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HMA V NHS Greater Glasgow and Clyde Heath Board

Jul 10, 2023

At Paisley Sheriff Court today, Sheriff McCartney fined NHS Greater Glasgow and Clyde Health Board £235,000 after the Board pled guilty to a breach of health and safety regulations committed for failing to ensure patients receiving medical treatment in South Ward, Gleniffer Unit, Dykebar Hospital were not exposed to risks to their health and safety. The failure led to a patient sustaining injuries from which he died.

On sentencing Sheriff McCartney made the following remarks in court:

"NHS Greater Glasgow and Clyde Heath Board (“the Board”) has pled guilty on indictment to failure to conduct their undertaking in such a way as to ensure, so far as reasonably practicable, that persons not in their employment who may have been affected thereby, namely patients receiving medical treatment in South Ward, Gleniffer Unit, Dykebar Hospital were not exposed to risks to their health and safety.

In consequence of their failure Martin Donnelly sustained injuries from which he died. Mr Donnelly was 36 years of age at the date of his untimely death.

A detailed narrative of the circumstances of the offence was provided in the Crown narrative. I do not intend to repeat that at length. In short there was a failure by the Board to ensure that existing ligature points were suitably and sufficiently risk assessed and that patients under its care there were not exposed to those ligature points. That failure took place between 1 January 2020 and 23 March 2020 both dates inclusive.

Health Board

As was set out in the plea in mitigation, the Board is the largest of 14 Scottish NHS regional health boards. 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.

The majority of the health board expenditure is met by funds advanced by the Scottish Government with further income streams such as income from other boards for services and treatments the Board provide on their behalf. In the year 2022-23 total income was around £3.9 billion.

Nonetheless the Board has a significant financial deficit arising from the costs of services. I was informed that in the last financial year, notwithstanding savings of £54.8 million there was a deficit of £119.7 million with a further deficit in the current year of £71.2 million arising predominantly due to the adverse impact of inflation, energy and prescribing costs. That is a total financial gap of £190.9 million. The board faces significant financial challenges.

Sentencing Approach

In approaching the question of sentencing, it is necessary to assess the gravity of the offence having regard to culpability and harm, take into account any aggravating or mitigating features and also the ability of the offending body to pay a fine and the impact of such a financial penalty upon them.

Culpability

In respect of culpability I consider that the Board has fallen far short of the appropriate standard.

The Health & Safety Executive (HSE) established that an environmental risk assessment containing a checklist completed for South Ward in October 2019 in respect of potential self-harm risks was unsuitable and insufficient. It was completed as part of the ward’s aim to achieve accreditation from the Royal College of Psychiatrists, because a ligature risk assessment was needed as part of the documentation required.

Once that checklist was completed it was simply filed, and the results of the assessment were not acted upon. The assessment in itself did not identify the ligature risk presented by the wash hand basin taps. As such HSE considers that assessment as merely “a paper exercise”.

That is of particular significance due to 2 factors:

Firstly the conviction in 2018 which related to the suicide of a patient by means of a bathroom tap as a ligature point at Stobhill Hospital, Glasgow.

Secondly in September 2018 the NHS issued a UK wide alert document concerning assessment of ligature points which was issued following the death of a patient using a ligature attached to low-level tap in a bathroom. A deadline of 19 March 2019 was specified for actions to be completed in respect of removing existing ligature points, where possible, or for reviewing and revising the associated risks.

These two factors should have alerted the Board to the need in a mental health ward treating vulnerable patients to address this issue as a matter of urgent priority. There has been a failure to make appropriate changes following these two events which exposed and highlighted this specific risk to health and safety

Likelihood of Harm

With regard to likelihood of harm, senior counsel submitted that having regard to the many potential ligature points in every hospital and the strict observation regime the likelihood can be categorised as low. I am not persuaded by that submission.

The danger presented by ligature points in the specific environment of a mental health ward constitutes at least a medium likelihood of harm. The factors highlighted by senior counsel alleviate likelihood of harm from high to medium.

The harm caused could not have been greater – as a consequence of the Board’s admitted failure Mr Donnelly lost his life.

Both aggravating and mitigating factors are present in this case.

Aggravating Factors

In terms of aggravating factors, the Board has three relevant previous convictions involving similar offending since 2017. Those convictions relate to the suicides of vulnerable individuals, then in the care of the Board. The conviction in August 2018 involved very similar circumstances to the present.

Also the Board did not make the bathroom taps throughout the South Ward ligature proof until a subsequent HSE investigation as reflected in the timeframe of the indictment.

Mitigating Factors

In terms of mitigating factors, the board fully co-operated with the investigation. Its head of health and safety who was appointed several months after this fatal incident, has fully cooperated with the HSE; remedial steps have since been implemented by the Board; there has been a prompt admission of guilt.

Sentencing Guidelines

There are no specific Scottish sentencing guidelines in respect of offences of this nature. There are such guidelines in England and, as has often been said, these can provide a useful cross check in respect of sentencing. Senior counsel referred to them in his plea in mitigation.

The approach required in those Guidelines is firstly to assess the category of offence in terms of culpability and harm. Senior counsel for the Board submitted that the court may consider that the level of culpability to fall in the category of “medium. “

I do not agree with that. I assess this case as one which would fall within the category of high culpability, having regard to previous conviction in September 2018, the National Alert document in relation to deaths in similar circumstances also issued in September 2018 and the failure to fully implement the risk assessment completed for South Ward in October 2019.

The applicable level of harm is “level A.” As previously explained, the likelihood of harm should be assessed as “medium” given the context of a hospital mental health facility.

Therefore the offence overall would fall within “harm category 2” in the English Guidelines.

As senior counsel highlighted, there is authority for the proposition that, notwithstanding the annual budget of the Board, it should be treated within the category of a “large” organisation in terms of the guidelines because of its nature as a public service provider. I accept that proposition.

The starting point within the English guidelines in such a case is a fine of £1.1 million with the extremely broad sentencing range of £550,000 to £2.9 million.

However there are important caveats which limit the assistance of the Guideline.

Firstly, the English Guidelines do not apply in Scotland. Their appropriate use is as a cross-check.

Secondly, the Guidelines themselves stipulate 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.

That is a very significant factor in this case.

The Board requires to operate within challenging financial constraints while continuing to provide vital and essential public health services. Whatever fine this court imposes has to be paid from the board budget and therefore a fine in the range indicated in the Guidelines would have a significant impact on the provision of services. 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.

In considering sentencing it has to be recognised that no two cases are identical and each case has to be considered on its own facts and circumstances.

Of course assistance in determining the appropriate sentence is derived from previously decided cases. From these I find that in considering sentencing in respect of a public body the figures arrived at on application of English sentencing guidelines have been departed from to a very substantial degree.

The Guidelines are really of very limited assistance in a case such as this. I do note that relevant previous convictions have resulted in fines of up to £200,000 and this is yet a further offence in terms of health and safety legislation.

Looking to the culpability, likelihood of harm and actual harm together with the aggravating and mitigating factors present 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 £350,000 is appropriate to achieve the aims of punishment, protection of the public and an expression of disapproval of the offending behaviour.

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 £235,000. The fine is to be paid within two months and is recoverable by civil diligence in default of payment.

As the offence was committed after 25 November 2019 a victim surcharge is to be applied. That surcharge is 7.5% which is £17,625.