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Private prosecutions…
is it only a matter of time?

High profile private prosecutions have raised questions about whether it would be possible for cases to be brought against health and social care providers. Simon Lindsay and Ruth Atkinson-Wilks share their thoughts on the likelihood, what offenses could be brought and what providers should do if it happens to them.

The thought of being sued strikes fear into the heart of many providers. But what about the possibility of being criminally prosecuted? Traditionally, the decision on whether to pursue criminal proceedings has been left to the State, which is required to adhere to strict guidelines on when a prosecution should or should not be undertaken. In particular, there must be sufficient evidence and any prosecution must be in the public interest. The number of investigations by the police, and subsequent prosecutions by the Crown Prosecution Service (CPS) (or in some cases the Health and Safety Executive or Care Quality Commission) for offences such as corporate manslaughter, gross negligence manslaughter, wilful neglect and offences under the health and safety legislation has notably increased, with ever-increasing public scrutiny.

Not only this, but in recent years the use of private prosecutions has seen a resurgence. In 2014, there was the successful private conviction of businessman Ketan Somai for nine counts of fraud after swindling investors out of £13.5m. In August 2015, the fatal accident inquiry into the tragic 2014 Glasgow bin lorry crash was adjourned to allow the parties to consider a private prosecution. We have also seen private prosecutions in relation to the Hillsborough football disaster and the Stephen Lawrence murder. The growing trend and expanding remit of private prosecutions means that it may only be a matter of time before someone attempts a private prosecution of an offence by a health or social care professional.

Health and social care context

What are the offences in the health and social care context that could be subject to a private criminal prosecution, (ie a prosecution that is not brought by or on behalf of the CPS but by an individual or body, acting in a private capacity)? They fall into two categories – those that must be brought against the organisation (ie a care provider or NHS trust) and those that can be brought against individuals.

The three most prominent offences are:

(a)        Corporate manslaughter

An organisation such as a care provider or health trust will be guilty of corporate manslaughter ‘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’. A breach of a duty of care will be considered ‘gross’ if the alleged conduct falls far below what can reasonably be expected of the organisation in the circumstances. Punishment can include a significant fine, a remedial order (requiring the organisation to take steps to remedy the management failure) and a publicity order (to name and shame).

The prospect of a private prosecution for corporate manslaughter is perhaps less likely than the other offences discussed below as permission from the Director of Public Prosecutions (DPP) is required before a private prosecution of corporate manslaughter can begin.

(b)        Gross negligence manslaughter

Gross negligence manslaughter is a common law offence, where death is as a result of a grossly negligent act. It has a four-stage test:

  1. The defendant owed the deceased a duty of care.
  2. The defendant breached the duty of care.
  3. That breach caused (or significantly contributed to) the death.
  4. The breach was grossly negligent.

Gross negligence manslaughter can be brought against individuals. The defendant’s act or omission (which amounts to a breach of the duty of care) has to be so bad that, taking into account all of the circumstances, it should amount to a criminal offence. It’s what is sometimes described as ‘reprehensible’ behaviour.

We are not, at present, aware of any private prosecutions for gross negligence manslaughter in England and Wales, however such a private prosecution would be possible as the private prosecution of gross negligence manslaughter does not require the consent of the DPP. The maximum penalty is life imprisonment.

A successful prosecutor would be able to recover costs from central funds for this type of prosecution.

(c)        Wilful neglect

The offence of ill-treatment or wilful neglect can be brought against both individuals and organisations (eg care providers) in health and social care.

An individual commits the offence if, as a care worker, they ill-treat or wilfully neglect a person in their care. An organisation commits the offence if (i) an individual commits the offence, (ii) the management or organisation employing that individual, or the care provider’s activities, amount to a gross breach of a relevant duty of care owed by the care provider to the person who is ill-treated or neglected; and (iii) in the absence of the breach, the ill-treatment or wilful neglect would not have occurred or would have been less likely to occur.

The offence for individuals can result in a prison term of up to five years or a fine or both. The penalties for organisations may include a fine, a remedial order and a publicity order.

Depending upon the sentence, the private prosecutor may be able to recover costs from central funds. In some circumstances, the defendant may be liable for the costs of the prosecution, subject to means.

It is possible for a private prosecution for wilful neglect to be commenced without first obtaining consent from the DPP.

Potential impact of a private prosecution

A growth in private prosecutions in health and social care could have a huge impact on resources for organisations. It may also impact upon the insurance arena for organisations, who – going forwards – may need to have greater policy coverage.

As the private prosecutor will be relying on private investigators or unqualified individuals, as opposed to the police, to collate evidence and put together their cases, they are likely to require extra assistance from the defendant organisation.

Whereas the police, and other organisations, such as Health and Safety Executive and Care Quality Commission, have statutory powers to require disclosure and the production of items/documentation from a defendant, private prosecutors and their investigators will not have these powers. Whilst this can be beneficial in some respects, it can also mean that the defendant organisation has to give greater consideration and deliberation as to whether it is obliged to provide disclosure in specific circumstances.

Ultimately, this can cause greater resource to be required than simply complying with a warrant or court order.

In the public eye

It should also be remembered that private prosecutions are not only used to seek justice. They are also a useful campaigning tool for raising awareness of perceived injustice and keeping an issue in the public eye.

This was demonstrated by the unsuccessful, yet high-profile private prosecutions brought by the families of Hillsborough victims against police officers involved in the disaster, and those initiated by the family of Stephen Lawrence against the suspects of his murder during
the 1990s.

Such press interest is likely to be a significant factor in the workload and pressures on organisations as they deal with private prosecutions.

Private prosecutions are also likely to lead to interest from other regulators and may trigger further investigations. They may also lead the police or CPS to reconsider opening previously closed or discontinued investigations or prosecutions.

A growth in private prosecutions in health and social care could have a huge impact on resources for organisations. It may also impact upon the insurance arena.

What can providers do?

It is imperative that any actual or potential private prosecutions are addressed rapidly and proactively by defendant organisations.

Early intervention and action could prevent an escalation – or at least put the organisation in the best possible position to successfully defend a prosecution.

If faced with the prospect of a private prosecution, an organisation would be well-advised to seek legal advice immediately. This should be done without delay, as time is of the essence, to protect staff members and minimise the impact with regards to publicity and the involvement of other regulatory bodies.

Furthermore, it may be possible to make a request to the DPP to take over and discontinue proceedings – something that a legal representative would be able to advise on.

Is it a matter of time?

This is only a brief overview of private prosecutions with a focus on how they might be utilised to prosecute health and social care offences.

Although the public interest element in health and social care offences provides a strong justification for most prosecutions being undertaken by the CPS (or at least taken over by the DPP), an under-resourced and over-burdened CPS means that the situation is ripe for cases being overlooked and picked up by private prosecutors instead.

It really does look like only a matter of time before we see our first high profile private prosecution in health and social care.

Simon Lindsay is a Partner at Bevan Brittan LLP. Email: simon.lindsay@bevanbrittan.com
Ruth Atkinson-Wilks is a Solicitor at Bevan Brittan LLP. Email: ruth.atkinson-wilks@bevanbrittan.com Twitter: @BevanBrittanLLP

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