The Case of Lucy Letby: The Role of Societal Perceptions and The Responsibility of Corporate Manslaughter Legislation in Preventing Future Medical Crimes

Many consider the notion of serial killers as one native to the United States- popularised through our tv screens, which depict sordid individuals with a lustful desire to kill for no motive other than their own enjoyment. Such perceptions of the serial killer, undoubtedly influenced to some degree by film media have shaped serial killer discourse within the real world; now these killers are ‘raised to celebrity status’.[1] As a result, prolific serial killers can generate an unsavoury fanbase, obsessed with dissecting details of the gruesome murders; comparable to that of a celebrity. Such fascination with these individuals is not, however, reserved purely to that of 1970s US killers. The infamous tales of Jack the Ripper, for instance, could almost be considered folklore, attracting tourism to Whitechapel, from across the globe. As a result, the consensus regarding the typical profile of a serial killer is one associated with ‘heterosexual white masculinity’,[2] targeting innocent vulnerable people to invoke some form of degenerate power over their victims.

In recent years, the consideration of Lucy Letby as Britain’s most prolific serial killer in modern history,  negates all previous efforts to establish a common serial killer profile. Such profiles, highlighted through film media, seem to entirely discount the notion of gender in acting as a tool to advance the reign of terror serial killers typically tend to perform. As a result, it can be argued that society’s preconceived notions of what a serial killer ‘looks like’ contributed significantly to the duration of Letby’s murderous rampage within the neonatal ward. This allowed her to remain undetected and unquestioned by senior staff members at Countess of Chester Hospital and undoubtedly played a role in the inhibition of justice for Letby’s victims. This article therefore examines this concept, whilst also considering how well the law is equipped to deal with such cases in healthcare.

In the sentencing remarks of R v Lucy Letby,[3] Mr Justice Gross commented that Letby’s actions during her time as a neonatal nurse were ‘completely contrary to the normal human instincts’,[4] culminating in charges of eight counts of murder and ten counts of attempted murder. Based on the insurmountable amount of evidence presented at trial, it was inevitable that these grotesque charges would culminate in a sentence of life imprisonment with a whole life order’[5], despite her pleas at trial, that ‘hurting a baby is completely against everything being a nurse is'.[6] Regardless of this, Letby maintains her innocence; the refusal to show up to her sentencing hearing could arguably be considered a final act of protest in a plea to demonstrate innocence. For the media however, such defiance culminated in indigestible anger at her cowardice, and her demonstration of disrespect to the families of her victims present that day. The outrage felt by the media was simultaneously felt within the UK government. It has since opted to make attendance of hearings mandatory in cases of life imprisonment, with additional powers granted to judges to increase sentences by two years for cases of repeated resistance. Whilst some may argue that this additional penalty punishes criminals for what is essentially not a crime, it must alternatively be considered that, through enshrining this reform in law, judges are able to enforce an additional layer of justice. The criminal is thereby forced to listen to the consequences of their actions, and their subsequent impact on society, providing a final platform to exhibit some degree of remorse. As a result, it can be argued that justice is made more accessible and direct, offering closure to the victims’ families. In the case of Letby, through evading her sentencing hearing, she inadvertently prolongs the suffering and angst of her victim’s families.

Letby’s inability to demonstrate remorse, evidenced through her lack of appearance at the sentencing hearing, is not an uncommon trait of serial killers. However, regarding the standardised perceptions the average person has of serial killers, this is arguably where the similarities end. It is widely understood that ‘no single factor or motive explains why so many people kill’[7], and without an in-depth psychological evaluation of the inner workings of Letby’s mind, understanding of her true motives may never be reached. A multitude of theories exist to try and understand what influences serial killers’ homicidal tendencies; most notably the ecological model, proposed by Leenaars[8], in which factors such as relationships, communities, and greater society influence homicidal tendencies. Whilst mapping theories of influence is beneficial from a psychological viewpoint, to enact legal and systematic change, ensuring failings are corrected, emphasis should arguably be placed on rectifying the oversight which allowed such murders to occur in the first place.

Following the Letby murders, there have been desperate calls for reform, particularly when it comes to screening medical practitioners, and continuous checking of medical records, considering that the ‘history of malpractice’[9] under Letby contributed greatly to her murderous regime. To assist change in this regard, it is important to examine exactly how the culture of medical practitioners inevitably contributed to the tragedy. First, it is important to consider the implications of a no-blame culture within the medical field. The recent COVID-19 pandemic emphasised exactly how much pressure is placed on NHS staff, working tiresome long shifts in short-staffed wards and therefore, the average person can sympathise with the fact that human error within the medical field is inevitable. However, as a result, it is not entirely unexpected that Letby was able to evade prosecution and repercussions for as long as she did. This was simultaneously exacerbated by a culture of no-blame, which therefore implies that ‘the possibility of individual accountability is considered ‘off grounds’’.[10] Despite extreme cases of medical malpractice thankfully being exceptionally rare, ultimately, the case of Letby implies there is an inherent danger in assuming every medical professional is ‘good-be it morally’.[11] and can perform their duty of care adequately. Whilst this may set a dangerous precedent of an absence of trust in patients regarding medical professionals, solutions to the issue appear long-term. This brings into question the significance of whistleblowing in contributing to both short, and long-term change.

Since 2015 there have been three separate inquiries into NHS maternity services: Morecambe Bay, Shrewsbury and Telford, and East Kent NHS trusts.[12] Such inquiries indicate several common findings which contributed significantly to the staff failings; most notably, ‘poor workplace culture.’[13] It can therefore be concluded that following the Letby case, the Countess of Chester Hospital is no different; poor systematic monitoring of ‘neonatal outcomes’[14] made it harder to instigate investigations into individuals in the workplace. Despite whistleblower protection under the Public Interest Disclosure Act 1998[15] the NHS can ultimately be considered ‘a pawn in the political area’,[16] heralding a movement away from accountability, but exclusively no-blame. This, combined with fear of the repercussions associated with being a whistleblower-evidenced through the sacking of the existing staff for raising alarms regarding Letby, culminate in a culture which does not encourage systematic change.

In cases of such prolific serial killing, many would argue that the only place to allocate blame is on the serial killer themselves, regardless of any potential mitigating factors. However, particularly when dealing with medical serial killers, in combination with the previous investigations into the failings of other maternity wards, it becomes clear that such atrocities do not occur in a vacuum. Senior management within Countess of Chester hospital have questions to answer in relation to potentially aiding Letby in carrying out the murders on her neonatal ward, and thus should face some degree of criminal repercussions under the Corporate Manslaughter and Corporate Homicide Act 2007.[17] Section 1 defines the offence under the act, as an organisation, of which ‘its activities are managed or organised, causes a person’s death and amounts to gross breach of a relevant duty of care owed’.[18] Through examining evidence which would indicate senior management breached their duty of care- ignoring the concerns raised over the years regarding Letby’s professional conduct, a case of corporate liability begins to emerge. Whilst this may seem obvious, corporate liability-particularly within healthcare, is extremely complex, as doctrines enshrined in law are designed to protect corporations from prosecution. One such doctrine designed to do this is the identification doctrine.[19] Critics of such doctrine emphasise the fact that prosecutions against large organisations are ‘doomed to fail’[20] through the reliance on a singular ‘controlling mind of the enterprise’[21] for successful conviction- in the case of Letby, a neonatal nurse, she arguably holds the entire responsibility for the deaths which occurred, and thus, prosecution is unlikely.

As seen in HL Bolton Engineering Co. Ltd v TJ Graham and Sons Ltd,[22] courts often view corporations as fictitious; unable to serve actual time in prison, so the extent of the punishment served can only be that of a fine. Lord Denning states, ‘the state of mind of these managers is the state of mind of the company and is treated by the law as such.’[23] Whilst this seemed to be the law pre the instigation of the 2007 act,[24] which was arguably designed to increase the liability of corporations, caselaw dictates that successful prosecutions under the act are rare. Regardless, it is clear based on the evidence that the senior management working at the time of Letby’s murders failed in their duty of care-but the likelihood of a jury finding that such a breach was ‘gross’ and directly led to the death of the babies, is arguably nullified.

Whilst a charge of corporate manslaughter against the Countess of Cheshire Hospital may do very little regarding punishing the institution, one may argue that such a show of responsibility and accountability made by the courts is the first stage in instigating ‘meaningful organisational change.’[25] Thankfully, although instances of medical serial killing; like that of Letby are rare, this article emphasises the fact a statutory inquiry into the case is required immediately. Whilst it may be argued that Letby lacked traits of a notorious serial killer, which allowed her to go undetected for so long, the scale of such atrocities was undoubtedly the result of a multitude of factors. Understanding Letby’s motives in this regard seems entirely irrelevant to the solution. Rather, focus should be placed on changing the culture of medical staff responsibility and altering the law to ensure greater accountability of management, to instil greater trust in such medical care. The Corporate Manslaughter and Corporate homicide act 2007,[26] whilst intended to further corporate responsibility, has had very little impact, regarding the healthcare system (with no successful prosecutions taking place under the act so far). This is evidence that ultimately, the law is unequipped to deal with such cases of medical care malpractice, and therefore legislative reform is desperately needed.

References:

[1]Kimberly Tyrrell, ‘The Serial Killer in Cinema’ (2001) 26(6)  Alternative Law Journal, 274, 274

[2]ibid

[3] R v Letby [2023] (CH) (Sentencing remarks).

[4] ibid, p.2

[5] ibid, p.10

[6] ibid, p.2

[7] D.T Dogra, A. Anroon Leenaars, and others, ‘A Psychological Profile of a Serial Killer: A Case Report’ (2012) Vol.65(4), OMEGA-Journal of Death and Dying, 301, 301-2

[8]ibid

[9] The Lancet, ‘The Lucy Letby Case: Lessons for Health Systems’ (2023) 402(10404) The Lancet Medical Journal (British edition), 747, 747

[10] Mathew, Rammya, ‘Lucy Letby and the Limits of a No Blame Culture’ [2023] 382 BMJ 1966, 1966.

[11] ibid, p.1966

[12] Juliet Dobson, ‘We Owe the Families Affected by Letby Meaningful Organisational Change’ [2023] 382 BMJ, 1986, 1986

[13]ibid

[14] ibid

[15] Public Interest Disclosure Act 1998

[16] Daljit Kaur Hothi, ‘Challenges to Improving Patient Safety in the NHS  (2004) 9(3) Clinical Governance, 143, 144

[17] Corporate Manslaughter and Corporate Homicide Act 2007

[18] ibid,  s 1(1)(a)(b)

[19] Janet Loveless, Mischa Allen and Caroline Derry, Complete Criminal Law: Text, Cases and Materials (8th edn, OUP, 2022) 26

[20] Claire Dyer, ‘New Law puts NHS Trusts at Risk of Charges of Corporate Manslaughter’ [2008] 336 BMJ, 741, 741

[21] ibid

[22] HL Bolton Engineering Co Ltd v TJ Graham and Sons Ltd [1956] 3 W.L.R 804 (COA) [1957] 1 Q.B. 15

[23] ibid, para [36] (Lord Denning)

[24] Corporate Manslaughter and Corporate Homicide Act 2007

[25] Juliet Dobson (n12), 1986

[26] (n 24)

Bibliography:

Legislation:

Corporate Manslaughter and Corporate Homicide Act 2007.

Corporate Manslaughter and Corporate Homicide Act 2007, s 1(1)(a)(b).

Public Interest Disclosure Act 1998.

Table of Cases:

HL Bolton Engineering Co Ltd v TJ Graham and Sons Ltd [1956] 3 W.L.R 804 [1957] 1 Q.B. 15 (COA)

R v Letby [2023] (CH) Sentencing remarks

Journal Articles:

Dobson J, ‘We owe the families affected by Letby meaningful organisational change’, [2023] 382 BMJ 1986.

Dyer C, ‘New Law puts NHS trusts at risk of charges of corporate manslaughter’ (2008) 336 BMJ 741

Hothi DK, ‘Challenges to Improving Patient Safety in the NHS’ (2004) 9(3) CG, 143.

Rammya M, ‘Lucy Letby and the Limits of a No Blame Culture’, [2023] 382 BMJ, 1966,

T. D. Leenaars, and others, ‘A Psychological Profile of a Serial Killer: A Case Report’ (2012) 65(4) JDD, 301.

Tyrrell K, ‘The Serial Killer in Cinema’ (2001) 26(6) ALJ 274.

Books:

Loveless J, Allen M and Derry C, Complete Criminal Law: Text, Cases and Materials (8th edn, OUP, 2022).

Online Resources

The Lancet, ‘The Lucy Letby Case: Lessons for Health Systems’ (2023) 402(10404) LBE, 747