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COVID-19: Could PPE shortages amount to corporate manslaughter?

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A ‘herculean effort’ has been exerted to increase the availability of protective gear for frontline NHS staff — but should more have been done sooner, and if so, who is accountable?


Undoubtedly, the coronavirus pandemic has caused rapid change to numerous aspects of life as we know it, touching the legal sphere in numerous ways.

If there is a public inquiry into how the pandemic has been handled, it is likely to include the availability and supply of personal protective equipment (PPE) to those working on the frontline, especially NHS staff or health and social care workers.

Since the COVID-19 crisis reached the UK the government has been under increasing pressure to accelerate the supply of PPE to those working on the frontline, addressing a fear that these people are most at risk of catching, spreading, and of dying from the novel virus.

There is a growing concern among health workers as to whether they are being put in harms way in their place of work due to the lack of PPE, and some have expressed their unwillingness to carry out their duties because of the heightened risks. The law relating to this is set out in the Health and Safety at Work Act 1974, which places an obligation on employers to provide a safe place of work.

One medic couple, Dr Meenal Viz and her husband Dr Nishant Joshi, have already instructed solicitors who have written to their trust setting out their claim (pre action protocol, as is required of them under the law) before taking out legal action. This is likely to be one of many.

For health professionals who have already lost their lives after contracting COVID-19 a more serious question which needs addressing now is whether there should be an investigation carried out under criminal law and charges brought against individuals or trusts for manslaughter (the unlawful killing of an individual). These investigations are the responsibility of the Health and Safety Executive (HSE).

The focus of HSE at present is on helping the government’s response, rather than investigating breaches from employers who may have failed in their moral and legal duty to limit their employees’ exposure to coronavirus.

Yet, the potential for future litigation and prosecution of those who may be considered to have failed may be numerous. In this short piece we look at whether a successful prosecution could be instigated against the NHS trusts in their failure to provide PPE to NHS and healthcare workers on the frontline for manslaughter.

To try to improve the UK’s situation over the past few weeks the NHS Supply Chain has delivered 397 million pieces of PPE equipment including FFP3 masks (masks which offer advanced levels of protection against dust, fumes or infection), surgical masks and other PPE equipment to NHS trusts and other healthcare settings. A hotline for NHS trusts to order PPE whenever they need it has also been introduced.

The World Health Organisation (WHO) has since confirmed that the UK’s new guidance is consistent with the highest levels of protection in the world.

In announcing that the distribution of PPE would be stepped up further (10 April) the Health Secretary Matt Hancock caused a backlash in suggesting that NHS workers have been using too much PPE, which may be a reason for the shortage. Hancock claimed “there is enough PPE to go around, but only if it is used in line with our guidance. We need everyone to treat PPE like the precious resource that it is”.

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The Royal College of Nursing openly rejected this. Dr Jenny Vaughan, of the Doctors Association UK also told Sky News that “we absolutely acknowledge that things have improved, but there are still many, many gaps and we can’t afford gaps when it comes to people’s lives”. As well as this, a member of the British Medical Association’s council, Dr David Wrigley, claimed that over 50% of doctors had responded to its survey saying they do not have the supplies they need in the first place.

The lack of PPE available to NHS staff and other healthcare workers, could potentially be a cause of death for those fighting this ‘war’ against COVID-19. Consultant urologist Abdul Mabud Chowdhury died aged 53, on 8 April, more than two weeks after first being admitted to hospital. Five days before his death he took to Facebook to warn the Prime Minister about the lack of PPE, appealing for “appropriate PPE and remedies” to “protect ourselves and our families”. John Alagos also died from the virus, the youngest nurse known to have died of COVID-19 in the UK, at the age of 23. His mother has since claimed he had not been wearing the right protective clothing at work after treating COVID-19 patients in 12-hour shifts at Watford General Hospital.

We have seen a ‘herculean effort’ being exerted in efforts to increase the availability of PPE recently. However, should more have been done sooner? And should we be holding anyone accountable for the death of those NHS/healthcare workers before PPE was stepped up?

The Corporate Manslaughter Act 2007 was a landmark Act introducing into law the possibility for finding companies and organisations liable and guilty of manslaughter as a result of serious management failures which resulted in a grossly negligent breach of a duty of care.

For a successful claim, the prosecution must prove the following three things:

(i) that the defendant is a qualifying organisation,
(ii) who owed a duty of care,
(iii) and that there was a gross breach of that duty (by the organisation) in the way in which its activities were managed/organised.

The management would need to be seen to be a substantial element in the breach and the gross breach of the organisations duty caused, or significantly contributed to the death.

Section 11(1) of the 2007 Act provides that specified government bodies can be prosecuted for corporate manslaughter, contrary to the exception that usually ‘Crown bodies’ cannot be prosecuted for criminal offences.

Schedule 1 lists the government bodies to which the offence applies, which includes the major departments of central government such as the Department of Health. The Department of Health and Social Care (DHSC) is a department of Her Majesty’s Government, responsible for government policy on health and adult social care (in England). Public bodies such as local authorities and NHS trusts, are bodies incorporated by statute (s.25 para 15) which can also be liable.

Sections 3-7 of the 2007 Act specify exceptions from liability relating to actions which exempts public body liability in public emergencies, exempting “decisions of a public authority in relation to issues of public policy (such as the allocation of public resources)”. This equally applies to policy decisions made by the central (or local) government, who are also exempt in these circumstances.

Due to the pandemic being a global issue, this ‘emergency’ exemption is something the trust would seek to rely upon.

Given the knowledge and advice our country gained from the preceding Italian experience and other countries around the world, we were behind the curve and by all accounts we were slow to take action and prepare for what was to come. There is much information as to what was known and what should have been done including mass testing and testing of healthcare professionals to stop them spreading the virus to colleagues. What was foreseeable weeks and months before it reached our shores, is wholly different to an emergency which was unknown before it was identified.

The question of whether this amounted to gross negligence is something which is a live issue and needs to be addressed as a matter of urgency by the HSE once we regain a sense of normality. Only then can criminal charges be contemplated.

The government has recently announced an inquiry into the disproportional impact the virus is having on obese, male and black, Asian and minority ethnic (BAME) communities following the higher number of deaths in proportion to those from white backgrounds, however the terms of reference do not go so far as dealing with the whole issue of the lack of PPE and testing or whether criminal charges should be brought.

Anna Hayes is a second-year law student at the University of Birmingham. Khadim Al’Hassan is a criminal barrister at Park Square Barristers.

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8 Comments

Rahul

It is an interesting and pretty forceful argument. I certainly hold Boris Johnson and the disastrous Conservative Party culpable for the way this has gone down. Everybody who voted for them should feel utterly ashamed.

Anon.

VOTE LEAVE

TAKE BACK CONTROL

80 seat maj

Keep drinking the cool aid

His(tory) lesson

The recent large majority is just the tip of the iceberg.

Exactly a decade ago, on May 6th 2010, things began to go seriously wrong for the United Kingdom.

David Cameron’s cynical ploy of blaming the global financial sector insolvency crisis on the incumbent Labour government paid off, but not quite well enough for the Tories to win a majority.

The hung parliament made Nick Clegg’s Lib-Dems the kingmakers, but in their lust for a tiny taste of second hand Tory power they signed up to an absolute absurdity of a coalition deal.

The promised to redraw the parliamentary rules to shackle themselves to the Tory party for five ruinous years in return for a handful of nothing.

They volunteered to be the human bullet shields for some of the most vile Tory policies ever conceived, all of which would never have been passed without the votes of the Lib-Dem austerity-enablers.

The 2012 NHS carve-up, George Osborne’s economically illiterate austerity agenda, Theresa May’s unlawfully racist “Hostile Environment”, Chris Grayling’s unlawful attack on UK workers’ right to unfair dismissal tribunals, Iain Duncan Smith’s unlawful forced unpaid labour schemes, absolutely disastrous public service cuts, annihilation of local government funding, systematic disability persecution, the longest period of collapsing real terms wages in recorded history, the lowest rate of house building since the 1920s, wanton ideological vandalism of the social safety net, £billions on arms sales to murderous tyrannical regimes, the fraudulent sale of the Royal Mail at miles below its true market value, lumbering students with vast high-interest university debts that over 80% will never be able to repay despite entire working lifetimes of repayments …

None of this ideological ruination could have been done without Lib-Dem collusion, and the wilful parliamentary votes of Lib-Dem MPs, and the resulting collapse in living standards went on to have extraordinary consequences.

After serving as human bullet shields for the Tories for five years the Lib-Dems were discarded like bad rubbish in 2015, but how on earth did Labour conspire to lose that election?

Instead of actively opposing the devastating austerity agenda at the core of most of this destructive ideological madness, they actually decided to imitate it, meaning the English electorate were left with a false choice between three near-identical versions of the same disgusting hard-right economic agenda, with only the colour of the rosettes really up for grabs.

Labour’s ploy was to appeal to “soft Tory” voters in marginal constituencies with their Austerity-lite agenda, but it spectacularly failed because it relied on taking their natural support for granted (an error they still keep on making).

For every “soft Tory” vote they won in 2015, scores of natural Labour voters either refused to turn out, or protest voted for the anti-austerity Greens instead.

In Scotland the SNP ran an anti-austerity, anti-Tory campaign and ended up taking 56 of the 59 seats, including 40 from Labour, proving the absolute sense in actively opposing the Tories, rather than pathetically imitating them.

But this abject failure to oppose austerity had even more serious consequences than ineptly handing an absolutely gift-wrapped Labour election victory back to the Tories, it ended up causing years of Brexit chaos too.

Tory right-wingers cynically used their own collapse in living standards, caused by their austerity agenda, to propagandise against the EU.

They came up with the ultra-cynical line that immigrants and the EU were to blame for collapsing living standards, falling real-terms wages, the housing shortage, and shockingly overwhelmed public services.

And the god-damned ‘centrists’ couldn’t argue back by pointing out that all of this damage was actually caused by austerity ruination, because to do that would have been to admit that they were absolutely wrong to have enabled (Lib-Dems) and imitated (the Labour right-wingers) Tory austerity extremism.

So the ‘centrists’ just bit their tongues and let this ultra-cynical right-wing lie stand, because to call it out would have meant implicating themselves.

That’s how we got ourselves into the situation where a bunch of populist far-right liars with no actual plan ended up dictating the last four years of chaos … but it gets even worse.

The Westminster establishment’s fixation with austerity extremism delivered Brexit chaos, but the ruinous hard-right austerity agenda continued running in the background, further weakening our economy and our public services.

Multiple warnings that the NHS was unprepared for a potential pandemic were ignored on the grounds of cost, 17,000 hospital beds were scrapped, NHS stockpiles of protective gear were run down to empty, tens of thousands of NHS positions were left vacant, potential new nurses were driven away through the scrapping of NHS Bursaries, the social care system was absolutely cut to shreds, A&E waiting times soared, tens of thousands of people were driven into early graves, and scores of NHS facilities were shut down, often in the face of vehement local opposition.

When the coronavirus crisis hit, the health system was in such a run down and mismanaged state that an effective response had been rendered impossible to muster.

Doctors, nurses, and all the other NHS staff have worked tirelessly to combat the virus, but the system itself was in such a shocking state of disrepair after a decade of Tory austerity vandalism, that a vast death toll was already pretty much inevitable, even before Boris Johnson decided that he was going to become “Superman of Capitalism” by actively allowing the virus to spread like wildfire in order to eke out a few more weeks of “business as usual” before the true devastating cost of letting the virus spread out of control eventually became too obvious to ignore.

Back in 2010 the Lib-Dems could have formed a confidence and supply agreement with the Tories, backing what they supported, and winning plaudits by shooting down all the horrifying hard-right lunacy from the sidelines, but they were blinded by their lust for six figure ministerial salaries and chauffeur-driven cars, so they decided to wilfully enable all the austerity ruination.

The economic damage, and the dreadful reduction in ordinary people’s living standards being “a price worth paying” in return for their ego trip of second hand Tory power.

The devastating and deadly consequences of this sell-out have continued into the present day, and will continue to get even worse into the future now that the lazy, incompetent, lying, elitist oaf Johnson has the biggest Tory majority since Thatcher, and an unwavering determination to drive us towards the most damaging “no deal” version of Brexit possible, purely because it offers the best disaster capitalist opportunities for his city speculator mates.

It all could have been so different if the bloody awful ‘centrists’ had just been a little less keen to actively collude with and imitate ideologically crazed hard-right Tory austerity extremism.

But they always knew that the price of this austerity collusion would be borne by other people, not by them.

No matter how bad it got for ordinary people, they always knew that they’d keep their gold-plated parliamentary pensions, and walk into six figure corporate consultancies, so they simply didn’t care.

Anon

How about writing a book next time?

Min

Mad truth fam

Paralegal

I would imagine that the biggest party responsible would be the sec of state for health.

There’s even potential for certain decisions to be JR’d assuming they’re not time-barred

John Keilaus

A very slippery set of circumstances….
It would be even more criminal to see Trusts prosecuted instead of the relevant govt departments who allowed the NHS and the UK pandemic stockpile to both be so badly neglected, starved and run into the ground. Surely the real issue lies therein… Why were our stockpiles left behind, and, why did the govt fail to respond more quickly – both in securing supplies and following up with UK companies offering manufacturing facilities.
#Scandalous

Anonymous

Supplying copious amount of PPE is just simply delaying the inevitable… no amount of PPE is effective in the longer run without antibodies or a vaccine, or both.

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