty of care towards and would apply to a much wider group than under the Act. Care Service Minister Norman Lamb has said that the Government will review the current gap in accountability commenting “we need to have a situation where people who run care organisations, public or private sector, or voluntary, know that they are accountable for the services they provide and there are consequences if they don’t” The Government is due to announce proposals in the spring.