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HMA v NHS Ayrshire and Arran Health Board


May 28, 2024

At Kilmarnock Sheriff Court today, Sheriff Patrick fined NHS Ayrshire and Arran Health Board £66,000 after the health board admitted, via s76 procedure, a failure to ensure meals it provided minimised the risk of choking and caused the death of Iris McNaught.

On sentencing, Sheriff Patrick said:

“Nothing I can say in this case nor any sentence the court can pass can reflect the consequences of the failure in this case.  I wish to state that the sentence I am passing in this case is in no way reflective of the tragic outcome or the loss sustained by the family and loved ones impacted by this and I once again extend sincere condolences to those affected.

I have listened very carefully to all of the circumstances in this anxious and difficult case.  I have also had the benefit of detailed submissions from counsel on behalf of the NHS.  I have considered carefully the sentencing guidelines for such cases referred to by counsel and the recent cases I was directed to involving public bodies. All of this is helpful in setting out the factors that must be taken into account.

This case turns on what was ultimately a failure to implement a final check albeit there was a developed system in place to mitigate the risks for those at risk of choking.  I accept the submission that the failure in this case is a narrow one and accordingly falls within the low culpability bracket.  In terms of the categorisation of harm there is no question that level A applies.  The absence of any final check, in my view, does mean that the likelihood of harm was medium, that is effectively borne out by what happened. In considering the final harm category that is applicable there is also no doubt that the offence was a significant cause of actual harm, it was the only cause.  This could on one view justify moving up a category but taking everything in the round I take the view that the offence can be categorised as harm category 2 but substantially moving up the category range is justified.  For all of those reasons I have selected a start point of £200,000. 

Counsel have thereafter drawn my attention to the mitigating factors, of particular relevance are the very significant steps taken to remedy the system failure that gave rise to the incident.  That said the previous convictions are an aggravating factor.  However, in addition, I am duty bound to consider the organisation's role in providing a public service and the impact of a fine.  Taking all of these matters into account and having regard to the approach taken by Lord Beckett in HMA v the Chief Constable I am reducing that figure to £100,000.  The organisation has accepted full responsibility for this and has plead guilty by way of s76 procedure avoiding the need for a complex and lengthy trial.  Applying the appropriate sentencing discount to take account of the plea the fine will therefore be one of £66,000 plus the applicable victim surcharge.”

28 May 2024