In February 2016 Yousaf Khan,
the owner of Autumn Grange in Nottingham, was jailed for gross negligence
manslaughter over the death of Ivy Atkin which occurred in November 2012.
Ivy Atkin, who was 86 and had dementia, weighed just 25kg
(3st 13lbs).
An inspector told an inquest into her death there were
"widespread" problems at the home.
There was systematic neglectful care, discrimination and further abuse
taking place.
Linda Hirst, from the Care Quality Commission (CQC), said
Mrs Atkin was not the only resident being neglected. "The care of people, including Ivy
Atkin, who I witnessed directly, they were receiving very poor care," she
said.
Mr Khan was sentenced to 3
years and 2 months at Nottingham Crown Court and his firm Sherwood Rise Ltd was
fined £300,000 for Corporate Manslaughter.
This was the first case of its
kind in England.
But what is Corporate
Manslaughter? How does it affect our
families and loved ones? And what does
it mean for our Care Homes and Care Staff?
Corporate Manslaughter
The Corporate Manslaughter and
Corporate Homicide Act 2007 is a landmark in law. For the first time, companies and
organisations can be found guilty of corporate manslaughter as a result of
serious management failures resulting in a gross breach of a duty of care.
Prior to 6 April 2008, 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.
However, 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. This was known as the identification
principle.
On the 6 April 2008, the
Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA) came into force
throughout the UK. In England and Wales
and Northern Ireland, the new offence is called corporate manslaughter, and in
Scotland it is called corporate homicide.
What do companies and organisations need to do to comply?
Companies and organisations
that take their obligations under health and safety law seriously are not
likely to be in breach of the new provisions. Nonetheless, companies and organisations
should keep their health and safety management systems under review, in
particular, the way in which their activities are managed or organised by
senior management.
Will directors, board members or other individuals be prosecuted?
The offence is concerned with
corporate liability and does not apply to directors or other individuals who
have a senior role in the company or organisation. However, existing health and safety offences
and gross negligence manslaughter will continue to apply to individuals. Prosecutions
against individuals will continue to be taken where there is sufficient
evidence and it is in the public interest to do so.
What does it mean for Our Families and Loved Ones?
Unfortunately, if you have concerns over whether this
applies to you then you’ve already been faced with serious systematic failures,
neglect and abuse in care. This
legislation only covers deaths within care from 6 April 2008, deaths previous
to this date will still be covered by the previous law but very few ever made
it to court.
The Act, which came into force
on 6 April 2008, clarifies the criminal liabilities of companies including
large organisations where serious failures in the management of health and
safety result in a fatality.
The Ministry of Justice leads
on the Act and more information is available on its Corporate Manslaughter and
Corporate Homicide Act 2007 webpage.
What does it mean for Individual Workers?
HSE welcomes and supports the
Act. Although the new offence is not
part of health and safety law, it will introduce an important new element in
the corporate management of health and safety.
Prosecutions will be of the
corporate body and not individuals, but the liability of directors, board
members or other individuals under health and safety law or general criminal
law, will be unaffected.
And the corporate body itself
and individuals can still be prosecuted for separate health and safety
offences.
Essentially this means that
Care Staff, found in breach of Health & Safety and Safeguarding are now individually
liable and can be prosecuted.
Elements of the Offense
The following needs to be
proved:
- the defendant is a qualifying organisation;
- the organisation causes a person's death;
- there was a relevant duty of care owed by the organisation to the deceased;
- there was a gross breach of that duty;
- a substantial element of that breach was in the way those activities were managed or organised by senior management; and
- the defendant must not fall within one of the exemptions for prosecution under the Act.
Therefore, the reviewing
lawyer will have to consider how the fatal activity was managed, or organised,
throughout the organisation, including any systems and processes for managing
safety and how these were operated in practice.
A substantial part of the failure within the organisation must have
been at a senior management level
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