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HMA v Greater Glasgow Health Board
Nov 12, 2021
On sentencing, Sheriff Principal Turnbull made the following statement in Court:
“In 2015, Anne Clelland was a long term and well known patient to mental health services with a history of prior admissions to Leverndale Hospital in Glasgow. She had a number of disorders which affected her moods and emotions. She had an extensive history of deliberate self-harm including cutting herself, overdoses, attempted drowning and the use of ligatures.
Ms Clelland took a deliberate overdose on the evening of Thursday 7 May 2015 and was admitted to the Accident and Emergency Department of the Queen Elizabeth University Hospital in Glasgow (QEUH) the following afternoon, after she had divulged the overdose to her partner who then took her to hospital.
She was given medication to counteract the physical effects of the overdose and was transferred to the Acute Medical Unit where treatment continued. By Sunday 10 May 2015 her condition had stabilised and she was transferred to Ward 5A, a general medical ward within the QEUH, where she continued to receive treatment.
A referral was made by medical staff to Liaison Psychiatry and a plan was put in place that Ms Clelland would be transferred to Leverndale Hospital once she was “medically fit". There was no suggestion at this time that, despite her ongoing treatment following a suicide attempt, she was at an increased risk of suicide and requiring of any special requirements, such as the removal of personal possessions, or enhanced observations, such as constant or special observations.
On Friday 15 May 2015 Ms Clelland was deemed "medically fit" and a request was made that day for Liaison Psychiatry to review her. A Trainee Liaison Psychiatrist visited the ward to assess Ms Clelland late that afternoon. His assessment was that there was a significant and ongoing risk of Ms Clelland harming herself. The psychiatrist left the ward and made a number of phone calls to put in place arrangements for Ms Clelland’s transfer to Leverndale Hospital later that evening – such a transfer having been agreed with staff at Leverndale Hospital.
Due to an admitted breakdown in communication it was not clear to the staff in Ward 5A of the QEUH that the intention of the psychiatrist was that Ms Clelland would be transferred that evening because of that assessed risk of self-harm. Despite the agreement reached by the psychiatrist with a staff member at Leverndale, Ms Clelland was not transferred that evening and remained in Ward 5A of the QEUH over the weekend.
Nursing staff within Ward 5A understood that Ms Clelland was to remain there until a bed was available within Leverndale and there continued to be contact over the weekend between Ward 5A; Ward 4A at Leverndale; and Liaison Psychiatry to chase this up. During these calls no one appears to have been aware of the assessment made by the psychiatrist on 15 May 2015 that Ms Clelland was at risk of self-harm, a risk which had not been identified prior to the assessment on 15 May 2015. In turn this meant that no-one on duty in Ward 5A over the weekend of 16 / 17 May 2015 appreciated the need to transfer Ms Clelland for this reason.
At approximately 3 am on Monday 18 May 2015 a nurse noticed that Ms Clelland was not in her bed and was not visible in her room. The nurse called to Ms Clelland through the locked bathroom door. On receiving no response, the nurse over-rode the lock and found Ms Clelland unconscious on the floor of her ensuite bathroom with a hairdryer cord wrapped several times around her neck. Ms Clelland was transferred to the Intensive Care Unit, however, was pronounced dead shortly before 1 am on 19 May 2015.
Anne Clelland was 49 years old when she died. Her family have been devastated by her death.
Greater Glasgow Health Board (the Board) is one of 14 Scottish regional health boards, forming part of NHS Scotland. The Board is responsible for many hospitals and other facilities throughout its area. The Board serves a population of about 1.2 million people and employs around 39,000 staff. It is the largest NHS organisation in Scotland and one of the largest in the UK. In the year to 31 March 2020 its funding amounted to £2.69 billion.
The Board has a conviction from 2017 relating to the suicide of two patients (in 2012 and 2014 respectively) both of whom were the subject of Compulsory Treatment Orders; and a conviction from 2018 relating to the suicide of a resident in 2013 at an adolescent mental health ward. These previous convictions, relating as they do to the suicides of vulnerable individuals, then in the care of the Board, are relevant to the disposal of this case.
In their investigation, the Health & Safety Executive (HSE) concluded that there was a lack of clear and consistent understanding of Ms Clelland’s significant risk of self-harm and suicide following the liaison psychiatry assessment; and that following that assessment measures should have been put in place to control this risk. HSE identified that there was clearly inadequate communication regarding this risk.
On the afternoon of Friday 15 May 2015, when the liaison psychiatrist made a clinical assessment of significant and ongoing risk of self-harm including suicide, there became an inherent risk associated with the ligature points in the room occupied by Ms Clelland, particularly within the ensuite bathroom where a patient could remain unseen for a period of time. There was no evidence of assessment of the risk arising when Ms Clelland remained in the room and increased observations were not considered necessary by anyone.
Since 22 September 2021, all courts in Scotland are required to follow the Scottish Sentencing Council guideline “The sentencing process”
The first step of the sentencing process requires an assessment of the nature and seriousness of the offence. The seriousness of an offence is determined by two things: the culpability of the offender and the harm caused, or which might have been caused, by the offence. As either or both culpability and harm increase, so may the seriousness of the offence.
In this particular case, the harm caused could not have been greater – as a consequence of the Board’s admitted failure Ms Clelland lost her life.
In assessing the seriousness of a particular offence, the court should refer to any applicable sentencing guideline which lists any factors relevant to the consideration of culpability and harm. As yet, there is no such guideline in Scotland in respect of health and safety offences, however, the court is permitted to have regard to, and has been referred to, the applicable definitive guideline in England and Wales, namely, that from 2016.
With reference to that guideline, senior counsel for the Board invited the court to assess culpability in the lower end of the medium category or the higher end of the low category.
I reject the submission that the degree of culpability might fall within the low category. It does not. The offence was committed through an omission which a person exercising reasonable care would not have committed. A fair assessment of the Board’s culpability falls in the medium category.
Ms Clelland had an extensive history of deliberate self-harm; she had been admitted following an attempted suicide; and had been clinically assessed as being at significant and ongoing risk of self-harm including suicide. Leaving her in a room which had numerous ligature points without any form of enhanced observations gave rise to a high likelihood of harm.
Even were the likelihood of harm to be assessed in the medium category, it might be argued that the Board’s previous convictions bring it within the high likelihood of harm category; and the fact that the offence itself resulted in the significant cause of actual harm is a factor by which it may be appropriate to move the case from the medium to high likelihood of harm category.
This being a Level A case (in terms of the seriousness of harm risked) the case falls within what the England and Wales guideline refers to as “harm category 1”.
For a large organisation, that is one with a turnover or equivalent in excess of £50 million per annum, the starting point in such a case is a fine of £1.3 million with a sentencing range of £800,000 to £3.25 million.
For reasons I explain below, albeit the Board is, on any view, what is termed a very large organisation in the England and Wales guideline (it having a turnover equivalent of £2.69 billion in the year to 31 March 2020), I do not propose to start from a point out with this range.
At this point, I am required to identify aggravating and mitigating factors. Both are present in this case.
In terms of aggravating factors, the Board has two relevant previous convictions involving similar offending. Those convictions relate to the suicides of three vulnerable individuals, then in the care of the accused – in the 3 years prior to the death of Ms Clelland. In relation to those matters the Board was fined £70,000 and £100,000.
In terms of mitigating factors there was a prompt admission of guilt; full co-operation with the investigating authorities; and a wide reaching review that led to the taking of a number of steps to address the issues raised in this tragic case.
In determining the headline sentence the court must also have regard to the Scottish Sentencing Council’s guideline ‘Principles and purposes of sentencing’. Amongst other considerations, sentences should be no more severe than is necessary to achieve the appropriate purposes of sentencing in each case.
On behalf of the Board it is submitted that a large fine would have a significant effect upon its ability to carry out its function. Whilst the turnover of the Board is very substantial, it is all accounted for. The Board project a significant financial shortfall in the current financial year, one in which the pressures faced by the NHS in general and the Board in particular are well understood by the court and by the public at large.
The purposes of a sentence may include a number of things, one of which is expressing disapproval of offending behaviour. The expression of such disapproval is all the more appropriate where there are recent, analogous previous convictions.
The England and Wales guideline stipulates that where a fine will fall on a public body, it should normally be substantially reduced if the offending organisation is able to demonstrate that the proposed fine would have a significant impact on the provision of its services. Notwithstanding the starting point and range I have identified, looking to the aggravating and mitigating factors in this case and to the circumstances of the Board in terms of their funding, the invaluable services they provide to the population they serve and the effect any fine will have, I am satisfied that a headline sentence of a fine of £300,000 is no more severe than is necessary to achieve the appropriate purposes of sentencing in this case.
The Crown acknowledges that the time taken to conduct its investigation and bring criminal proceedings in respect of the death of Ms Clelland has been far too long and has apologised for the fact that its investigation and these proceedings were not concluded sooner. The Crown accept that had they concluded their investigations sooner, a section 76 letter would have been submitted earlier. Whilst accepting that it is entirely a matter for the court, the Crown take no exception to the Board receiving the maximum sentencing discount available to them.
The court is required by law to take into account the stage in the proceedings at which, and the circumstances in which, the offender indicated their intention to plead guilty. In essence, the Board submits, and the Crown accepts, that the plea in this case was tendered at the earliest possible opportunity.
I will give effect to that by reducing the headline sentence to a fine of £200,000. The fine is to be paid in 28 days and is recoverable by civil diligence in default of payment.”
12 November 2021