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HMA v Grampian Health Board
Aug 8, 2024
On sentencing, Sheriff McLaughlin said:
"No size of penalty can adequately reflect or compensate for the loss suffered by Mr Mulsant’s family as a result of this tragic incident. They ought reasonably to have been able to assume that Mr Mulsant was safe in the Huntly Ward from the risk that he otherwise posed to himself. It is difficult to comprehend fully the devastation they must have felt and must continue to feel at his loss, which was clearly preventable and the impact of which I can only begin to imagine.
I have considered carefully the circumstances narrated by the Procurator Fiscal and the thoughtful submissions made on behalf of the health board by Mr Gray. I have also been referred to a statement from the Director of Finance of Grampian Health Board about the Board’s parlous financial state.
I have considered the Scottish Sentencing Council’s guidelines on the sentencing process and on the principals and purposes of sentencing and, as our High Court has advised us to do, have had regard to the guidelines in relation to Health and Safety cases promulgated by the sentencing council of England and Wales.
I have also been referred to the sentencing statement made by Lord Becket in the 2021 case of HMA v PSOS.
As in that case the English guidelines that we are accustomed to considering in relation to cases against commercial enterprises do not neatly fit with the circumstances of the present case.
It is clear from the narration provided that there is a constant need on the Huntly Ward to assess and reassess risk and to find an appropriate balance among the restrictions of being on a secure ward, clinical interventions, patient safety and encouraging patient autonomy and independence as described in the narration. This is far from being an exact science. It is clear that there were regular assessments and risk assessments undertaken. Indeed as we were told, there was a search specifically undertaken of Mr Mulsant’s room to remove items that might be capable of causing harm. The failing here was that the danger posed by plastic bags to patients such as Mr Mulsant was simply not recognised and that there was no national guidance to assist.
Having regard to the circumstances narrated to me, I agree with Counsel’s assessment of where this case falls in terms of levels of culpability and harm. Significant efforts were made to ensure Mr Mulsant was safe, as narrated by the PF, but in this case they clearly proved inadequate. The offence exposed Mr Mulsant and other patients on the ward to the risk of harm. And the most catastrophic harm possible was caused to Mr Mulsant. Having regard to all of that, I assess that this case falls within harm category 1.
Considering the guidelines, such an assessment would suggest a starting point in considering the appropriate fine of £300,000 and a range of between £180,000 and £700,000.
The board does not have convictions nor were any other aggravating factors present in this case. On the other hand there is substantial mitigation in the actions taken by the board in the aftermath of this tragic incident, both at local level and in its significant contribution to the development of national guidelines, all designed to prevent any repeat of such a tragedy.
This all might, then, indicate a headline fine of £180,000.
But, as I have said the court is directed not to apply these guidelines in a mechanistic way. I must have to have regard to the fact that Grampian Health Board is not a commercial organisation. It exists to provide health care to the people of Grampian. Notwithstanding its high level of budget, it is clear that that is all accounted for and more in the provision of those services. The Board is in a position of overspend on its budget. The Board does not have reserves and any fine that I impose will have to be met from funds that would otherwise be applied to the provision of healthcare services.
Clearly the offence cannot go unpunished; the penalty must suitably reflect the level of culpability and underline the importance, in particular in an organisation charged with protecting life and health, of the need to comply with Health and Safety Legislation and the protections it seeks to provide.
But given the significant impact on provision of services that a fine will have on the Board, I require to reduce that headline figure substantially. Taking account of that I reduce the headline fine by half, to £90,000. And talking account of the guilty plea at the earliest opportunity I reduce that figure further to £60,000 to which will be added a victim surcharge of £4,500, all to be paid within 2 months and recoverable by civil diligence."
8 August 2024