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NHS managers who fail hygiene standards face
sack
The government has announced that the Health Improvement and Protection Bill
will not include provision for criminal sanctions against senior staff whose
hospitals fall below required hygiene standards. Greg Bousfield talks to Sapna
Malik, specialist personal injury lawyer with Leigh, Day & Co, about why she is
"not surprised" at the move...
The
Health Improvement and Protection Bill will no longer include provision for
criminal sanctions or fines against senior hospital staff whose institutions
fail to meet hygiene standards, Health Secretary Patricia Hewitt has announced
at the Bill’s consultation launch.
Instead, Trust board members could be sacked for failing to meet hygiene
standards.
“I am not surprised that the criminal sanction has been removed, it was like the
corporate manslaughter bill, where we were originally promised a lot but didn’t
get very much,” says Sapna Malik, specialist personal injury lawyer with Leigh,
Day & Co. “We will continue to fight these claims from a civil liability
perspective.”
The government’s new proposal is that the Healthcare Commission will monitor
healthcare institutions’ compliance with hygiene guidelines and will serve a
health and safety-style improvement notice on any (public or private)
institution which fails to meet the required standards. The Healthcare
Commission will take no further action if standards are subsequently complied
with, within a specified required time-frame. However, in the situation where an
institution fails to comply, the Healthcare Commission could then refer the case
to the Secretary of State, who might dismiss a trust board or individual
members. The government says that a new compulsory code of practice for
healthcare associated infections (HCAIs) which has now open for public
consultation is the key to the new policy.
While the NHS Confederation is pleased that the threat of criminal sanctions
is gone from the Bill, some clinical negligence lawyers believe criminalisation
could have assisted in the difficult task of bringing successful claims for
negligence in hospital infection cases.
Criminalisation “would support the more general argument that the hospital was
failing at a more global level to act in a responsible and reasonable manner
with regard to infection control, but wouldn’t necessarily go to help an
individual case where you still have to prove individual causation,” Malik says.
Indeed, the difficulty of identifying the source of an individual’s infection –
and thus whether it arose from negligent or non-negligent sources – is a major
hurdle in establishing negligence claims and might also have represented a
hindrance in obtaining criminal convictions. “It can be very difficult to
pinpoint a particular decision or failure that can be linked to a particular
death or serious infection.” The government says that this is the major reason
it has dropped criminalisation.
The proposals for hygiene standards’ improvement notices and possible dismissals
might provide a similar type of assistance in establishing negligence claims
help claims, but this is uncertain. For example, the dismissal of a senior staff
member might be linked to a general failure to meet hygiene guidelines rather
than to any particular individual infection incident.
Breach of health and safety statute provides one of the few possibilities of
statute support for a negligence claim. “One of the angles we are looking at is
the use of the Control of Substances Hazardous to Health (COSH, 2002)
regulation. The benefit of that is that you don’t have to have a resources
argument [the defence that a hospital could not meet hygiene standards because
of under-funding] when it comes to a breach but there are certainly no
authoritative cases on it and one can see arguments against that as well,” she
says.
The HCAIs code of practice consultation runs until 23 September 2005.
(22/07/05)
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