by Matthew Austin September-25-2023 in Commercial & Business, COVID-19
There have been recent press reports that care homes could face criminal prosecution arising from deaths that occurred within the homes during the COVID-19 pandemic. Understandably, this has caused considerable alarm amongst those in the industry who worked through an incredibly difficult and extended period of pressure, worry and distress.
It has been reported that commission of the common law criminal offence of gross negligence manslaughter is being investigated by An Garda Siochana and will be considered for prosecution by the Director of Public Prosecutions.
Gross negligence manslaughter is not a frequently prosecuted criminal offence. It was considered by the Law Reform Commission (LRC) in 2008. It occurs where the death arises from a negligent act or omission by the accused involving a high risk of substantial injury. The LRC cited, by way of example, the case of The People (DPP) v Cullagh (1998) manslaughter after a woman died when her chair became detached from a 20-year old chairoplane ride at the accused's funfair. The accused had bought the chairoplane after it had been in an open field for three years. Although the accused only became aware after the death that there was rust on the inside of the chairoplane which had caused the accident, he was found to have been aware of its generally decrepit state when he bought it. The accused was convicted of the offence of gross negligence manslaughter.
In the event that prosecutions do proceed in relation to deaths in care homes during the COVID-19 pandemic there will be a number of issues that will require determination including, whether prosecutions will be brought against corporate owners, directors of corporate owners or other individuals within the organisation. Another issue will be the degree to which the unprecedented public health challenge that the pandemic presented will be taken into account. Furthermore, it is possible that criminal prosecutions will beget subsequent civil claims by relatives of the deceased claiming compensation as a result of an alleged wrongful death. In the context of a civil claim the standard of proof to be met by a Plaintiff would be lower than that required for a successful criminal prosecution.
Nursing home providers who find themselves the subject of investigation should seek legal advice early, particularly in light of the potential for criminal charges being brought.
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About the Author
Matthew Austin
Matthew is a partner in the Commercial & Business team and has considerable expertise in a range of practice areas, having acted for Irish and International clients in domestic and multi-jurisdictional issues. Matthew has advised in civil and administrative law disputes and in regulatory and advisory matters including insolvency/restructuring, IP, defamation and media law, competition and consumer protection and data protection.