Managing serious incidents and fatal accidents - November 2016, Birmingham

Managing serious incidents and fatal accidents

November 2016, Birmingham

Managing investigations…

Stephanie McGarryRachel Lyne

Points to cover• To consider why it is vital to

• Manage our various duties• Manage the investigation if we don’t comply

• To identify common themes in the investigations andprosecutions

• To identify potential areas of weakness within theorganisation

• To review the various elements of investigations

• To consider the legal consequences of failures for both thebusiness and the individual

• To identify a way forward

Who can investigate?

• Police – Criminal and Coroner’s Officers• Health and Safety Executive• Environmental Health / Trading Standards• Care Quality Commission• Fire Authority• OFSTED• Financial Conduct Authority• HM Revenue and Customs• Gangmasters Licensing Authority

Legal reasons to manage duties

• You have to! E.g. RIDDOR, Duty of Candour, FSA• Failing which

– FFI– Enforcement Notice– Suspension / Conditions /Cancellation of registration or

authorisations– Prosecution

Sentence Reputation

Economic reasons to manageduties• 2013/14-workplace injury (including fatalities) cost

£4.9 billion• In 2014/15 - 4.1 million due to workplace injuries.

Moral reasons

Common themes in breaches ofduty• Lack of or poor risk assessment• Ineffective monitoring/supervision• Failure to adequately train staff• An unjustified acceptance that what is in place is

both– Best practice, and– Being followed in practice

Judge’s comments in recentprosecutions of major company

• Do any of these comments ring alarm bells with you?

– “It is accepted by the defendant that he (the injured person) should

have been supervised to ensure that no bad habits evolved”

– “The company’s failure was a failure to supervise a trusted and

experienced employee (the person who was supposed to be looking

after the injured person)”

– “Monitoring was crucial as it was known that employees make mistakes.

Monitoring and supervision were so important here due to the

circumstances. The risk of explosion were small, but the risk to human

safety was great.”

Where companies often fail

• Poor training of front line workers, especially in criticalroles

• Procedures and systems not followed by front line staff andjunior management

• Poor management of regulatory compliance at theoperational level

• Middle managers telling senior managers what they want tohear

• Poor communication with staff and contractors

Where companies often fail

• Inadequate monitoring of performance, or notproportionate to the risks being managed

• Senior management making decisions on incomplete/wronginformation that affect regulatory compliance (e.g. budgetsand resources)

• Failing to formally close actions

• Not learning from experience

Do you have any of these Achillesheel(s)?

• Inherently hazardous business

• Multi-site operations

• Contractors

• Multiplicity of regulatory requirements

• Number of employees

• Transformation projects

What happens if things go wrong?

• Who and what might be involved :– Police– HSE / other regulators– Coroner– Claimants– Insurers– Third parties i.e. press / FOI– Internal investigations – Serious Untoward Incident– Professional bodies– Disciplinary investigation– Serious case review

Managing a criminal investigation

• Early steps :– RIDDOR / Reporting to other regulators– Police primacy – other regulators support– Taking witness statements – Section 9 CJA 1967- legal support

ie comment on policies– Seizure of documents – PACE 1984– Compulsory powers – Section 20 HSWA 1974 and equivalent– Arrest– MANAGED CO-OPERATION


Data Protection Act

• DPA 1998– Personal Data– Reasonableness of request– Consent– Exemptions– Section 29 DPA – crime exemption gateway only– Disclose only as necessary / proportionate– Subject Access Requests – redaction– Confidentiality GMC / NMC guidance


• Immediate Practical Steps– Act quickly– Identify Inspector and Supervisor from regulator– Appoint suitable person within organisation to liaise and

coordinate– Log all documents submitted– Support / inform and expect vice versa from staff – subject to

conflict– Set up proper information sharing in your organisation– Taking early legal advice – NB conflict– Notify insurers– Instruction of expert


• Who will they want to speak to?– Witnesses to incident– Junior staff re culture– Those with a responsibility for regulatory

compliance, management or policy development– Senior managers operational and non operational– Third parties i.e. sub contractors, consultants,

clients


• What documents might they want?– Regulatory policies– Policies relating to incident– Training records and qualifications of staff– Training and risk assessment policies– Relevant risk assessments and method statements


– Personnel files including disciplinary– Safe working practices– Induction documentation– Board minutes– Minutes of Committee meetings e.g. H&S / environmental– Maintenance policy– Certifications relating to equipment– Internal investigation report / SUI and supporting

documentation – privilege?


• Non-privileged incident report– Duty of candour – SUI / serious case review?– Remit / scope– Author– Draft / unsigned– Advice– Action plan– Distribution


• Privileged incident report– Author / recipients / draft– Legal privilege?– Prepared for the purposes of legal advice and in

contemplation of litigation– Methods


• Disclosure to Police / regulator– Consent– Police powers – NB excluded material– Duties under DPA 1998– Is the request reasonable?– The right person to give the statement – drawn into

proceedings– Keep good record


• Third party request for information– Who might ask

Family – what is appropriate when Local organisations Press Members of public Employees

– Relevant law Freedom Of Information Act – exemptions? Data Protection Act


• Support of witnesses / suspects– Witnesses

Union rep Union solicitors Trust solicitors Independent solicitors

– Suspects Union solicitors Independent solicitors Financing


• Interview under caution• May be conducted by Police and / or other regulator• “Where a person is suspected of having committed an

offence”• Tape recorded or contemporaneous notes or evidence

obtained during questioning admissible in criminalproceedings

• Legal rep / conflict


• Taking advice– Legal advice

Law Society guidance – employer / employee Request for documentation by Police / Regulators /

third parties Advising the Board Addressing conflict Internal investigation


– Expert advice Examination of equipment Cause of death Cause of accident ie engineer Health and safety / care given expert opinion

– Others Crisis management Public relations /perceptions


• Publicity/ Perception– At all stages– Continuity required– Press release for specific occasions?

Incident Inquest Decision to prosecute Dismissal of staff Verdict in prosecution

Civil Claims - Investigations

Collaborationand

Efficiencies

Policy Cover

Liabilitydecision

Rehab andQuantum

Experts -Network

Inquests

When must the Coroner investigate a death?• Death is violent or unnatural (including death due to self harm)• The cause is unknown• Death in custody or state detention

What is the purpose of an inquest?

• Fact finding exercise– It is not a trial / purpose is not to apportion blame but…– It may feel like it during the inquest…!

• Four key questions– Who the deceased was?– How, when and where the deceased died?– NB: Article 2 provisions – “how and in what circumstances”

• Conclusions and liability [s10(2) CJA 2009 /old rule 42]– “No conclusion shall be framed in such a way as to appear to determine any

question of:1. Criminal liability on the part of a named person, or2. Civil liability’’

Inquest pathway

• Coroner opens inquest shortly after death• Coroner’s Officer collates evidence• Pre-inquest reviews (PIR) in complex cases

– Includes written / oral submissions on jury / Article 2 / witnesses / disclosure• Coroner’s Officer swears in jury (if applicable)• Coroner sums up/directs jury

– Includes written / oral submissions on conclusion• Conclusion / completion of inquisition form

• Support those attending• Impact on other aspects of case• PFD

Prosecution

• Health & Safety Prosecutions (2014/15)– HSE 650 cases and LA 78 cases– HSE conviction rate 86% and LA conviction rate 93%

• CQC – first prosecution – failing to provide safe care - £190,000fine and £16,000 towards costs

• EA – August 2015 – breach of all 3 waste regulations - £45, 500 fineand £9,000 costs

• Food Safety – January 2016 - 99p Stores Ltd fined over £400,000 forrat infestation

• Fire Authority – February 2016 – fatal fire in residential tower block- £40,000 fine and £23,000 costs (not-for-profit organisation)

Company prosecution• Health and Safety at Work Act 1974, section 2

– It shall be the duty of every employer to ensure, so far as isreasonably practicable, the health, safety and welfare at work ofall his employees.

• Health and Safety at Work Act 1974, section 3– It shall be the duty of every employer to conduct his undertaking

in such a way as to ensure, so far as is reasonably practicable,that persons not in his employment who may be affected therebyare not thereby exposed to risks to their health or safety

• Similar in other regulatory provisions

Section 7 and 37 HASAWA

• It shall be the duty of every employee while at work totake reasonable care for the health and safety ofhimself and of other persons who may be affected byhis acts or omissions at work (section 7)

• Director, manager, secretary or other similar officer -the offence was committed by the company with theconsent of, connivance of or to have been attributableto the neglect of those persons (section 37)

• Similar in other regulatory provisions

HSE/Regulatory Guidance

• General Enforcement Policy

• Enforcement Policy Statement requires Inspectorsto identify and prosecute individuals wherewarranted

Prosecuting Individuals

• E.g. HSE Operational Circular 130/8– "In general, prosecuting individuals will be

warranted where there are substantial failings bythem, such as where they have shown wilful orreckless disregard for health and safetyrequirements, or there has been a deliberate act oromission that seriously imperilled theirhealth/safety of others"

If prosecuted

• Defend or mitigate?

• Basis of Plea– Important document– Different to any response to the case summary– Keep it clear and concise

Sentencing guidelines

• Sentencing guidelines - health and safetyoffences, corporate manslaughter and foodsafety and hygiene offences guidelines

• Environmental Offences - Definitive Guidelinefor the sentencing of environmental offences.

Sentencing guidelines - health and safetyoffences, corporate manslaughter and foodsafety and hygiene offences guidelines

• When?– Sentenced on or after 1 February 2016– “Regardless of the date of the offence”


• What?– Applies to health and safety and food safety

breaches and Corporate Manslaughter– In practice also used in other regulatory

prosecutions– The Guidance provides a series of fine ranges for

offences with starting points within each range– There is then adjustment up or down from this

starting point within the given range


• How?• Step 1

– Determine offence category based on culpability andRISK of harm

– Culpability has four ranges from “very high” to“low”

– Harm is based on seriousness and likelihood

Still step 1

• Court then considers– Whether the offence exposed a number of workers

or members of the public to the risk of harm– Whether the offence was a significant cause of

actual harm• If one or both of these factors apply the court must

consider either moving up a harm category orsubstantially moving up within the category range atstep two

Step 2

• Starting point and category range– the court is required to focus on the organisation’s

annual turnover or equivalent to reach a startingpoint for a fine.

– The court should then consider further adjustmentwithin the category range for aggravating andmitigating features.

Turnover• Micro: Turnover not more than £2million• Small: Turnover between £2 million and £10 million• Medium: Turnover between £10 million and £50

million• Large: £50 million and over• If an organisation's turnover very greatly exceeds the

threshold for large companies then it may benecessary to move outside the suggested range toachieve a proportionate sentence.

Very high culpability

Then….adjustment

• Factors increasing seriousness include– Previous convictions, having regard to a) the nature

of the offence to which the conviction relates andits relevance to the current offence; and b) the timethat has elapsed since the conviction

– Cost-cutting at the expense of safety– Deliberate concealment of illegal nature of activity– Poor health and safety record

• Factors reducing seriousness or reflectingmitigation– No previous convictions or no relevant/recent

convictions– Evidence of steps taken voluntarily to remedy

problem– High level of co-operation with the investigation,

beyond that which will always be expected– Good health and safety record– Effective health and safety procedures in place– Self-reporting, co-operation and acceptance of

responsibility

Step 3

• Check whether the proposed fine based onturnover is proportionate to the overall meansof the offender

Step 3

• “The fine must reflect the seriousness of the offenceand the court must take into account the financialcircumstances of the offender.

• The level of fine should reflect the extent to which theoffender fell below the required standard. The fineshould meet, in a fair and proportionate way, theobjectives of punishment, deterrence and the removalof gain derived through the commission of the offence;it should not be cheaper to offend than to take theappropriate precautions.”

Step 3

• “The fine must be sufficiently substantial to have a realeconomic impact which will bring home to bothmanagement and shareholders the need to comply withhealth and safety legislation”

Step 4• The court should consider any wider impacts of the

fine within the organisation or on innocent thirdparties; such as– the fine impairs offender’s ability to make

restitution to victims;– impact of the fine on offender’s ability to improve

conditions in the organisation to comply with thelaw;

– impact of the fine on employment of staff, serviceusers, customers and local economy (but notshareholders or directors).

• Step 5– Consider any factors which indicate a reduction,

such as assistance to the prosecution

• Step 6– Reduction for guilty pleas

• Step 7– Compensation and remediation

• Step 8– Totality principle

• Step 9– Reasons

Other consequences

•Publicity Orders

•Remedial Orders

•Indirect financial/commercial consequences• Management time/Absences• Insurance premiums/uninsured losses• Tendering disadvantages• REPUTATION

Proactive Health & SafetyManagement• Leading Health and Safety at Work : actions for Directors, Board

members, business owners and organisations of all sizes –www.hse.gov.uk/ leadership

• Essential Principles• 4 point agenda to implement above

– Plan– Do– Check– Act

What do companies need to do?

• Review regulatory policies, systems and procedures• Keep up to date with regulatory legislation and guidance

applicable to the business• Consider industry standards - establish what benchmarks

should be applied. Legal compliance should be viewed asa minimum standard.

• Ensure risk assessments are kept completely up to dateand reviewed when circumstances change.

• Determine who would be considered to fall within thedefinition of “senior management” and ensure theircompetence for that role.

What do companies need to do?• Review the company’s “culture” – not just the official documents,

policies and procedures but what happens “on the ground”, and howprocedures are enforced. Effective compliance measures will becrucial.

• Ensure the Board is involved in the process and is promotingregulatory compliance

• Protect employees by telling them about regulatory issues thataffect them

• Check what insurance cover is in place

• Enforce compliance i.e. disciplinary

What do companies need to do?

• Protocol for regulatory investigation– Outlines a plan– Identify key parties internally /contacts externally– Set out regulators powers– Framework for what investigation involves– Key steps to consider

Key Points

• Be informed• Act swiftly to avoid prejudice• Early legal advice – before the event?• Be prepared for conflict and have a plan to manage

internally• Be prepared for each stage• Manage regulatory compliance

Speak to us…

Rachel Lyne| 0121 237 [email protected]

Stephanie McGarry| 0115 908 [email protected]

Date post:	16-Apr-2017
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