‘No-one fully responsible’: a ‘collusion of anonymity’ protecting health-care bodies from manslaughter charges?

The Corporate Manslaughter and Corporate Homicide Act 2007 came into force on 6 April 2008. The Act has been seen by some as a better means of ensuring accountability for fatal medical errors than the prosecution of individual doctors responsible for the final mistake in a long catalogue of errors. ¹ I examine the key features of the Act, and how it might have hypothetically applied to the various bodies involved in one highly publicized tragedy, had the Act been in force when the event occurred. While this is unavoidably hypothetical and speculative, it is argued that the Act may not be as easy to apply to National Health Service (NHS) bodies and related private organizations as its proponents hoped. The Act may not ensure that all those organizations morally culpable for a tragic, fatal error are held legally accountable for gross failures in their responsibilities to patients. This reflects both the complex nature of the Act and the difficulties in applying it to a situation involving several bodies, each responsible for different aspects of provision of NHS care. The case chosen for this exercise is that of Dr Daniel Ubani.

The collusion of anonymity – a medical concept with wider application?

Many doctors will be familiar with the concept of the ‘collusion of anonymity’, described by Balint. ² As he put it, in the context of a patient being managed by a general practitioner (GP), two surgeons, two physicians and a psychiatrist:

Vital decisions are taken without anyone feeling fully responsible.

It may be that a similar phenomenon is occurring with respect to legal liability for medical mistakes in the NHS. This possibility should be borne in mind when the conduct of the different bodies is considered. Questions of the ethical responsibilities of individuals are much debated. The importance of focusing on the responsibilities of organizations providing care for NHS patients is becoming ever more crucial and more and more NHS services are contracted out to a bewildering range of ‘providers’. It is the job of the law to seek to ensure that those who provide care are held accountable and cannot hide behind the sheer number of those involved in tragic error.

Dr Ubani

Dr Ubani was working for Take Care Now Ltd (TCN), a commercial provider of out-of-hours primary care services in Cambridgeshire. He administered diamorphine to a patient, Mr Gray, on 16 February 2008. The dose he gave was 100 mg, which proved fatal. This was unsurprising, because it is at least 10 times the recommended initial dose and overdose is well-known to carry a risk of death.

Dr Ubani practised in Germany as a cosmetic surgeon. The circumstances of his period of duty were unfavourable, by his own admission in an embarrassingly badly written letter to relatives of Mr Gray. ³ He had flown to the UK in order to undertake GP out-of-hours work. His command of English was not good. He was tired. He admitted that he was unfamiliar with diamorphine. He did not check the dose.

Dr Ubani was subsequently erased by the General Medical Council (GMC) following a decision taken by its Fitness to Practise Panel on 18 June 2010, after it considered allegations in respect of Mr Gray and two other patients. ⁴ The GMC's Fitness to Practise Panel stated that he was ‘not competent or experienced’ to work as an NHS GP. He had earlier admitted, to the Witten District Court in Germany, the criminal offence of causing the death of Mr Gray by negligence. This was done by way of written submissions. His sentence was nine months imprisonment, suspended for two years.

As the complex history of the tragedy will show, Dr Ubani was by no means solely responsible for the state of affairs that led to his patient's death. A number of bodies might be seen as culpable, raising the issue of whether any of these organizations could have faced prosecution for corporate manslaughter, had The Corporate Manslaughter and Corporate Homicide Act 2007 been in force at the time. Under the previous common law, it was very difficult to prosecute all but the smallest corporate bodies, largely because of the so-called ‘identification principle’. ⁵ This meant that for a corporate body to be successfully prosecuted, it was necessary also to prosecute an individual of sufficient seniority to constitute a ‘controlling mind’ of the company. In practice this meant that prosecutions of corporate bodies were rare, and only small companies were in practice found liable. So individuals were prosecuted for manslaughter, but their employing NHS bodies only faced criminal liability, if at all, for lesser offences. ⁶

Possible corporate defendants

Dr Ubani was recruited to work for TCN by Cimarron UK Ltd. TCN had a contract with the Cambridgeshire Primary Care Trust (PCT) to provide out-of-hours primary care. In order to work in general practice in England, it is necessary to be on a performers' list. Dr Ubani was on the performers' list of Cornwall and Isles of Scilly Primary Care Trust. He was also required to be on the medical register held by the GMC, and on its GP register; both of these requirements were also satisfied. The work of Cambridgeshire PCT was overseen by the East of England Strategic Health Authority (SHA).

If a corporate body were to be held to account for Dr Ubani's conduct, we can sensibly look at the roles of:

Take Care Now Ltd (TCN);

Cimarron UK Ltd (Cimarron);

Cambridgeshire PCT;

Cornwall and Isles of Scilly PCT;

East of England SHA;

General Medical Council.

These will be considered in turn, as if the 2007 Act had been in force at the relevant time.

The crime of corporate manslaughter

The Act is surprisingly complex, and in places its interpretation is difficult. The key features are discussed by Matthews. ⁷

The elements of the offence are found in section 1 of the Act:

(1) An organization to which this section applies is guilty of an offence if the way in which its activities are managed or organized:

(a) causes a person's death, and

(b) amounts to a gross breach of a relevant duty of care owed by the organization to the deceased…

(3) An organization is guilty of an offence under this section only if the way in which its activities are managed or organized by its senior management is a substantial element in the breach referred to in subsection (1).

Relevant duty of care

The relevant duty of care is defined in section 2, and exemptions are in sections 3–7. Existence of a relevant duty of care is a matter of law for the judge to decide. ⁸ The starting point is whether a duty of care exists in the civil law of negligence, and in this context the matter seems surprisingly obscure. ⁹ It might be thought that the existence or not of a duty of care would be a simple matter to determine, as it usually is in civil cases concerning clinical negligence. This is not necessarily the case, however. ¹⁰

It is likely that in the criminal setting, there will be legal argument about each element of the crime and this will start with the relevant duty of care in the case of some defendants. This will include the need to satisfy the civil test in Caparo, which requires foreseeability, proximity between the parties, and that it is ‘fair, just and reasonable’ to impose a duty of care. ¹¹ The explanatory notes to the Bill included the statement, ‘the questions of fact that the judge will need to consider will generally be uncontroversial…’. The notes indicate that these include matters which will influence the question of law to be decided by the judge as to whether a relevant duty of care exists. These explanatory notes seem unduly optimistic. A similar statement was made by a junior Home Office minister when the Bill was in committee stage in the House of Commons. The same minister went on to state that a defendant could raise the issue both before the case reaches court and as a preliminary point at the beginning of the trial. ¹² This seems more likely to happen than not in some medical cases of possible corporate manslaughter, and may include appeals before the substantive trial starts.

Matthews states:

…the prosecution will have to particularize the nature of any duty of care alleged to have existed, whether in the indictment or in a separate document. ¹³

Section 2(1) of the Act lists categories of activity which give rise to a relevant duty of care, such that NHS bodies ‘supply by the organization of goods or services (whether for consideration or not)’. ¹⁴ However, the Explanatory Notes to the Bill state that:

many functions that are peculiarly an aspect of government are not covered by the offence because they will not fall within any of the categories of duty of care in this clause. In particular the offence will not extend to circumstances where public bodies perform activities for the benefit of the community at large but without supplying services to particular individuals. ¹⁵

Parliamentary discussion of the Bill included explanation of why section 2(1) uses the term ‘supply’ rather than ‘provision’. It was argued that ‘provision was a wider term, and would include those circumstances in which a service was provided to the public at large; it was intended that this would not constitute a relevant duty of care’. ¹⁶ Matthews explains that the word ‘supply’ is intended to convey a relationship of proximity between the organization and the victim. ¹⁷

Problems have arisen for claimants who have been treated under the auspices of the NHS but by private bodies with whom an NHS body has ‘contracted out’ services. In general, it is thought that if an NHS body such as a PCT directly provides NHS care and treatment, then it retains civil negligence liability. In contracting out to private providers, there has been documented inconsistency as to whether the National Health Service Litigation Authority (NHSLA) covers the liability of these providers. ¹⁸ Section 142 of the Health and Social Care Act 2008 provides for subordinate legislation to allow private bodies' negligence liability to be covered by the NHSLA. This development suggests that they do have a civil duty of care, but the PCTs with which they hold contracts do not.

A civil duty of care does form the basis of the relevant duty of care in this specific criminal offence and there is some case law to suggest that it may not be found where services are contracted to private bodies. In Farraj v Kings Healthcare NHS Trust ¹⁹ a hospital contracted a laboratory test to a private company. The Court of Appeal held that the hospital did not owe a non-delegable duty of care to the claimant patient. ²⁰ This was the court's conclusion after considering apparently conflicting authorities, which serve to illustrate the complexity of the law on this point. It was held in Farraj that the duty to take reasonable care might be discharged by using an apparently competent independent contractor. There remains the question of whether a duty might exist if an independent contractor is incompetent and the contracting NHS body knew this or ought to have known.

A similar case was A (a child) v Ministry of Defence and Guy's and St Thomas' NHS Trust. ²¹ The child of a serviceman sustained neurological injury as a consequence of the negligence of a German obstetrician. The claimant argued that the Ministry and the NHS Trust owed a non-delegable duty to provide obstetric treatment with reasonable skill and care. The arrangement was complex. The Ministry had engaged in a process of ‘market testing’, which involved contracting out, to other providers, services it had previously provided. It had arranged procurement through a group called ‘The Health Alliance’, which had, according to the Court of Appeal, no legal personality. The Court noted that the Ministry had ‘distanced itself from provision of secondary health care in Germany’ and entered into a contract with the NHS Trust to procure health services in Germany, including obstetrics. The court decided that compensation should be sought directly from the German hospital. The cases of Farraj and A illustrate difficulties with establishing duties of care owed by NHS bodies when non-NHS contractors are involved. The currently prevailing view is expressed in Clerk and Lindsell on Torts. It recognizes legal authorities which suggest that ‘it is conceivable … that health authorities may be under a personal, non-delegable duty to see that care is taken in providing treatment’. ²² Citing A and Farraj, however, it discusses the possible principle that a health authority was liable for any fault exhibited by an independent contractor, and concludes, ‘it does not apply where an authority enters into a private arrangement to supply services by contract…’ ²³ The basis for finding a relevant duty of care in a criminal prosecution for manslaughter against a PCT or similar body, in the circumstances of the Ubani case, is therefore very weak.

Gross breach

The ‘gross breach’ in section 1 (1)(b) is gross, according to section 1(4)(b), ‘if the conduct alleged to amount to a breach of that duty falls far below what can reasonably be expected of the organization in the circumstances’. Section 8(2) provides:

(2) The jury must consider whether the evidence shows that the organization failed to comply with any health and safety legislation that relates to the alleged breach, and if so

(a) how serious that failure was;

(b) how much of a risk of death it posed.

Furthermore, under section 8 (3) of the Act, the jury may consider evidence that there were ‘attitudes, policies, systems or accepted practices within the organization’ which are likely to have encouraged failure to comply with health and safety legislation relevant to the breach of duty of care, or to have produced tolerance of it.

It will be noted that the Act offers more guidance to a jury on what constitutes a gross breach of duty than the common law offers in the crime of gross negligence manslaughter. The vagueness and circularity of the test to be applied by juries is a standard criticism of the offence of gross negligence manslaughter. ²⁴

Section 1(3) provides:

An organization is guilty of an offence under this section only if the way in which its activities are managed or organized by its senior management is a substantial element in the breach referred to in subsection (1).

‘Substantial element’ is not defined. ‘Senior management’ is defined in section 1(4)(c) as follows:

‘senior management’, in relation to an organization, means the persons who play significant roles in:

(i) the making of decisions about how the whole or a substantial part of its activities are to be managed or organized, or

(ii) the actual managing or organizing of the whole or a substantial part of those activities.

To summarize, in order to establish liability, the following criteria must be satisfied:

A ‘relevant duty of care’ exists;

The duty is not excluded;

There is a gross breach of the relevant duty of care;

The death is caused by the way activities are managed or organized;

The role of senior management is a ‘substantial element’ in the breach of the relevant duty.

Exemptions

Section 3 of the Act provides an exemption from a relevant duty of care for a public authority which makes a decision about matters of public policy; this specifically includes resource allocation. Thus, for example, a decision might be made not to provide a particular drug en masse, such as Tamiflu, because of the enormous cost of doing so. Samuels argues that a proper policy for resource allocation is consistent with the exemption, but slack or muddled administration may not be. He also observes that the distinction may be difficult to draw between public policy and mistakes made in the treatment of individual patients. ²⁵ In the latter situation, a duty of care in civil law is likely to arise following Kent v Griffiths ²⁶ and that would give rise to a duty under the 2007 Act. It might reasonably be expected that if a body supplying health care is prosecuted under the Act, it would seek to argue, if at all possible, that the exemption applies on the grounds that it was implementing public policy.

Take Care Now

It is highly likely that TCN owed a relevant duty of care to the patients seen by Dr Ubani while he was the person providing the service which TCN had been commissioned to provide. It was the organization with which Cambridgeshire PCT had contracted to provide out-of-hours primary care. It seems unlikely that the duty could be subject to the exemption in section 3 of the Act, mentioned above. Important information exists in the public domain which can give an indication of whether a jury might reach the conclusion that a gross breach had occurred.

The Care Quality Commission (CQC) investigated TCN and reported in 2010. ²⁷ It was asked to do this by NHS East of England, the SHA, following Dr Ubani's fatal mistake. The terms of reference included a review of events from 1 April 2007.

Several factors arise from the investigation which might be evidence of a gross breach. The report notes that TCN relied heavily on doctors flying into the UK to work weekends and that some of them worked long hours. It tolerated potentially unsafe staffing levels. Half of the staff thought that staffing levels were poor or not good; they reported that their concerns were ignored or dismissed. It did not act quickly enough on concerns about diamorphine, namely previous overdose incidents at TCN and an alert from the National Patient Safety Agency. A doctor who had been involved in dealing with one of TCN's previous incidents had warned that a systemic problem existed and that:

it is only a matter of time before a patient is killed by an overdose of morphine from one of our palliative care boxes. ²⁸

TCN had inadequate medicines management systems. Criticisms were made of the induction programme arranged for Dr Ubani, including that the information about controlled drugs (including diamorphine) was not prominent. The doctor who performed the induction was already busy and had never done one before.

TCN was asked by the CQC to produce minutes of its executive meetings. It initially did not produce them, citing commercial confidentiality. Later it amended this to stating that minutes were unavailable because they were not taken. The CQC notes that it provided information to the investigation that was incorrect, and omitted relevant information.

It seems possible, to say the least, that TCN's numerous problems could constitute a gross breach of a relevant duty of care, had the Act been in force at the relevant time. They might well indicate that the death occurred because of the way activities were managed or organized. That being the case, it is necessary to decide whether the role of senior management was a substantial element in the gross breach. Such wide-ranging criticism suggests that it probably was, particularly, the failure to respond to warnings and concerns raised. The lack of minutes of executive meetings means that it may be harder to establish this, although it might be evidence of very poor management in itself, especially given the contradictory stated reasons for it. It seems likely that a jury would not interpret this favourably.

Establishment of the offence also requires that the death was caused by the way activities were managed or organized. Causation must be established according to the general principles of criminal law, ²⁹ such that causation must be proved both factually and legally. The act or omission of the accused need not be the sole or even the main cause of death, but it must be a significant or substantial contributing factor. Having considered the possible failures of TCN, the crucial question would be whether the victim's death would have occurred in the absence of any such failings. We might speculate that in the event that TCN had responded appropriately to concerns raised about inadequate staffing, poor medicine management and, in particular, previous incidents involving overdoses of diamorphine, Gray's death would have been avoided. Had TCN taken appropriate precautionary action, Ubani would have been subject to a proper induction which included better information on controlled drugs such as morphine. Similarly, one could argue that an appropriate system of medicine management would have limited the quantity of diamorphine available to Ubani, thereby removing the risk of fatal overdose. It might be expected, however, that the defence lawyers would argue that the incompetent Dr Ubani was the cause of the patient's death, not any problems at TCN. As Ormerod and Taylor ³⁰ point out, despite the recommendation of the Law Commission, the Act does not make it explicit that an organization will not avoid liability simply because the immediate cause of death is the act or omission of an ‘individual’. Thus, TCN would argue that the fatal error of Dr Ubani broke the chain of causation between any possible failures on their part and the death of the victim. They would also argue that his incompetence was unrelated to its internal organization, that he was selected by another company and that TCN was entitled to rely on Dr Ubani's inclusion on the GMC register and Cornwall and Isle of Scilly PCT's Performers List. Such arguments might not be sufficiently persuasive, but they do illustrate a problem in establishing liability.

TCN might have satisfied the criteria of the 2007 Act, had it been in force, but it is by no means certain that prosecution would result in conviction and if the Crown Prosecution Service judged that there was a poor prospect of conviction, TCN might never face trial.

Cimarron UK Ltd

This is the company which recruited Dr Ubani to work for TCN. It is not mentioned in the CQC report, but is mentioned in the minutes of the GMC's Fitness to Practise Panel. ³¹ It is unlikely that a relevant duty of care would have existed between Cimarron UK Ltd and any patient seen by the doctors it recruited for TCN. It seems unlikely that there would be sufficient proximity between the recruitment company and an individual patient. Even if a relevant duty of care existed, it is not clear that the other elements of the crime would be established in order for the offence to be completed. There do not appear to be any applicable exemptions under section 3.

That noted, it is interesting to examine whether, in the unlikely event of a duty having existed, there was a gross breach. The GMC's Fitness to Practise Panel minutes offer some relevant information which might point to a gross breach of duty. This includes the following:

Cimarron made assumptions about Dr Ubani's experience and competence based on the fact that he was registered with the GMC, was on the Cornwall & Isle of Scilly's PCT performers list and was classified by the GMC as exempt from UK vocational training requirements for general practice. ³²

A reasonable observer might, however, conclude that Cimarron was entitled to rely upon a PCT performers' list and the GMC's register of medical practitioners and GP register. The GMC's Fitness to Practise Panel went on to state:

The Panel has concerns that whilst there may be a perception that registration with the GMC is an automatic indication of competence, it notes that the GMC is not in a position to test either the medical competence or language skills of doctors from the EU. ³³

That raises an interesting point of EU law, discussed below in the context of the GMC's potential liability. The Panel expressed concerns about Dr Ubani's employment, and held that he was ‘not competent or experienced’ to work as an NHS GP.

There is an implication that Cimarron should have carried out its own assessment of Dr Ubani's competence. It appears that they relied upon statements made by others, principally the GMC and Cornwall and Isles of Scilly PCT. In the circumstances and at the time, that may have seemed reasonable. It does not appear to constitute a gross breach of any duty which may exist. That being the case, the role of senior management is not a significant factor, even if the senior management of Cimarron had taken a positive decision to rely on the doctor's name appearing on the GMC's medical register, GP register and a PCT performers' list. There is also a question as to whether the assumptions made by Cimarron caused the patient's death; it might argue that the problems at TCN breached the chain of causation between itself and the patient, and then a further break in the chain of causation occurred in relation to Ubani's fatal error. Overall, it seems that Cimarron UK would not be guilty of corporate manslaughter if the Act had been in force.

Cambridgeshire Primary Care Trust

Cambridgeshire PCT commissioned the out-of-hours service from TCN. This PCT was thus the arbiter of the kind of care those patients within its jurisdiction would receive. The PCT made choices that proved fatal for David Gray.

The CQC report notes that some PCTs which contracted with TCN inherited financial deficits and saw out-of-hours services as an area of activity offering scope for savings. ³⁴ It was difficult to recruit local GPs to work in the service; the CQC report attributes this in part to pay rates. There was little involvement of GPs in the commissioning process; some were also tendering to provide the service and were excluded through conflict of interest. PCTs did not take steps to involve local GPs in commissioning.

The CQC notes that contracts between PCTs and TCN did not specify what type of clinician was required. This is not as surprising as it may seem; part of the reform driven through by the government in the 2004 GP contract resulted in common use of nurses and paramedics in out-of-hours primary care services. Neither did contracts specify staffing levels. This was not necessarily wrong in itself, as National Quality Requirements (NQRs) existed, and PCTs reportedly sought adherence to these.

The CQC also criticized Cambridgeshire PCT for inadequate monitoring of its contract with TCN. TCN stated that NQRs had been achieved. However, the reliability of the figures was questionable; PCT staff did not understand the reports, or the basis on which they were made. The CQC found that staff responsible for quality and those responsible for contract monitoring showed little integration. No details of individual complaints were supplied by TCN until after Dr Ubani's fatal mistake.

Because Cambridgeshire PCT contracted out-of-hours primary care to TCN, it appears, following the cases of Farraj and A, discussed above, that a court would not find a civil duty of care. That being the case, it seems unlikely that a judge would find that a relevant duty of care existed for the purposes of the 2007 Act.

If a duty did exist, it is arguable as to whether a gross breach of a duty of care occurred. If it did, then it certainly may be argued that the death was caused by the way services were managed or organized at the PCT. The CQC considered the role of senior management in its report. The board of Cambridgeshire PCT did not usually discuss performance of out-of-hours services, and the non-executives were not well informed about them. It could be argued that the board should have discussed these services, and this was a possible ‘substantial element’ in any breach of duty. Again, causation would need to be demonstrated. It is not clear that the organizational shortcomings at Cambridgeshire PCT may be said to have legally caused the patient's death. Given TCN's subsequent neglect of duty in respect of staff and drug management and the inadequate induction they provided for Ubani, together with the fatal error of the German doctor, it would be difficult to show a sufficient causal link between the PCT's actions and the victim's death.

Generally, it seems possible that the PCT could have been liable for corporate manslaughter under the Act, but the case is less strong than that against TCN, and the question of the existence or not of a relevant duty of care is of key importance.

Cornwall & Isles of Scilly Primary Care Trust

In order to work as a GP in England, it is necessary for the doctor to be on a performers list of a PCT. ³⁵ This process is governed by the National Health Service (Performers Lists) Regulations 2004 (SI 2004/585), as amended. Regulation 6 gives reasons for refusal of inclusion, which include a language test at regulation 6(2)(b). A PCT must refuse inclusion if:

it is not satisfied he has the knowledge of English which, in his own interests or those of his patients, is necessary in performing the services, which those included in the relevant performers list perform, in its area.

Inclusion on the list of one PCT allows the doctor to work not only there but also in the areas covered by other PCTs in England. Cornwall and Isles of Scilly PCT has published its answers to some questions posed to it under the provisions of the Freedom of Information Act 2000. ³⁶ It confirms some legal requirements for inclusion. It declines to answer specific questions about Dr Ubani's application, except to state that ‘applicants must demonstrate appropriate training in general practice which means providing recognized certificates to the GMC’. The CQC report states that Dr Ubani made another application to join the performers list in Leeds. ³⁷ This was unsuccessful, because he failed a language test, did not supply evidence that he was going to work in Leeds and one of his references was found to be inadmissible. It appears that the only body which tested his English language, Leeds PCT, rejected him.

Unlike Leeds PCT, Cornwall and Isles of Scilly did not set its own language test or ask Dr Ubani to provide evidence that he intended to work locally. It declined to comment on his specific application, including whether he was asked for evidence to show that he had ever undergone any training in general practice. It cited section 40 of the Freedom of Information Act 2000 as providing an absolute exemption for personal data.

The House of Commons Health Committee heard evidence from the Patients' Association, and the sons of Dr Ubani's victim, that Cornwall and Isles of Scilly PCT had already received concerns about foreign doctors, over a year earlier. ³⁸ There was also a debate in Westminster Hall about the quality of out-of-hours services in Cornwall, including significant language problems. ³⁹ MPs had clearly been raising concerns both with the PCT and the Department of Health. The evidence also referred to a press report about another doctor who ‘spoke so little English he was not able to call an ambulance’. ⁴⁰ One significant point about this evidence is that the senior management must have been aware of the concerns about the linguistic ability of doctors it was including on its performers list, at least several months before it registered Dr Ubani. Although we may only speculate, the possibility must be considered that the publicity may even have attracted doctors with poor English language skills to apply to this PCT.

Of the various bodies involved, Cornwall and Isles of Scilly PCT had the legal responsibility to assess Dr Ubani's language skills. There is scope for debate about whether this gives rise to a relevant duty of care, but it probably does not.

As noted already, the influence of civil duty of care on the relevant duty of care under the 2007 Act is important. Was there a civil duty of care between Cornwall and Isles of Scilly PCT towards a patient in Cambridgeshire? A key point here is that the PCT is performing an important statutory duty for the potential benefit of NHS patients throughout England. It concerns matters central to the delivery of safe and competent medical care. Although it was generally expected that doctors would apply to join performers lists in areas where they would work, this was certainly not rigidly applied. It might be argued that any PCT would owe a duty of care to any patient in England affected by a doctor's incompetence when it had failed to carry out its statutory duty. It would be illogical for this duty to apply only within a PCT's own boundaries. However, it is generally the case in civil law that public bodies do not owe a duty of care to every person living in the area for which they are responsible. ⁴¹ Applying the Caparo formula, there is probably insufficient proximity between the PCT and the individual patient, and it may not be considered fair, just and reasonable to find a duty. That being the case, Cornwall and Isles of Scilly PCT would not owe a duty of care to Mr Gray, wherever he lived, in civil law. For a relevant duty of care to be found for the purposes of corporate manslaughter, a powerful line of authority from the civil law of negligence would need to be overcome; it seems improbable that this would happen.

If a relevant duty of care were established, then the other elements of the crime must be considered. The inclusion of Dr Ubani on the performers list was described as ‘in breach of the law’ by the junior health minister, Mike O'Brien MP, in evidence to the House of Commons Health Committee. ⁴² It seems clear that this was the case. Whether this would translate into a gross breach of any relevant duty of care in the eyes of a jury is also unclear. It would be necessary to examine evidence about the role of senior management in the PCT. Minutes of its board meetings are on its website, but the papers about out-of-hours services for the board meeting following the Parliamentary debate are curiously unavailable. ⁴³ Minutes of the meeting note the political and media interest, but make no mention of the language issue and state that:

Improvements have been seen across all indicators with 100% being reached in many of the targets. ⁴⁴

Minutes of the following meeting note improvements, but again the language issue is not addressed, even though it had featured in the political and media interest. ⁴⁵ If this is indicative of the attitude of the senior management, then a jury might have viewed this unfavourably. Again, it might be difficult to establish causation. While this PCT has demonstrated errors in its organization, it would invariably argue that they are not the cause of the death, and that the shortcomings of Cambridgeshire PCT, Cimarron, TCN and Dr Ubani all break the chain of causation.

NHS East of England SHA

Again, the CQC report is a useful source of information. ⁴⁶ This body, which has responsibility for providing strategic leadership to all NHS bodies in its area, reportedly had as its priorities national targets and financial stability. It worked in a culture of ‘testing the market’ in which the Department of Health encouraged use of different providers. The CQC found that the SHA did not have a system to identify serious incidents in out-of-hours services. Subsequently such a system was developed.

Applying the rules of negligence, the SHA probably would not have had a relevant duty of care to individual patients for the purposes of the Act. SHAs are not infrequently defendants in civil clinical negligence cases, although this is sometimes because they have inherited liability from another NHS body. However, a SHA may be named as a defendant in its own right, as in DA v North East London Strategic Health Authority. ⁴⁷ The SHA might realistically argue for an exemption on grounds of public policy under section 3 of the Act. Importantly, however, the same considerations about duty of care for outsourced services which have applied to Cambridgeshire PCT must presumably apply to the SHA which oversees it. Applying Farraj and A, it is unlikely that the SHA would have a relevant duty of care. Arguments, against finding a duty of care, based on proximity, would be strong.

It is far from clear that its omissions would be viewed as a gross breach of a duty, if it owed one. Again, it could argue that mistakes made by others would break the chain of causation. Overall, it seems that the SHA would not be liable under the Act, on the known facts.

General Medical Council

It is noteworthy that other organizations relied on Dr Ubani's inclusion on the necessary registers held by the GMC. The GMC itself addressed this point in a press statement at the time it erased Dr Ubani. ⁴⁸ It stated:

As the guardian of standards for doctors working in this country, the GMC must be able to assess the language and clinical competence of doctors who come from Europe, as we already do for doctors coming from the rest of the world.

The current obstacle to the GMC assessing language and clinical competence appears to be European Union law. The current source of the detail of this law is Directive 2005/36/EC. Medical qualifications in EU member states are recognized in the other member states. The GMC explains that if a national of an EU member state holds a qualification in general practice listed in Annex 5.1.5 of the directive, then he or she is entitled to be included on its GP register. ⁴⁹ In its statement the GMC states that it is working with the UK government and the European Union to find a solution. There is a sense of déjà vu about this. In 2006 the Department of Health produced a consultation document, Good Doctors, Safer Patients. ⁵⁰ Recommendation 21 addressed this issue, indicating that an opinion should be sought ‘in Europe’ as to the legality of introducing testing of EU doctors by the GMC. Interestingly, Article 53 of the Directive 2005/36/EU states:

Persons benefiting from the recognition of professional qualifications shall have a knowledge of languages necessary for practising the profession in the host Member State.

Hewson ⁵¹ notes that in an earlier document, Directive 93/16/EEC, Article 20(3) states:

Member States shall see to it, that, where appropriate, the persons concerned acquire, in their interest and that of their patients, the linguistic knowledge necessary to the exercise of their profession in that country.

The issue was examined by the House of Commons Health Committee early in 2010. It appears that the Medical Act 1983, particularly section 3, ⁵² reflects earlier advice from the European Commission to the effect that he GMC could not impose its own tests of competence and language. The UK complies with Directive 2005/36/EC by way of the 2004 Regulations. So responsibility for testing fell on Cornwall and Isles of Scilly PCT rather than the GMC. ⁵³ The method in this apparent madness, according to the Department of Health, is that a foreign doctor may work in, say, a research capacity, without needing the same command of English as a clinical role would require. It goes on to state that ‘language testing after registration would have to be proportionate and appropriate for the post's requirements’. ⁵⁴ In its evidence to the Health Committee, the GMC indicated that it had obtained legal advice from senior counsel to the effect that an amendment to section 3 of the Medical Act 1983 would be required to allow it to test proficiency and language skills. ⁵⁵

It is not possible that the GMC could have been liable under the Corporate Manslaughter and Corporate Homicide Act 2007. It is too remote from individual patients to justify finding a relevant duty of care and it could claim an exemption under section 3 of the Act for implementation of public policy. It is also difficult to see that any gross breach of duty could be established, or that any fault could be attached to its senior management on this point. Even if all of these objections were overcome, there would still be difficulty establishing causation.

It remains unsatisfactory, given the wording of the directives, that it is necessary to criticize other bodies for not carrying out assessments which the GMC states that it cannot legally do.

Implications for the future

To date, this paper has taken one medical disaster and discussed what liability might have existed had the 2007 Act been in force at the time. The way in which the Act operates may become important if mistakes are made in future which are similar to Dr Ubani's. A major feature of the Ubani affair is the division of responsibility between several corporate bodies, public and private. That state of affairs is likely to develop further following publication of the government's White Paper in 2010 ⁵⁶ and the subsequent Health and Social Care Bill. ⁵⁷ Proposals include abolition of PCTs and the transfer of commissioning to consortia of GPs. Patient choice is a key feature of the White Paper and it is stated that, with few exceptions, commissioners and patients may choose ‘any willing provider’. The proposals envisage improved quality control, including an enhanced role for the CQC. It remains to be seen whether the proposals will be implemented, and whether they are more successful than the various bodies involved in the Ubani affair. They do not address the issues around liability of the GPs involved in commissioning, which is regrettable.

The position of the GP commissioning consortia seems likely to be similar to that currently occupied by commissioning PCTs, i.e. Cambridgeshire in the Ubani affair. A decision to commission services of the nature described in the CQC report on TCN might well constitute a gross breach of a relevant duty of care, if the latter were to exist. However, it probably would not be found to exist, applying Farraj and A, plus section 3 of the Act.

It seems sensible to allow the GMC to assess the language and competence of doctors from outwith the UK before admitting them to its registers.

Conclusion: a medicolegal collusion of anonymity and legislation which is too convenient?

It is apparent, as argued above, that there may be a ‘collusion of anonymity’ operating in the provision of out-of-hours primary care medical services. It is also apparent that this gives rise to major potential problems in application of the Corporate Manslaughter and Corporate Homicide Act 2007 to fatal errors in the provision of these services. The fragmented nature of the corporate NHS in the example considered here makes it difficult to apply elements of the offence contained in the Act to any one of the corporate bodies involved. Whether this is by accident or design may be a matter of speculation.

Passage of the legislation took place at a time when the Labour government was promoting the use of a wider range of providers in the NHS, of which the ‘market testing’ discussed above was part. Such promotion seems likely to continue apace under the Coalition government. Not only might government policy help an argument for a ‘public policy’ exclusion of a relevant duty of care under section 3 of the Act, it might influence a jury to decide that that any breach of any duty by a corporate body was not gross; a body would probably not be found wanting by a jury if it could demonstrate that it was following government policy.

It appears that at a time when the government was actively fragmenting the provision of NHS services, it was also erecting a fresh set of barriers to make it difficult to establish corporate criminal liability for their worst mistakes. It seems that the current pattern of prosecuting individuals for manslaughter and their employers, if at all, for lesser crimes, such as health and safety offences, may not change even now that the 2007 Act is in force.