Covid Scotland: Care home bosses may face 'corporate homicide' charges

The figure is to the end of last month with most of the cases - 3904 - relating to people living in care homes with the deaths of 37 workers, 14 prisoners and 1033 others also under investigation.

A special Crown Office unit was set up in May 2020 after the Lord Advocate directed that Covid-19 or presumed Covid-19 deaths where the deceased might have contracted the virus in the course of their employment or where they were resident in a care home when they virus is contracted, should be reported to the service.

The Crown Office team of 18 staff, which includes nine lawyers, works closely with the police and the Health and Safety Executive to gather information and investigate these fatalities.

Academic experts and groups supporting victims' families say under the current legislation it would be possible for company bosses and care home owners to be prosecuted.

Professor Andrew Watterson, a public health expert at Stirling University, said: “Groups including trade unions and patient groups like Action for a Safe and Accountable People’s NHS in Scotland have rightly been pressing for thorough health and safety investigations of the many Covid deaths relating to workers and patients.

"Where there may be evidence of serious failings by employers and senior managers, inquiries under the Corporate Manslaughter and Corporate Homicide Act 2007 would be justified."

Mr Watterson added that investigations would be needed to be completed swiftly.

"Justice delayed is of course justice denied. Investigations of Covid deaths in care homes, hospitals and other workplaces will require sufficient staff and resources for thorough investigations to be conducted in a timely fashion," he said.

"This will be especially important because official figures on such deaths are just the tip of a much bigger iceberg and the relatives of all those who died in these settings deserve to know if those deaths could have been avoided by management and by effective regulation and inspection.”

Scottish Hazards, a charity which supports relatives of people who have died at work, is concerned because of the high volume of cases and small number of Crown Office staff working on the investigation, many families will not see justice done.

Ian Tasker, project worker at Scottish Hazards, said: "If the Crown Office believe a company or organisation does have a case to answer then they could be charged with corporate homicide in the most serious circumstances, say significant failings by a care home or employers.

"We know people have died as a result of contracting Covid at work. Every employer has a duty of care to the health and safety of their workers.

"However, we are not holding our breath. There has not been one prosecution for corporate homicide in the years that the law has been existence and we are talking over 200 work related deaths in that time in Scotland."

Mr Tasker added that if the companies escaped corporate homicide charges, they could face criminal prosecution under health and safety legislation.

A spokeswoman for Scottish Care, a body representative charity and private care homes, said the Crown Office investigations had put further strain on the sector which had been badly hit by the pandemic and was struggling to keep and recruit staff.

She referred The Herald to a statement made by Scottish Care last year about the Crown Office  and police probe into Covid deaths in homes, which is referred to as Operation Koper.

It said: "We recognise that police officers are undertaking investigations as a result of a direction from the Crown Office acting under the personal instruction of the Lord Advocate.

"Frontline staff and managers are spending huge amounts of time providing data and information for these investigations. This would be challenging at the best of times but in the middle of a pandemic and with dozens of care homes fighting active outbreaks this has added to a real sense of exhaustion, dismay and disappointment.

"It has been argued that the NHS is treated in the same way when there is an unexplained death and that this is just a new system for the care home sector to deal with. We totally reject that analysis. There is clear unequal treatment of the care home sector in this whole process. We are not aware of NHS staff being interviewed about every Covid death that takes place in a hospital even if patients have caught the virus which killed them when in an NHS setting and for unrelated reasons.

to nearly three dozen questions, to provide extensive personal records and files for patients, which are taking frontline staff away from their duties of care and support in the middle of a pandemic."

It added: "The operation from the Lord Advocate’s instructed Crown Office investigation has both in its timing, extent and unequal treatment of the care home sector caused considerable distress...We very much regret the Lord Advocate chose to treat the care home sector with this degree of disproportionate focus which has done little to enhance community assurance or indeed professional confidence.

"We believe these investigations are wholly disproportionate and are causing irreparable damage to the professional integrity of nurses and carers who are exhausted beyond measure in fighting the virus."

A CBI Scotland spokesman said: “The vast majority of businesses have gone above and beyond to keep their staff, customers and suppliers safe throughout the pandemic - and will continue to do so as we begin to fully reopen the Scottish economy.”

A spokesman for the Crown Office said: “The Crown Office and Procurator Fiscal Service (COPFS) has established a dedicated team to deal with reports of Covid-19 or presumed Covid-19 deaths in care homes or where the deceased may have contracted the virus in the course of their employment.

“The Covid Deaths Investigation Team (CDIT) receives and deals with those reports and will work with the relevant agencies to ensure that all necessary and appropriate enquiries are made as quickly as possible.”

Corporate homicide laws allow institutions and employers to be held responsible for the deaths of workers and people in their care. In some circumstances, the leaders of those organisations can be prosecuted.

Penalties include unlimited fines and publicity orders requiring the company to publicise that it has been convicted of the offence, giving the details, the amount of any fine imposed and the terms of any remedial order made.

Labour MSP Claire Baker introduced a Culpable Homicide (Scotland) Bill introduced in the Scottish Parliament in June 2020 to make it easier for companies to be prosecuted.

Baker argued that the current law required the prosecution to "identify the controlling mind of an organisation" and said that while this is possible in smaller organisations, it was practically very difficult to do so in larger organisations with layers of management.

She said that her proposals would "encourage safer working environments" for all employees and prevent work place deaths and should not be a burden to employers, as higher standards of safety should operate in companies.

However, the bill did not pass in January last year after it was opposed by the Scottish Government who argued it fell outwith the competency of the Scottish Parliament.

The Scottish Law Commission is currently examining the offence of homicide generally and is due to complete its work in 2023.

Meanwhile, Labour MSP Mark Griffin is hoping Holyrood will pass his bill proposing Covid-19 should be classified as an industrial disease entitling victims to more  financial support. Research has found frontline workers three times more likely to end up in hospital from the disease than those in other areas.

Labour's health spokeswoman Jackie Baillie said: “Every life lost to the pandemic is a tragedy, but for thousands of families the circumstances of their loved one’s deaths are unknown.

“Every family deserves answers over how and why their loved one died. It’s high time that Covid was treated as an industrial disease so that those affected get the support that they need and deserve.”