Key takeaways
New duty to prevent critical harm
Clarifies accountability for public office holders.
Applies to health and social care roles
Includes NHS, local authorities, and contracted providers.
High bar for breach and severe penalties
Only serious failures risk prosecution and up to 14 years.
In this article we look at the proposals under the Public Office (Accountability) Bill, or “Hillsborough Law”, for a new duty to “prevent death or serious injury” and how this could impact health and social care providers.
Current law
The current common law offence of misconduct in public office is committed when a public official:
wilfully neglects to perform their duty or
acts improperly
sufficient to amount to an abuse of the public’s trust in that office
without reasonable excuse
On 4 December 2020, the Law Commission published a report about this offence, calling it “one of the most notoriously difficult offences to define”. Recommendations were made that the offence required greater clarity about who it applies to and what type of conduct it captures.
Reforming the law
The Bill will replace misconduct in public office with two new statutory offences:
Seriously improper conduct; and
Breach of duty to prevent death or serious injury
A breach of duty to prevent death or serious injury is committed when someone acting in their capacity as a holder of a public office intentionally or recklessly causes actual (or creates a significant risk of) critical harm (defined as death or grievous bodily harm) to another person.
Critical harm does not have to materialise to trigger the offence; creating a significant risk of critical harm will be sufficient.
Who does it apply to?
The Bill defines a holder of public office as including those working in the NHS or local authority. We take the view that this will probably extend to private healthcare providers undertaking contracts commissioned by a public authority.
This offence can only be committed someone who, by virtue of their role, is:
under a duty to prevent critical harm to others, and
who knows or ought to know that they are under such a duty.
There will be a defence if the public office holder can show that they had a reasonable excuse for their actions.
What type of conduct does it apply to?
So far, the draft provisions do not define this. To “breach” this duty however will require a high bar.
The actions of a public office holder must fall, “far below what could reasonably be expected of the person in the circumstances”. The Government Bill fact sheet says honest mistakes, or finely balanced operational decisions, made in challenging circumstances will not be captured.
As we have said in earlier articles, one of the key aims is to make sure that the provisions of the new law have “bite”. Penalties will be severe, and this offence is no different. It will carry a maximum sentence of 14 years’ imprisonment. Although, to ensure that only the most serious cases are prosecuted (and to avoid vexatious private prosecutions), such action will require the consent of the Director of Public Prosecutions.
Conclusion
In our view, the proposed Duty to prevent death or serious injury largely puts the existing common law on a statutory footing and clarifies its scope and application. It is not seeking to criminalise honest mistakes or acutely difficult operational decisions. It is there to hold those involved personally criminally accountable in appropriately serious cases, where their actions (or indeed inaction) amounts to a breach of duty to prevent death or serious injury.
Keep an eye out for our upcoming articles on this Bill, there is so much more to discuss!
