Our comments are made in the context of the Medical Defence Union's experience in assisting our medical and dental members with a range of medico-legal matters that, from time to time, can include allegations of manslaughter if patients die unexpectedly as a result of medical or dental treatment.

2.  SENIOR MANAGER

  We note the definition of a senior manager in 2(a) and (b) as a person who plays a significant role in making decisions about how the whole or a substantial part of an organisation's activities are to be managed or organised, or someone who manages the whole or a substantial part of those activities. We believe that the meaning of the terms "significant" and "substantial" are not entirely clear and may lead to confusion.

  It is not clear if the term "substantial part of its activities" relates to the actual amount of activity for which the manager is responsible, as a proportion of the activity undertaken by the company as a whole. For example, for it to be substantial, does the manager have to be responsible for managing more than 40 or 50 or 60% of the company's output? Or, is the measure to be used the relative importance of the work in terms of the company's reputation, or quality of work, or services produced; or all of these factors? Similarly is a manager to be judged as playing a significant role in terms of the size of decisions they make, for example in terms of financial expenditure; or is the significance of what a manager does to be judged in the context of decisions which relate to matters which are important to a company for other reasons and, if so, what sort of reasons?

  It is our view that the terms "significant" and "substantial" are rather wide and we believe that the definitions as they stand may lead to confusion.

  To put our comments in context, a number of our members are clinical managers with responsibility for the delivery of clinical services within particular areas in the NHS. As such, they will not be Board members and are responsible only for managing their particular area. However, the decisions they take may have considerable consequences for patients' health and safety. If the terms "significant and substantial" are defined merely in the context of the "size" of the manager's responsibility in relation to the rest of the organisation, it would seem that these clinical managers would escape the definition of senior managers. By using this example, we are not seeking an answer to the question of whether clinical managers would be caught by the definitions, but are trying to illustrate our view that the definitions should be clearer to avoid misunderstanding.

9.  TRANSFER OF FUNCTIONS

  This section applies to the transfer of functions in respect of Crown bodies. It does not, however, address the question of transfer of functions in respect of other bodies corporate. For example, if one company that is subject to proceedings for an offence under the Act is taken over by another company, does the prosecution of the original company fall away, or does the prosecution transfer to the purchasing company that has assumed the functions that are the subject of the prosecution? A similar question arises in respect of a merger in which certain functions of one company that is subject to prosecution may be merged with another company.

25 July 2005