Oxford Magistrates Court – 20th November 2017
Southern Health picked up its third criminal conviction when it pleaded guilty a to a charge under Section 3 (1) of the Health and Safety at Work Etc. Act 1974¹. The first two convictions are summarised in footnote 1 here→
This Health and Safety Executive (“HSE”) prosecution related to the death of Teresa Colvin at Woodhaven Mental Health Hospital, Hampshire on 22 April 2012. Read more→
The Judge will sentence this prosecution and that relating to Connor Sparrowhawk’s death together to reflect the importance of ‘joining the dots’ between what happened in these cases and for the Judge to understand the extent of Southern Health’s (repeated) failings. Other considerations are consistent sentencing and costs. Read more→
Should Crown Immunity Apply to the NHS?
Crown immunity is a legal doctrine under which onerous legislation does not apply to the Crown.
“The Crown” is not limited to the monarch personally: it extends to all bodies and persons acting as servants or agents of the Crown, whether in its private or public capacity, including all elements of the Government, from Ministers downwards.
Therefore, Government departments, civil servants, members of the armed forces and other public bodies or persons are included within the scope of the immunity.
Crown Immunity and the NHS
“With medical negligence cases sharply up, citizens need to ask if they really want services drained to compensate a few claimants who can prove their case.”
Reintroduction of Crown Immunity would mean that patients and their families could not claim compensation for medical negligence and Trusts could not be prosecuted for criminal offences.
In fact, it was not until Government passed the National Health Service Community Care Act in 1990 that the NHS came under the full scrutiny of health and safety laws, which apply to private companies. Leading law firm Hodge Jones & Allen writes:
“Looking back at the history of how the NHS lost its immunity in the first place it remains shocking that the Guardian has allowed such a regressive opinion piece to have been published.” Read more of the argument here→
The House of Commons Public Accounts Committee in its report, ‘Health & Safety in NHS Acute Hospital Trusts in England‘ (2nd Report, 1997-98) discussed the effect of lifting Crown Immunity:
“21. The NHS Executive told our predecessors that since Crown Immunity was lifted in the late 1980s, the Health Service had had to live by the law.
“22. [Abbreviated] The NHS Executive told us that Crown Immunity had created a lack of discipline in some places. The NHS Executive put on record, however, that the Health and Safety Executive believed the health service had consistently improved its performance since the lifting of Crown Immunity.”
The NHS Executive also recognised that there had been some “sloppy practices” before Crown Immunity was lifted but recognised also that they still had a long way to go to achieve the sort of compliance with legislation and good practice expected.
It is evident that Southern Health’s slovenly practices continued until 2016. We hope the Mazars Review, three criminal convictions and a new Board of Directors, amongst other things, will transform the Trusts attitude towards the health and safety of customers.
Crown Immunity in the Military
Compare Southern Health’s three convictions with the death of three soldiers during a special forces training exercise in the Brecon Beacons in July 2013.
The HSE found a failure to plan, assess, and manage risks associated with climatic illness during the training. These failings resulted in the deaths of the three men and heat illness suffered by 10 others.
Referring to section 2(1)³ of the Health and Safety at Work Etc. Act 1974, the HSE confirmed that the MoD is not exempt from its responsibilities as an employer to reduce the risks to its employees as far as reasonably practicable. However, as a result of Crown Immunity, the HSE could not prosecute the MoD for the failings identified.
Instead, the HSE issued a Crown Censure to the MoD over the incident – the maximum sanction for a government body that HSE can bring. There is no financial penalty but once accepted is an official record of a failing to meet the standards set out in law.
So should Crown Immunity be reintroduced for the NHS?
Even without Crown Immunity, we know the difficulty of holding many NHS Trusts to account for their failings.
Do we want a two-tier legal system, in which:
- Those of us who rely on the NHS for healthcare are prevented from claiming compensation from an organisation that is immune for prosecution, however serious the consequences.
- On the other hand, those members of society who are fortunate enough to be able to afford private healthcare could bring claims – Crown Immunity cannot apply to a private company?
Additionally, what would the re-introduction of Crown Immunity do for standards of care in the NHS? Standards would inevitably fall dramatically. Crown Censures are no more than ‘yellow cards’ – without a ‘red card’ or financial penalty for repeated offences.
As demonstrated by the Virginia Mason Medical Centre, opportunities for improvement in care quality and efficiency in the NHS are legion. Patients, families and even the CQC and HSE have few ways of putting pressure on NHS Trusts to improve. Litigation and prosecution are two ways and they should never be removed.
¹ Section 3(1): “It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety.”
² Polly Toynbee –
“High priestess of our paranoid, mollycoddled, risk-averse, air-bagged, booster-seated culture of political correctness and ‘elf ‘n’ safety fascism” [Boris Johnson].”
Full profiles – Welcome to Pollyland ‘Daily Telegraph‘ [26 November 2006]
“An opinionated journalist...” – ‘BBC Magazine‘ [24 November 2006]
³ Section 2(1): “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.”