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HMA v Tigh-Na-Muirn Ltd
May 10, 2023
On sentencing Sheriff Jillian Martin-Brown made the following remarks in court:
"I have taken into account what has been said on behalf of the company by senior counsel; the written plea in mitigation; the financial information provided; the agreed narrative; and the crown’s written submissions. Ultimately, after careful consideration, I have determined an appropriate level of fine. I will set out the level of fine that I am imposing first and then I will explain the reasons for my decision.
I have decided to impose a fine of £30,000. I will reduce that sum by one third to £20,000 in light of the company’s guilty plea at the earliest opportunity. A victim surcharge is payable on top of that amount. I will allow two months for payment.
Circumstances of Offence
The offender in this case is a private limited company who runs a retirement home in Monifieth. The home is a family business, having been owned and operated by the Philip family since 1991. Mr Philip is a director and works full time with his daughter in running the home. They are supported by a General Manager and have 120 employees.
A resident of the home, Mr David Fyfe, ingested a quantity of Sterigerm cleaning sanitiser on 27 May 2020, which had been intentionally stored by staff on top of his en-suite bathroom cabinet. It is an ammonia-based cleaning agent sufficient to guard against the spread of COVID-19 on surfaces, which was sourced in bulk and diluted and decanted into bottles. Mr Fyfe became acutely unwell and was admitted to Ninewells Hospital, where he died on 31 May 2020. He was 90 years old.
The incident took place during the coronavirus pandemic. A COVID-19 resilience plan was created in February 2020 by a full team of 18 managers following advice from HSE, Public Health Scotland, Health Protection Scotland, Care Inspectorate and Angus Social Work Department. As advice was required to change regularly during the pandemic, it could lead to confusion at times. The resilience plan stipulated isolated rooms would have their own cleaning kits, which would be kept in each room and not removed. A team decision was taken to use Sterigerm and store it within COVID positive residents’ rooms in the absence of clinical wipes due to supply issues associated with the pandemic.
Mr Fyfe was isolating in his room after testing positive for coronavirus. His room was cleaned on 26 May 2020 and cleaning products were stored towards the back of the top of the bathroom cabinet, as per Mr Fyfe’s individual infection control plan. A carer checked on him at around 07:40 on 27 May 2020 and he appeared content, asking when breakfast would be served. No cleaning chemical was visible in the room at that time.
At around 08:30 Mr Fyfe came to his door and was observed to be sweating profusely, having breathing difficulties and speaking with a hoarse voice. He stated he had chest pain. An ambulance was requested.
At that time staff observed a paper cup with green residue on a table next to an unlabelled screw top spray bottle of cleaning sanitiser, still with the lid on. Paramedics transferred Mr Fyfe to hospital, where he gradually deteriorated until his death at midnight on 31 May 2020. The primary cause of death was acute tracheobronchitis and pneumonia, resulting from the ingestion of ammonium-based cleaning product. Ischaemic heart disease and Alzheimer’s disease were listed as contributory factors.
It is not known why the bottle of Sterigerm had no label. Company procedure was for each bottle to have labels on both sides including instructions for use. Bottles in other isolation rooms had labels, although they could be peeled off.
Angus Council Environmental Health officers concluded that Mr Fyfe’s COVID-19 plan did not consider any hazards to Mr Fyfe by storing chemicals in his room. They concluded the company had failed to adequately assess the risks posed to residents by the storage of Sterigerm in their rooms.
Following the incident and prior to a visit from investigating officers, COVID response boxes are now kept locked outside residents’ rooms and contain everything a person with COVID or suspected of having COVID needs. The home now has access to wipes so the use of Sterigerm is no longer required.
The maximum penalty in this particular case is an unlimited fine. Applying the relevant factors set out in Scottish Sea Farms Ltd v HMA 2012 SLT 299 to the circumstances of this particular case, an aggravating feature is that death has occurred as a consequence of the breach. In addition, Mr Fyfe was a vulnerable individual as a result of his Alzheimer’s disease and the company were entrusted with his care.
However, there are also mitigating factors to take into account. No financial gain was made, nor intended to be made. The breach occurred by omission. While, with the benefit of hindsight, Sterigerm ought not to have been stored in an accessible place in Mr Fyfe’s room, the management team did not have any cause to imagine that Mr Fyfe might deliberately or accidentally ingest the cleaning agent. Though he suffered from Alzheimer’s disease, his condition did not manifest itself in risky or erratic behaviour and he was able to undertake his own personal care independently, with minimal assistance. While the company fell short of the required standard, genuine efforts were being made in extremely challenging circumstances to respond to and react to a rapidly changing situation to keep residents and staff safe. The incident was an isolated one.
A guilty plea was tendered at the earliest opportunity, avoiding the need for a lengthy trial. The company has taken effective steps to remedy the deficiency. Documentation provided to the investigation by Angus Council indicated efforts by all concerned to comply with health and safety duties. I accept that the company had a responsible attitude to health and safety and an excellent safety record. It has no previous convictions.
The company’s accounts indicate that turnover is consistent at around £3 million per year. Net profit was over £400,000 in 2018 but has reduced to around £366,000 in 2021. I also note that the company currently faces financial challenges caused by significantly increasing energy costs; food costs; staffing costs; and post-COVID infection control measures.
The Scottish Sentencing Council’s Principles and Purposes of Sentencing Guideline makes it clear that in weighing up all the relevant factors of this case, I am required to impose a sentence which is no more severe than is necessary. I am of the view that in light of all the particular circumstances of this tragic and unusual case, a fine in the sum of £30,000 achieves the purposes of punishment and societal disapproval, while being no greater than the interests of justice demand.
As a cross-check, I have also had regard to the Definitive Guideline in relation to Health & Safety Offences produced by the Sentencing Council in England. Following the steps outlined in the guideline, I am of the view that the low category of culpability is applicable because the company did not fall far short of the appropriate standard.
Moving on to determine the level of harm, since death has occurred the offence falls within level A in terms of seriousness. As far as likelihood of harm is concerned, I assess this as medium, resulting in harm category 2. Given that the offence was a significant cause of actual harm in this case, I am of the view that overall, the harm falls to be assessed towards the upper end of category 2.
Small companies with turnover between £2 million and £10 million attract fines ranging from £3,000 - £40,000 for category 2 offences. Allowing for the mitigating factors outlined above, I am satisfied that my imposition of a fine of £30,000 in this case is proportionate, falling within the upper end of category 2 offences.
Discount and Time to Pay
I will discount the fine by one third to £20,000 in light of the company’s guilty plea at the outset. A victim surcharge is payable on top of that sum. I will allow two months for payment."