Nearly all criminal prosecutions are brought against employers. However, there are some cases where an OH professional may be prosecuted under health and safety legislation, or for manslaughter. This will be very exceptional in practice.
Health and safety legislation
Under s.7 Health and Safety at Work etc Act 1974 (HSW Act), an employee while at work must take reasonable care for himself and for other persons who may be affected by his acts and omissions.
Also under s.36 HSW Act, if an offence committed by an employer (for example) is due to the act or default of some other person, the other person is guilty of an offence.
R v Lockwood (2001), Crown Court (Stafford)
An incompetent occupational hygienist was held guilty of an offence because he negligently advised the employer that the level of airborne wood dust in a factory was within the statutory limits, when it exceeded them. He was fined £1000 and ordered to pay £2000 costs.
Lockwood was a prosecution under s.36. S.7 would not apply here as he was an independent consultant, not an employee. Also HSE did not prosecute the employer in this case as it had reasonably relied on the consultant’s advice.
R v Hooper (2004)
A negligent health and safety consultant was fined £3000 plus £750 costs for carrying out an inadequate risk assessment of a woodworking machine. This had led to an employee losing part of a finger. The employer was also prosecuted and fined.
The main punishment would probably not be the fine itself but having a criminal record under the HSW Act.
Under s.3, employers are obliged to ensure so far as is reasonably practicable that non-employees are not exposed to risks to their health or safety. (S.2 imposes a duty in respect of employees.) Under s.37 a director, manager or other officer can be personally liable for offences of the company under health and safety legislation, including s.3, if the offence was committed with his or her consent or connivance, or attributable to his or her neglect. S.3 has been held to apply to an OH provider company:
R v Audio Medical Services, 2012, Bodmin Magistrates
Both the company and the managing director were fined because they were providing health surveillance for work with vibrating tools but employing unqualified nurses to do it, therefore putting employees of clients at risk.
This can apply where gross negligence of the doctor or nurse causes a death. However an OH practitioner is not very much at risk of a manslaughter prosecution. The negligence must go beyond being a matter of compensation and have shown such disregard for the life and safety of others as amount to a crime against the State and conduct deserving punishment.
In Rose v R, the Court of Appeal held an optometrist should not be held guilty of manslaughter on the basis of evidence she had not seen, even though her failure to look was a breach of her civil law duty in negligence. The court also said that to be guilty of manslaughter the circumstances of the breach must be ‘truly exceptionally bad’:
Honey Maria Rose v R, Court of Appeal, 2017 www.bailii.org/ew/cases/EWCA/Crim/2017/1168.html .
In a routine eye inspection at Boots, the optometrist failed to notice that a seven year old boy had swollen optic disks. An optical consultant/assistant had taken retinal images which clearly showed a problem. However the optometrist seems to have looked at different images by mistake, perhaps of another patient. The boy died five months later of hydrocephalus (excessive accumulation of fluid in the brain). This could have been treated had the optometrist referred him to a doctor as she should have done.
She was held not guilty of manslaughter. It had to be reasonably foreseeable that her breach of duty gave rise to a serious and obvious risk of death. The trial court had considered one should take into account what a reasonable person in her position would have known but for her breach of duty, ie had she looked at the correct image from which the serious risk was evident. The Court of Appeal disagreed. It said that whether there was a serious and obvious risk of death must be assessed on her knowledge at the time of the breach of duty. Otherwise doctors would be guilty of gross negligence manslaughter by reason of negligent omissions to carry out routine eye, blood and other tests which in fact would have revealed fatal conditions, notwithstanding that the circumstances were such that it was not reasonably foreseeable that failure to carry out such tests would carry an obvious and serious risk of death.
The Court of Appeal at paragraph 77 of the judgment set out five elements that must be proved for gross negligence manslaughter, including that the circumstances of the breach were ‘truly exceptionally bad’.
The court said it was not, in any sense, condoning the high level of negligence that the jury must have found in this case. However the serious breach of duty was a matter for her regulator.
The optometrist in Rose, or her employer vicariously, would very likely be liable to compensate the parents in a civil action for negligence, though the amount of damages is limited by statute.
Two examples of cases where there was held to be manslaughter:
R v Adomako, House of Lords, 1994 www.bailii.org/uk/cases/UKHL/1994/6.html
An anaesthetist assisting at an eye operation failed to notice the disconnection for six minutes of the tube from the ventilator supplying oxygen. The patient suffered a cardiac arrest and died. Expert witnesses described the conduct of the defendant as abysmal. The House of Lords held that he had been rightly convicted of manslaughter.
R v Wacker, Court of Appeal, 2002 www.bailii.org/ew/cases/EWCA/Crim/2002/1944.html
A lorry driver had killed 58 illegal immigrants whom he was smuggling into the UK. Wacker closed the single ventilation hole from the back of his lorry, where they were hiding, thus causing them to suffocate. The defence that the victims were themselves acting illegally was held not to excuse his conduct. He was rightly convicted of manslaughter.
Corporate manslaughter is different. Despite wide-spread misconceptions to the contrary, an individual cannot be prosecuted for corporate manslaughter, It only applies to companies and certain other types of body. Corporate manslaughter is an offence created by statute, the Corporate Manslaughter and Corporate Homicide Act 2007, whereas manslaughter is a common law offence developed by the courts.
Journal article by Diana Kloss, 2019: Manslaughter at work: an update on the common and statute law, Expert witness, Occupational Health at Work October/November 2019 (vol. 16/3) pp35-36. Also includes corporate manslaughter.