Bill C-45 – Criminal Negligence and Medical Malpractice

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New amendments to the Criminal Code of Canada (“Bill C-45”), effective March 31, 2004, have made it easier for hospitals, and persons directing work at hospitals, to be prosecuted for workplace injuries, or any other harm that a person may suffer at the hospital. Depending on how broadly the amendments are interpreted, harm could include, for example, medical malpractice and occupier’s liability (slip and falls).

Under the Criminal Code, every one is criminally negligent who, in doing anything, or, in omitting to do anything that is his (statutory) duty to do, shows wanton or reckless disregard for the lives or safety of other persons. Prior to Bill C-45, for a corporation to be found guilty of criminal negligence, its “directing mind” must have committed a prohibited act and had the necessary intent to commit it. An individual with governing authority, responsible for setting policy, was considered a “directing mind,” although ultimately this was to be determined by the Courts on a case by case basis. As a result of the difficult burden imposed on the Crown to prove a “directing mind”, prosecutions were few, and convictions even rarer.

The difficult burden established for criminal convictions with regard to workplace injuries was evident following the 1992 Westray mine explosion, which killed 26 workers. Although two managers were charged with criminal negligence in connection with the deaths, the charges were eventually withdrawn. However, as a result of the disaster, a judicial enquiry was called. The Richards Enquiry resulted in recommendations to increase criminal liability for lack of workplace safety, and directly led to the Bill C-45 amendments, which should make it easier to successfully prosecute both an “organization” and an individual for criminal negligence related to workplace injuries.

Bill C-45 amends the Criminal Code to:

  • Establish rules for attributing to organizations criminal liability for the acts of their representatives;
  • Establish a legal duty for all persons directing work to take reasonable steps to ensure the safety of workers and the public;
  • Set out factors for courts to consider when sentencing an organization; and
  • Provide optional conditions of probation that a court may impose on an organization.

Of utmost concern for the healthcare industry is that amendments may make it possible for the Crown to prosecute a hospital and its directors, officers, physicians and employees for criminal negligence, where a person or persons suffer bodily harm or death relating to circumstances where the hospital and person(s) knew (or ought to have known) that there was a danger to a patient and they “showed wanton and reckless disregard” for the patient’s safety. This potential criminal liability stems from the explicit duty established for those who undertake a task, or have the authority to direct how another person performs a task, to take reasonable steps to prevent bodily harm to any person arising from the work. A recent class action lawsuit contains allegations in the statement of claim, which if proved, would in our opinion clearly fall within the ambit of the Bill C-45 provisions.

As a result of the above risk, we believe hospital boards should take additional steps to protect themselves and staff from potential criminal prosecutions. Such steps should take into account the principles outlined in recent U.S. decisions (such as the Caremark decision) setting new standards for directors to ensure compliance with the law, and should expressly include the adoption of a Corporate Compliance and Ethics Committee.