How the Corporate Manslaughter Act could protect social workers

Can the long arm of the law succeed where hard-hitting media campaigns, government taskforces, expert reviews and £2m of public money have failed, and finally persuade social care employers to introduce effective protective measures to shield their staff from violence during working hours?

The question has been brought into sharp focus by the recent death of 47-year-old Lancashire community support worker and father of three, Philip Ellison who was stabbed while on a visit to a supported living scheme last month. Robert Searle, 51, has been charged with his murder.

Ellison’s name is now added to a tragic roll of social workers who have died while carrying out their duties. It was the death of Wandsworth social worker Jenny Morrison in 1998 that sparked Community Care’s No Fear campaign calling for social workers to be able to work without fear of violence or attacks. This culminated in the setting up of the National Task Force on Violence Against Social Care Staff which, in 2001, produced the A Safer Place report demanding action. The government accepted the report’s raft of recommendations and launched a £2m campaign with the target of reducing violence and abuse against social workers by 25% by March 2005. At which point the issue seems to have been promptly forgotten, although care minister Ivan Lewis recently defended the government’s record.

Today the position of social care workers who are expected to make visits alone, particularly domiciliary care workers, is as precarious as ever. A poll of Unison members in June 2004 revealed that 36% of lone workers experienced verbal or physical abuse on a daily basis.

Lone worker policies

When questioned about the existence of lone worker policies, almost a quarter said their organisation did not have a lone worker policy, with the same number saying that lone worker safety was not being addressed by their organisation. A further 35% said they didn’t have access to their organisation’s lone worker policy while 27% confirmed that staff did not have any risk management training at all.

Where an employer did have a lone worker safety mechanism in place, 54% said they did not have confidence in it.

In the same year, figures from the British Crime Survey by the Health and Safety Executive showed 849,000 reported incidents of threats and actual assaults each year. Within the NHS the problem has become so acute that £29m has been earmarked to equip lone workers with personal safety devices. Unfortunately no equivalent sum has been made available to social services staff.

“Thankfully, cases [such as the death of Philip Ellison] are extremely rare, but other forms of attack are not,” says Unison’s head of local government Heather Wakefield. “Time and again we have called on employers to provide proper risk assessments for their staff. Our members have a right to be made as safe as possible at work.”

There may, however, be one glimmer of hope on the horizon. In the interim between the deaths of Morrison and Ellison, an important change took place in the legal framework governing occupational deaths. On 6 April, the day before Ellison died, the Corporate Manslaughter and Corporate Homicide Act 2007 came into force.

There is no suggestion that Ellison’s employer, Lancashire Council, which is currently carrying out its own serious untoward incidents investigation with Lancashire Care Foundation Trust, has in any way infringed the new act.

New law adds muscle

Nevertheless, the legislation does add some considerable muscle to existing health and safety guidance. While before the act it was possible to prosecute a corporation for the common law offence of gross negligence manslaughter, this hardly ever happened as it was necessary to identify a single member of the senior management (or “controlling mind”) on whom to pin the blame. The new law means that prosecutions will be of the corporate body and not individuals. If a gross breach of health and safety standards results in the death of someone who is owed a duty of care, then the organisation will be liable to an unlimited fine and a publicity order requiring it to publicise details of its conviction. A remedial order may also be made to require the organisation to take steps to address the failures behind the death.

Public sector unions have welcomed the new act, although most would like to see it go further.

“The act needs to step up a gear and go further to protect workers,” says Unison health and safety officer Robert Baughn. “Individuals must be held responsible, so they can face a prison sentence if they are convicted of corporate manslaughter. We would also like to see wider sanctions such as corporate probation and the disqualification of directors to make this legislation more effective.”

But even without such individual responsibility, the senior management teams of any social services department, charity or private care organisation that employs social workers to work with potentially violent clients, will need to consider the act’s implications very carefully.

“All social care organisations will have to make sure they have the proper health and safety procedures in place and are carrying out full risk assessments to ensure they are protecting their employees and any other third parties to whom they owe a duty of care,” says Nadia Persaud, a personal injury specialist and senior associate at law firm Bevan Brittan.

“It’s also very important that they can show a full audit trail. If you are involved in a corporate manslaughter case then the jury is going to be poring over every aspect of your corporate culture. So it’s not good enough just to introduce risk assessment and risk management procedures. You also have to be able to show that you have done so.”

Sharp upturn

Persaud predicts that the new act will see a sharp upturn in the number of employers called to account over the deaths of their employees.

“Under the old civil law it was very difficult for large organisations to be prosecuted because you had to be able to identify one controlling mind. But under this new law the police and the CPS will be looking much more closely at work-related deaths because there is a much better chance of gaining a conviction. But it’s important to point out that the act only applies to gross failures. We are not talking just about negligence.”

And the act does not introduce any new health and safety standards. Rather, it will hold organisations to account against existing health and safety guidance. This is good news for social workers, especially those who find themselves expected to enter potentially dangerous situations on their own. In addition to guidance laid out by the National Task Force on Violence Against Social Care Staff (see panel), there is also explicit guidance for lone workers published by the Health and Safety Executive. This recommends that employers carry out risk assessment of the workplace and any threat of violence, offer specific health and safety training and use monitoring procedures such as telephone or radio contact, automatic warning devices and systematic checks to ensure that the lone worker has returned to base on completion of a task.

With the new act now in force, social care employers will ignore such recommendations at their peril.

● HSE guidance for lone workers

National Task Force on Violence checklist for social workers

Your employer must provide:

● A code of practice that fits your job and where you work.

● Clear assessments of the risk to you from the individuals, families and groups you work with.

● Clear procedures about what to do when you think there is a risk, what to do after an incident, and what follow-up there will be.

● Training that fits your job, including what responsibilities you have towards colleagues and to service users.

● A working environment that maximises your safety.

● Support in dealing with your concerns about threats, abuse and violence.

● Procedures for making sure precautions are working and can be reviewed.

● Easily available support after an incident that fits what you and others who were involved need to recover from the experience.