I note that it is intended that the provisions of the Bill will apply to NHS Trusts and that, in determining whether the failure of an organisation constituted conduct falling far below what can reasonably be expected, a jury must, in accordance with proposed Clause 3(2)(b)(iii), consider whether the Senior Managers of the organisation "sought to cause the organisation to profit from that failure" [to comply with health and safety legislation/guidance].

  As an NHS Trust does not seek to make a profit but simply provides health care on the basis of the funding allocations it receives, I do not see how it can be said Senior Managers of an NHS Trust "sought to cause the organisation to profit from that failure".

  In view of the above, I am uncertain as to how a successful prosecution could be brought against an NHS Trust under the proposed legislation, as it would appear to me that it could not be proved that the terms of proposed Clause 3(2)(b)(iii) had been breached.

  I should, therefore, very much welcome your comments and any further guidance on this particular issue which you are able to give.

18 April 2005