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APPEAL AGAINST SENTENCE BY ST DAVID'S CARE FORFAR LTD AGAINST HMA [2023] ScotHC HCJAC_17 (23 May 2023)
URL: http://www.bailii.org/scot/cases/ScotHC/2023/2023_HCJAC_17.html
Cite as:
2023 GWD 21-192,
[2023] ScotHC HCJAC_17,
2023 JC 169,
2023 SCCR 229,
2023 SLT 688,
[2023] HCJAC 17
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APPEAL COURT, HIGH COURT OF JUSTICIARY
[2023] HCJAC 17
HCA/2023/000070/XC
Lord Pentland
Lady Wise
OPINION OF THE COURT
delivered by LORD PENTLAND
in
Appeal against Sentence
by
ST DAVID'S CARE FORFAR LIMITED
Appellant
against
HIS MAJESTY'S ADVOCATE
Respondent
Appellant: Culross; Jackson Boyd Lawyers
Respondent: Trainer, advocate depute ad hoc; Crown Agent
23 May 2023
Introduction
[1]
On 10 February 2023 at Dundee Sheriff Court the appellant company pled guilty to
an indictment served under section 76 of the 1995 Act libelling a charge in the following
terms:
"On 12 January 2017 at St. David's Care Home, 38 Glamis Road, Forfar ... you ...
being an employer within the meaning of the aftermentioned Act did fail to conduct
your undertaking in such a way as to ensure, so far as was reasonably practicable,
2
that persons not in your employment who may have been affected thereby were not
exposed to risks to their health or safety in that you did fail to provide effective
arrangements to prevent residents from leaving the care home unnoticed without
alerting your staff to their movements in that you de-activated an alarm on the fire
door in the dining room which enabled resident Georgina Norrie to leave the
building in the early hours of the morning unnoticed, whereby she was locked out
and consequently she suffered from hypothermia which caused the death of the said
Georgina Norrie; CONTRARY to Section 3(1) and Section 33(1)(a) of the Health and
Safety at Work etc. Act 1974."
[2]
The sheriff imposed a fine of £100,000 discounted for the plea from £150,000. The
fine was to be payable at the rate of £1,500 per month. He also imposed a victim surcharge
of £7,500.
The facts
[3]
The appellant operated St David's as a privately owned care home for a maximum
of 22 older people. Residents had their own rooms. The directors of the company are a
married couple, both formerly registered nurses. A care inspectorate report dated
14 November 2016 graded the home's quality of care, support and staffing as excellent and
suggested no improvements. No complaints had been upheld against the appellant in the
preceding year. Historically it had achieved high scores and grades when inspected.
[4]
The deceased was an elderly, frail lady who suffered from learning difficulties,
advanced dementia, diabetes and chronic renal disease. Due to her dementia she had no
understanding of her condition and wholly lacked capacity. By January 2017 the deceased
had become more confused about where her room was and generally in and around the
home. She tended to get up several times each night looking for food. She had lost weight,
was unsteady on her feet and had suffered falls. She needed assistance to visit the toilet.
3
[5]
At the time of the deceased's death there was no CCTV system in the home. Each
bedroom was, however, fitted with a motion sensor which, when triggered, alerted staff to
movement in the room.
[6]
The deceased's individual risk assessment stipulated that her room motion sensor
should be switched on to alert carers to her movements during the night. Although the
sensor sometimes activated when the deceased moved in bed, it began to do so less
frequently around 6 months before her death and often did not activate at all when she
got up and left her room.
[7]
At some point a piece of tape had been applied over the sensor. Neither of the carers
on duty on the night of the deceased's death was aware that this had occurred.
[8]
At the time of the deceased's death all but one of the entrances and exits to the home
were locked and/or alarmed. The exception was a fire door leading to a patio and a garden
from the dining room. This door could only be opened internally.
[9]
The appellant took steps to prevent residents leaving the home at night. A wall
bordered the front of the property, the front gates were secured by chains and a padlock and
the rear main gate was locked and secured by means of a keypad.
[10]
On the night of 11 January 2017 the two duty care assistants were instructed to check
on all residents at 2200, 0200 and 0600. Each check included ensuring that residents were in
bed and that motion sensor alarms were switched on. Both care assistants were aware of the
deceased's state of health.
[11]
The check conducted at 0200 disclosed that the deceased was in bed and that her
motion sensor alarm was switched on. However, a further check at 0610 revealed that she
was not in her room. As her motion sensor had not activated, neither staff member had
been alerted beforehand.
4
[12]
Both carers searched the home but were unable to find the deceased. One carer
then left the home through the dining room door, which was not alarmed. She found
the deceased in her nightwear outside, lying on her back at the door facing Glamis Road.
Although the deceased was conscious and breathing, she appeared very cold and was using
her hands to rub her upper arms in an attempt to warm herself.
[13]
The carers carried the deceased, who remained conscious, back to her bed. An
ambulance was called, her wet clothing removed, and attempts made to warm her up.
Notwithstanding these efforts, the deceased's breathing changed, her eyes became glazed
and she ceased breathing. CPR was commenced until the carers became aware that the
deceased's care plan confirmed that a Do Not Attempt CPR certificate was in place. At 0714
a paramedic attended and pronounced life extinct.
[14]
An autopsy on 16 January 2017 identified the deceased's cause of death as
1a) atherosclerotic coronary artery disease and hypothermia (outdoors).
[15]
Subsequent investigation disclosed that the home's general risk assessment for all
residents should have identified a need for every exit door to be alarmed, particularly at
night and in colder weather, in order to alert the staff to any movements of residents and
to reduce the risk of anyone leaving the building unnoticed. While the risk assessment
stated that suitable security measures should be provided to prevent unauthorised access
to the premises and residents leaving them unnoticed, such measures required to be
proportionate and to balance the appellant's duty of care against residents' rights to exercise
independence.
[16]
Health and safety officers from Angus Council subsequently found:
a)
A suitable and sufficient risk assessment would have identified that exiting
the building unnoticed was a hazard which posed significant risks to residents,
5
including falls potentially leading to injury or death, exposure to cold temperatures
potentially leading to hypothermia or death and emotional distress if residents were
unable to gain entry;
b)
such risks were exacerbated during the night and in winter as they were unlikely
to be noticed and would expose residents to cold temperatures;
c)
other residents had exited the home through the fire door and had been found
outside;
d)
as the dining room fire door was used during day time hours and as the deceased
was known to frequent the dining room during the night, there was a risk that she
might use the fire door during the night; it was foreseeable that a resident might use
the door during the night to leave the building;
e)
a suitable and sufficient risk assessment would have identified suitable controls
to prevent a resident such as the deceased exiting the home during the night; and
f)
any such suitable controls, for example a functioning alarm, would have alerted
staff to a resident having exited the building during the night. The fitting of such an
alarm was a reasonably practicable preventative measure for the appellant to have
implemented.
The sheriff's approach to sentence
[17]
It is clear from his detailed and careful report to this court that the sheriff gave close
consideration to all the circumstances of the case in determining the appropriate penalty to
impose. He took the view that the offence was aggravated by several factors, most seriously
by its having caused the deceased's death. In addition, other aggravations were evident
from the agreed narrative.
6
[18]
First, the incident related to a person suffering from dementia and occurred in
premises where the appellant provided specialised care to vulnerable persons. As such,
the appellant occupied and breached a position of trust and responsibility.
[19]
Second, the appellant knew that the deceased exhibited symptoms and behavioural
patterns which were likely to expose her to danger. She had advanced dementia, had no
understanding of her condition and wholly lacked capacity; her other difficulties created
separate foreseeable risks - she had learning difficulties; she was unsteady on her feet, was
susceptible to falls, was confused, had a habit of getting out of bed several times each night
to look for food and was known to frequent the dining room when she did so.
[20]
Third, although the appellant's personal risk assessment for the deceased specifically
recognised those dangers and contained measures designed to address or minimise the risk
created by them, the appellant took steps which deliberately circumvented them. In
particular, the assessment recognised the risk created by the deceased leaving her room at
night and addressed it in part by providing for a motion sensor alarm to be fitted in her
bedroom; this would alert staff to her movements. However, by placing tape over the
sensor, and by failing to take steps to consider the sensor when it failed to operate in the
6 months preceding the deceased's death, the appellant culpably failed to consider the
danger the tape created, ignored the risk assessment, took no steps to inspect the sensor,
install a different sensor or consider and provide a suitable alternative. Thereby, the
appellant knowingly allowed a control mechanism, which was crucial to the deceased's
safety, to disappear. That the sensors in the building were old, were not installed by the
appellant, were faulty and no doubt inconvenienced the deceased and other residents at
night, were all, in context, irrelevant factors.
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[21]
Fourth, the appellant ignored two further factors - the deceased was known to
frequent the dining room area at night and, separately, other residents had exited the
home through the fire door and had been found outside. The appellant did not address
the obvious risk created at night by the absence of an alarm on the dining room fire door.
Again, that failure ignored a risk assessment which noted that steps required to be taken
to prevent vulnerable service users such as the deceased leaving the premises unnoticed.
[22]
The sheriff also recognised the existence of mitigating factors and the absence of
other recognised aggravating features - the appellant promptly reported the incident
and fully co-operated with subsequent investigations. There was a reasonably prompt
acceptance of liability after disclosure of the evidence. The appellant had an otherwise
unblemished health and safety record. It had been consistently rated highly in regulatory
reports. It had an excellent reputation. It took steps to address its failures. Its directors and
staff appeared to have been genuinely devastated by the circumstances of the deceased's
death. It was not suggested that the breaches occurred with a view to profit. It was not
suggested that this was anything other than an isolated incident or that the appellant failed
to heed advice. One of the directors had recently suffered a life-changing diagnosis which it
was well-known could be brought on by stressful events. Finally, there had been no further
incidents since the deceased died.
Amount of the fine
[23]
Before the hearing the sheriff had been provided with copies of the appellant's
"financial statements" for its financial years ending in March 2020 and 2021. Those
statements transpired to be the abbreviated balance sheets which the appellant had lodged
8
with Companies House as a small company exempt from lodging full accounts in terms of
section 477 of the Companies Act 2006.
[24]
The sheriff observed that unfortunately he had not been provided with detailed
information which might have been useful, in particular details of the appellant's profit
margins, its cash flow, its profit and loss accounts or any other accounts prepared for 2022.
The sheriff noted that, as the appeal court observed in HMA v Munro & Sons Highland
Limited 2009 SLT 233 para [30], in a case such as this the company should provide the court
with detailed information to enable the court to see its complete financial picture without
resorting to speculation.
[25]
From the information given in the financial statements the sheriff noted that the
appellant held assets valued between £1.75 to £1.9 million and, net of its liabilities, had net
assets valued in excess of £600,000. It was not submitted on behalf of the appellant that it
would be unable to pay a fine. There was no suggestion that the appellant's operations were
unprofitable.
[26]
While the sheriff accepted from the information put before him that the appellant's
energy costs had increased, he considered that these were capable of being recovered from
private paying residents and he noted that the appellant's cash flow was reasonably
consistent.
[27]
The sheriff observed that while the financial statements disclosed that the appellant's
current liabilities included a bank overdraft of nearly £400,000, almost all the remainder
comprised directors' loans. It was not suggested to the sheriff that the appellant was unable
to service its overdraft, no longer enjoyed the continued support of its bankers and/or that
there was any likelihood that the directors' loans would be called up. In those
circumstances the sheriff inferred that the appellant had no immediate financial difficulties
9
and, even under deduction of its current liabilities, it still held net assets valued in excess
of £600,000.
[28]
The information available to the sheriff strongly suggested to him that a substantial
fine would not adversely affect the appellant's solvency, the continued employment of its
staff or its ability to care for residents. Finally, as the deceased had died 6 years earlier and
it had been known at an early stage that a prosecution was almost inevitable, the appellant
had had adequate opportunity to make advance financial provision to meet a fine.
[29]
The sheriff took the view that the fine had to reflect the public interest by punishing
the appellant for failing to pay due regard to the deceased's safety. He viewed the failure
in this case as highly significant because it occurred in an environment designed to protect
vulnerable persons, as it had resulted in the deceased's death and was aggravated by other
important factors. No one other than the appellant was responsible for the failure. For those
reasons, the sheriff considered that a substantial and meaningful fine was justified.
[30]
From the information which the appellant chose to submit to the court, the sheriff
assessed that, at highest, the appellant could theoretically realise or borrow against the value
of its average net assets, in other words around £600,000. He appreciated, however, that
many of those assets could and should not be realised as they were needed operationally
and that it was inherently likely that the appellant could borrow that amount or service that
level of debt.
[31]
Consequently, using the net asset figure as a base reference and applying a broad
brush, the sheriff assessed that the appellant was able, at highest, to meet a fine of half the
value of its net assets in other words, around £300,000.
[32]
However, that figure ignored two other classes of relevant factors. The first was that
the interests of the appellant's residents and staff needed to be protected and any possibility
10
of insolvency should be avoided. The second was the mitigating factors and the absence
of the other recognised aggravating factors. Again, applying a broad brush, the sheriff
regarded each class as a substantial factor, each of which justified a further 25% reduction.
[33]
Consequently, the sheriff assessed that a proportionate and reasonable headline fine
would be £150,000 which, after applying a discount in terms of section 196 of the 1995 Act,
he restricted to £100,000.
Submissions for the appellant
[34]
On behalf of the appellant it was submitted that the sheriff's approach was
inappropriate and that he had given insufficient weight to the mitigatory factors.
[35]
The sheriff had erred by not applying the Definitive Sentencing Guideline issued
by the Sentencing Council for England and Wales on Health and Safety Offences, Corporate
Manslaughter and Food Hygiene Offences. Its use had been approved in Scottish case law
(Scottish Sea Farms Ltd v HM Advocate 2012 SLT 299 at para [25]). The sheriff had failed to
consider the culpability of the company before addressing the likelihood and seriousness of
the incident; and thereafter the resources of the company. It was accepted that the sheriff
had not been referred to the Guideline at the sentencing diet, but it was nonetheless
submitted that it could be relied on to support an appeal on the basis that the fine imposed
was out of line with what would be considered appropriate in terms of the Guideline.
[36]
Given the small size of the company and its limited turnover, the level of fine
imposed indicated that the sentence was commensurate with very high or high culpability
under the Guideline. This assessment was unfounded. The appellant had not fallen far
short of the appropriate standard, for example by failing to put in place measures
recognised as standards in the industry, or by ignoring concerns raised by employees or
11
others, or by failing to make appropriate changes following prior incidents exposing risks
to health and safety, or by allowing breaches to subsist over a long period of time. For an
assessment of very high culpability the sheriff would have had to find that there was a
deliberate breach or a flagrant disregard for the law. None of these elements formed part of
the circumstances of the case; high or very high levels of culpability were not justified. The
sheriff erred in the classification of culpability.
[37]
It was acknowledged that since a death had occurred the seriousness of the harm
was at Level A (page 5 of the Guideline). Thereafter the correct approach was to consider
the wider risk to the public, and other people (staff and residents); and whether the offence
was a significant cause of the actual harm.
[38]
Step two in the Guideline required an assessment of the company's finances and of
the aggravations and mitigations. The appellant was a very small (micro) company with
limited resources. Had that been properly assessed, the starting point for the fine should
have been far lower than the headline sentence selected by the sheriff.
[39]
If the sheriff had considered the culpability was low and the harm at Level A, the
consequent harm category was Harm Category 3. Given the factors outlined to the sheriff
in terms of the efforts made by the appellant on health and safety, it was submitted that the
level of culpability was low. There had been significant efforts made to ensure the health
and safety of all residents across a number of areas, as was demonstrated in the narrative
and the submissions on behalf of the appellant. While there had been significant efforts to
ensure health and safety, they were inadequate on this one, isolated occasion. The incident
was properly viewed as an isolated one - with the previous health and safety record being
exemplary and the health and safety record in the 6 years following the incident similarly
excellent - and above and beyond what is generally required.
12
[40]
The company fell within the micro company bracket, having a turnover of less than
£2 million. The category range for a fine for a micro company where the harm category is 3,
and the culpability is low, would be a range of fine far lower than imposed by the sheriff.
Even if the company were considered to have a medium level of culpability, the fine level
would have been in a range far lower than imposed by the sheriff.
[41]
There were no aggravating features and substantial mitigation. The fact that the fine
would take more than 6 years to pay showed that it was excessive.
[42]
The sheriff erred in treating the placing of tape on the sensor as a deliberate act
designed to circumvent the risk assessment. The use of tape was a recognised approach
in the guidebooks for the sensors (this was an agreed aspect of the plea based on the
investigation carried out), and the particular sensor in the deceased's room was not well
placed to assist her in her independent but risk-free living. Photographs showed it to be
above door height in her room, and inappropriate properly to record movement in a way
that promoted her wellbeing. It was a sensor that did not routinely sound when she left her
room and did sound when she turned over in bed, and did not sound at other times because
her movement was masked by the significant number of soft toys that she liked to keep in
bed with her. Moving the deceased to another room, in order to change the sensor or to
have her in a room with a different sensor would have been extremely distressing for her.
It would have increased the risks of disorientation given her limitations and dementia.
[43]
While other residents had left the home through the fire door, none of these incidents
had detrimental consequences or led to a risk to their welfare.
[44]
There had been no similar incidents of residents being outwith the care home
without the knowledge of carers or at night. The care home was graded very highly by the
13
Care Inspectorate only 2 months prior to the incident, a grading consistent with other prior
inspection reports.
[45]
Counsel reiterated the various mitigatory factors: the fact that immediate steps were
taken to put right the deficiency; the appellant's previous good record; its cooperation with
the investigation; the devastating effect of the death on the directors and staff; the unusual
and isolated nature of the incident; the fact that the breach was not committed with a view
to profit; the early acceptance of responsibility; the length of time taken to bring the case to
court; and the personal circumstances of the directors. It was submitted that inadequate
weight had been given to the cumulative effect of these various factors.
Decision
[46]
The court has given careful consideration to all that has been said on behalf of the
appellant, but is not persuaded that the fine was excessive. The sheriff analysed all the
relevant features of the case and came to a well-reasoned conclusion. He assessed the level
of culpability in light of several indisputable aggravating features: in particular, the fact that
the failure properly to assess risk led directly to the deceased's death; that she was a highly
vulnerable person for whose specialised care in a safe environment the appellant was
wholly responsible; that the appellant failed adequately to address the obvious risks to her
safety of leaving her room at night; and the fact that the absence of an alarm on the dining
room door was, on any reasonable assessment, a gross failing. The sheriff took full account
of all the mitigating considerations. In selecting the level of fine he adopted a nuanced
approach based on a sound analysis of the appellant's financial position given the limited
information provided to him.
14
[47]
We were referred to the accounts for the year ended 31 March 2022, which had not
been before the sheriff. There is nothing in them that detracts from the approach he took.
We note, in particular, that the appellant has net assets of £694,196. From the profit and loss
account shown to us the total turnover for the 3 months ended December 2022 would
appear to be £242,156. This is a significant increase on the same 3 month period in 2021
and 2020, apparently due to a substantial increase in the amount of residents' fees.
Accordingly, we are not persuaded that reliance on turnover as opposed to net assets would
justify a different outcome.
[48]
While the sheriff did not base his approach explicitly on the Definitive Sentencing
Guideline issued by the Sentencing Council for England and Wales, he was not bound to do
so, particularly since the Guideline was not relied upon by the appellant at the sentencing
diet. The sheriff had regard to HMA v Munro & Sons Highland Limited 2009 SLT 233 and
to Scottish Sea Farms Ltd v HMA 2012 SLT 299 and applied the guidance contained in these
authorities.
[49]
In any event, there is nothing in the sheriff's approach that is materially inconsistent
with the Guideline. In essence, he correctly assessed the level of the appellant's culpability,
took proper account of the mitigation, and selected a fine that was appropriate and
proportionate in view of the appellant's financial position. We consider that under the
Guideline the level of culpability would have been assessed as being at least high and
possibly very high. There was arguably a deliberate breach of or flagrant disregard for the
law by failing to ensure that an obvious safety measure was working; in this connection
we note that the appellant pled guilty to a libel that included their having de-activated the
alarm. In answer to questions from the court counsel explained that the alarm had been
de-activated for a number of months before the incident. Since the bedroom sensor was also
15
de-activated the position was that there was nothing to alert the carers on duty to the fact
that the deceased had left her bedroom, gone to the dining room and used the dining room
fire door to leave the building. There was a significant risk that the deceased would behave
in this manner, as the appellant was or should have been well aware. All this points to a
high or very high level of culpability on the part of the appellant.
[50]
Looking at the factors referred to in step one of the Guideline, the appellant at least
fell far short of the appropriate standard by failing to put in place safety measures that are
recognised standards in the industry, namely by ensuring that there was an effective alarm
on an exit door likely to be used as a route out of the home by a vulnerable resident
suffering from dementia. So far as the seriousness of the harm risked by the appellant's
breach is concerned, this would clearly be categorised under the Guideline as being at
level A since the breach directly caused the deceased's death. The likelihood of that harm
arising was high since it was very likely that the deceased would attempt to leave the home
during the night by means of the dining room door leading outside. The Guideline next
requires the court to consider inter alia whether the offence was a significant cause of actual
harm. There can be no doubt that the answer to this must be in the affirmative: the failure
properly to address an obvious risk directly led to the deceased's death. Such a conclusion
would justify the court moving the offence up a Harm Category or moving up the starting
point at step two.
[51]
Step two under the Guideline requires the court to focus on the organisation's annual
turnover to reach a starting point for a fine. In the case of a so-called micro company, such
as the appellant, the starting point for a high culpability offence in Harm Category 1 is stated
to be £160,000 with a category range of between £100,000 and £250,000. The headline
sentence selected by the sheriff falls squarely within that range. The Guideline allows
16
for upward or downward adjustment from the starting point in view of aggravating and
mitigating factors. As we have said, the sheriff took proper account of both types of factor
in his approach. The headline sentence he selected was less than the starting point for a
high culpability offence and was lower than the mid-point in the category range.
[52]
It is important to note also that under steps three and four in the Guideline the
court should step back, review, and if necessary adjust the initial fine to ensure that it fulfils
the sentencing objectives for the offences. These include ensuring that the fine is sufficiently
substantial to have a real economic impact that will bring home to the company's
management and shareholders the need to comply with health and safety legislation.
[53]
We consider that the fine imposed by the sheriff properly fulfilled the relevant
sentencing objectives of punishment and deterrence, that it will have a real economic impact
on the appellant, and that it is not in any sense disproportionate in light of the appellant's
financial position. In short, when the Guideline is used as a cross-check against the sentence
imposed by the sheriff it can be seen that the fine selected was broadly in line with the level
of fine that would be appropriate were the Guideline to be applied to the circumstances of
the present case. We stress that the Guideline should not be used in a mechanistic manner;
it can be used as a broad cross-check against the sentence that would be considered
appropriate according to current Scottish sentencing practice.
[54]
The appeal is refused.
