Eventually the question will be asked more often about Corporate Manslaughter. I’ve raised it previously, about whether this legislation could have any impact upon death in custody investigations where the arrangements in a given area were deficient when compared to the standards expected.
We probably need to ask this again and more openly bearing in mind various inquiries ongoing into deaths in custody around the country and in light of the persistent difficulties that some areas have in delivering against known requirements. This is difficult stuff, but it is on the statute book for a reason and it should influence our thinking on public service provision in these most tragic and difficult of cases.
For those who aren’t familiar with the offence: section 1 of the Corporate Manslaughter and Corporate Homicide Act 2007 introduces an offence, which requires the authority of the Director of Public Prosecutions to commence proceedings and which applies to police forces and NHS organisations —
“An organisation to which this section applies is guilty of an offence if the way in which its activities are managed or organised —
(a) causes a person’s death, and
(b) amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.”
The offence is qualified in section 1(3) – “An organisation is guilty of an offence under this section only if the way in which its activities are managed or organised by its senior management is a substantial element in the breach referred to in subsection (1).”
Sections 2 to 7 go on to further qualify and clarify the wording very carefully as to how application of this particular offence is determined but section 2(7) does show that a person detained under the Mental Health Act 1983 is within the scope of the offence. Being owed a duty of care by the police and the NHS, the offence can apply to anyone who is “a detained patient” and this wording is further qualified – those who are in lawful custody by virtue of s137 Mental Health Act 1983 are specifically listed as being “a detained patient”, so it includes anyone who is detained subject to removal to a place of safety, under section 135(1) or 136. “Detained patient” for the purposes of the Corporate Manslaughter Act does not just mean an “inpatient” for the purposes of the Mental Health Act, like a s2 or s patient. It has a wider definition.
It also must be noted that there are certain exemptions to the application of this offence – when police forces are dealing with “serious disorder” or undertaking operations where “they come under attack of face violent resistance”, there is some provision in section 5 of the Act to exemption from liability. We do not yet fully understand what this may mean for the detention of resistant patients under the Mental Health Act, because there is no case law on the matter, the offence being relatively new and so far, unused in that context.
Had it been used, we may have seen some section 9 “remedial orders” in operation: courts who convict organisation’s senior executives can issue an order to demand systemic changes to the organisational problems which gave rise to the tragic event.
And of course, being that it is necessary to prove the parts of this offence to a criminal standard of proof, it would be necessary to show that any defective arrangements when a duty of care were owed, were actually the cause of someone’s death. Not sufficient that someone died and that arrangements were defective: it must be as a result of the action or inaction of senior people, which is a necessarily high bar to clear.
We know from various statutory and clinical guidelines about the importance of certain things happening in the aftermath of a detention by the police under mental health law. The Code of Practice talks about use of the ambulance service to convey; the Royal College of Psychiatrists publish nationally agreed standards on section 136; NICE publish guidelines on issues like acutely disturbed behaviour and self-harm. We also know from European case-law that certain things amount to inhumane and degrading treatment and we know from domestic law about basic duties of care owed by the state to those who are detained and the law of negligence.
So what if we knew very fully that in one part of the United Kingdom there were local arrangements for s136 MHA (or s297 in Scotland; a130 in Northern Ireland) which fell way, way short of the required standard? Perhaps there were no health-based places of safety at all – or it may be they operated exclusion criteria that pushed the most at risk patients towards police custody; it may be that A&E kept insisting they could not act as a place of safety? Perhaps the local police force, despite knowing that this was not satisfactory because the lack of provision meant it was directing its officers to use custody as a first and only resort because of inertia or active resistance by NHS partners, despite what paragraph 10.22 to the MHA Code of Practice says.
And what if we then had the hypothetical case where it could be argued, as worded in section 1 of the Act, that this “caused the death of a person”? What if we knew that senior managers in both health and policing knew that their arrangements failed to meet those required standards? What if, as a consequence, people were being detained in police custody despite the fact that if you spoke to the custody officers and asked them hand on heart to say whether or not they felt that the person in their care was getting “appropriate clinical attention” (para 9.5 and Annex H to Code C of the Police and Criminal Evidence Act 1984) they would say “no”.
KEEPING OUR HOUSE IN ORDER
This is why I have said to senior officers in the past: you need to be certain, irrespective of your health service, that YOUR organisation’s ability to discharge its relevant duty of care is beyond question. You need to be able to show this irrespective of whether or not your NHS partners deliver health-based places of safety to relevant standards and whether or your ambulance / A&E colleagues see a role for themselves in those pathways, when we know beyond all doubt in both law and medicine that they do, from time to time.
We know for a fact that police custody is wrong – sometimes legally, sometimes medically. So acquiescing to a view that it should be used in circumstances which breaches statutory and relevant clinical guidelines, which go against authoritative medical and legal opinion and which has led to disaster in the past is wrong, both medically and legally. So we should not do it without resistance, even if this causes some disquiet.
As I have stated previously – if the ambulance service don’t come when we call them; if A&E or an NHS PoS turn officers and vulnerable people away or apply ad hominem techniques towards patients: that’s for them to justify. It’s not for individual officers or individual forces to absorb that liability and risk without having tried our best to agitate for vulnerable people in our care. Remember, we have a positive obligation to protect people’s Convention Rights: to life and to dignity.
It is for this reason that I argued previously, that the police service are under a duty to change the way they handle section 136 detentions and this may mean policy changing without the consent of the NHS. Very obviously, we’d all prefer partnership working and mutually agreed goals, jointly aspired towards but if that Plan A is not available, what is Plan B or Plan C to show the police forces and individual police officers are discharging their legal responsibilities properly? I would be asking this question if I couldn’t name the people who have died to whom the questions apply.
It should be a very sobering thought for senior managers: a potential criminal prosecution for ineffective arrangements if those arrangements lead to the death of someone to whom you owe a reasonable duty of care.
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