A care home operator has had a fine for health and safety offences increased from £30,000 to £90,000 following an appeal by the Crown Office and Procurator Fiscal Service (“COPFS”).

The appeal was against a sentence imposed after the death of one of its residents in 2020.

This case will be of interest to all care home operators and could have wider impact on health and safety sentencing generally and the determination of culpability and level of harm. The care sector remains under unprecedented scrutiny post Covid and faces wider challenges amidst the cost-of-living crisis and resource shortages. This coupled with several high-profile prosecutions attracting significant financial penalties (in January 2022, HC-One was fined £640,000 after a resident at one of its care homes choked on a piece of jam doughnut and died, and Ark Housing Association was fined £100,000 in February 2023 for risk assessment failures after a resident choked on a marshmallow and died) means that care home operators need to ensure that they continue to have suitable measures in place to meet their health and safety duties.

Case Facts and Circumstances

Tigh-Na-Muirn Limited operated a private care home to which David Fyfe was admitted in 2019, aged 90. He suffered from Alzheimer’s disease and other conditions. Having tested positive for Covid-19 he was placed in temporary isolation in his room. On 27 May 2020, which was the last day of his isolation, he presented to staff with breathing difficulties. Staff found a paper cup in his room with green residue. He was taken to hospital where he later sadly died.

A post-mortem established cause of death as acute tracheobronchitis and pneumonia, resulting from ingestion of an ammonium-based cleaning product. Due to the pandemic and the need for increased cleaning, staff had been instructed to store cleaning products for Covid positive rooms, like Mr Fyfe’s, on top of the ensuite bathroom cabinet. Unfortunately, the risk assessment for Mr Fyfe’s infection control plan did not identify that storage of cleaning products in his room presented a hazard to him. After Mr Fyfe’s death measures were put in place to ensure cleaning materials were kept in a locked box and away from residents’ rooms.

Sentencing

Tigh-Na-Muirn accepted that its risk assessment was inadequate and pled guilty to breaching its health and safety duties. When determining sentence, the sheriff began by considering the seriousness of the offence in terms of harm and culpability. She considered that the level of harm was extremely high, given that a death had occurred, and that other residents had been exposed to risk in the same way. However, she assessed culpability as low on the basis that the management team had no cause to think that Mr Fyfe might deliberately or accidentally ingest the cleaning product, that genuine efforts had been made in the challenging circumstances of the pandemic to respond to and react to a dynamic situation to keep residents and staff safe, and that the incident was an isolated one.

The Sheriff used the English sentencing guidelines on health and safety offences as a cross-check, which is accepted practice in Scottish health and safety cases. Again, she reached the view that culpability was low.

The sheriff considered a starting point of £30,000 was appropriate which was reduced to £20,000 for an early plea.

Appeal

COPFS appealed the fine on the basis that it was unduly lenient. In allowing the appeal and increasing the fine, the court said:

“The sheriff seems to have overlooked, or at least not placed any emphasis on, the period of the libel. For two and a half months the company breached a standard that they had hitherto adhered to, namely of ensuring that residents were protected from any risk of ingesting hazardous substances by keeping these in a locked cupboard. Accordingly, the sheriff was wrong to categorise the incident as an isolated one as there was a continuing breach. The simple and effective procedure of keeping locked boxes outside the room of any resident who was isolating following Mr Fyfe’s death illustrates that had the proposal to store the substances in a resident’s en-suite bathroom been risk assessed in any meaningful way, a different result would have ensued”.

The appeal court agreed with COPFS’ submissions that the sheriff placed undue weight on the circumstances of the pandemic in assessing culpability and failed to consider the fact that the breach continued for two months and that the failure to conduct an adequate risk assessment led to Mr Fyfe’s death.

Culpability was assessed by the appeal court as “medium” and that any starting point should be at the upper end of medium culpability and Harm Category 2 (£25,000 - £230,000) without applying any mitigating factors. However, after applying mitigating factors the appeal court increased the fine to £90,000, reduced by one-third to £60,000 for an early guilty plea.

Commentary

Whilst any decision by COPFS to appeal is not taken lightly and should only be done where the sentence has significant practical or policy implications, the case highlights the possibility of appeals for health and safety fines and the application of the English sentencing guidelines that are more formulaic in determining levels and ranges of fines.

An organisation’s culpability and the level of harm risked are important considerations when assessing the level of fine to be imposed. The difference in fines between each category of culpability and level of harm can be vast.

Where there are health and safety breaches identified against the backdrop of the dynamic circumstances of the pandemic, this will not serve to decrease the level of an organisation’s culpability when assessing sentence. Where a breach has caused death or serious injury that should be considered regardless of the circumstances.

Getting legal advice at the earliest possible opportunity post-incident will ensure that you carry out the right investigations and retain the most relevant information to enable you to put forward the best possible case in mitigation. It would also be worth reviewing any previous incidents where authorities are still investigating or where a decision on enforcement action is pending, to see if there is anything else you should be doing to reduce your risk of exposure to enforcement action or high fines in the event of prosecution.

Get in touch with our dedicated team if you need advice on any care related issues or health and safety generally.

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