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Duncan Gordon-Smith, solicitor

Corporate Manslaughter and Corporate Homicide: How to get it right NHS Facilities Management Network 7 th October 2008 Birkbeck College. Duncan Gordon-Smith, solicitor. Five principles to get it right. Plan ahead Deliver the plan Monitor Review When an event occurs, react. Overview.

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Duncan Gordon-Smith, solicitor

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  1. Corporate Manslaughter and Corporate Homicide: How to get it right NHS Facilities Management Network7th October 2008Birkbeck College Duncan Gordon-Smith, solicitor

  2. Five principles to get it right • Plan ahead • Deliver the plan • Monitor • Review • When an event occurs, react

  3. Overview • Understanding the context of the new offence - why has the new law been introduced? • The anatomy of the new offence • Getting it right – the principles in practice

  4. Impetus for the new legislation – the conduct that the new offence is meant to deter • Serious management failures, causing death • Herald of Free Enterprise, March 1987, 200 died. Sheen report: “from the top to bottom, the body corporate was infected with the disease of sloppiness.” • Clapham rail crash, December 1988, 35 died, 500 injured, British Rail were criticised for practices that were “positively dangerous” • Southall rail crash, September 1997, 7 died, 151 injured. Trial judge identified a “serious fault of senior management” • Hatfield rail crash, October 2000, 4 died, 70 injured. “Serious management failures by Railtrack”, “the worst case of sustained industrial negligence in a high risk industry I have ever seen” • Corporate manslaughter could not be proved • Fines imposed did not address public disquiet

  5. Key aspects of the offence • Death • Gross breach of duty • The involvement of senior management

  6. The scope of the offence • A duty of care must be owed to the deceased • That duty of care must be ‘relevant’ • Employer duties • Occupier duties • In connection with the supply of goods or services - patients • In connection with construction or maintenance operations • In connection with using or keeping any plant, vehicle or other thing

  7. Planning • Understand the business • Identify the senior management team • Set the direction for H&S management • Communicate and promote that direction to the organisation • Formalise the discussion of H&S issues at Board level • H&S as a regular item on the Board agenda • Director with responsibility for H&S • The role of the non-execs

  8. Delivery • Provide the necessary resources • Dedicated H&S committee • The importance of systems – e.g. procurement • Obtain quality advice • Assess the risks • Communication – send and receive • Involve the workforce • Training

  9. Monitoring • H&S challenges are dynamic • Opportunistic reporting – incident reports • Structured reporting – periodic audit • Specific reporting – e.g. where new processes are introduced • Keep up to date • Measure it • Record it

  10. Reviews • Ensure that the organisation’s H&S policy matches its current priorities, plans and targets • Use external audit as well as internal audit • Learn from adverse incidents • Interrogate the data • Feed lessons back into the process • Publish the findings where appropriate

  11. The H&S Cycle Monitor

  12. When an event occurs, react • Preparation • Training • Leadership • Analysis • Openness • Confidence

  13. The scope of the challenge • Potential for very serious legal, financial and reputational consequences • No new duties of care • Reserved for the most serious of cases • Builds on existing H&S foundations Well-run businesses that already have effective systems in place for managing health and safety have nothing to fear from the new legislation. (Ministry of Justice)

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