Health & Safety

This tragic case involving a healthcare company charged with breaching health & safety legislation after the death of a young patient in its care, may have been the “first prosecution of its kind”.

Most health & safety prosecutions involve injured workers – usually employees – but this case serves as a reminder that an organisation’s duties under health & safety law extend to others that may be affected by their actions.

Background

In August 2012, 14-year-old Amy El-Keria was admitted to Ticehurst House, a Priory hospital in East Sussex, as an urgent referral from an NHS Trust. She had complicated healthcare needs and a history of attempts of self-strangulation. On admission, Amy was assessed as “high-risk” and placed on observation every 15 minutes.

The inquest into Amy’s death noted that over the next three months, Amy was restrained and sedated at times, and that on 12 November 2012 Amy told staff she wanted to commit suicide. Her monitoring schedule remained at 15 minute intervals, and she was otherwise allowed to remain unsupervised. Later that day, she was found unresponsive in her room. She had used a football scarf to hang herself.

Jury’s verdict

At the inquest, a jury found that Amy died of “unintended consequences of a deliberate act, contributed to by neglect”. In particular, it was noted that:

  • Staff levels were inadequate, and a lack of one-to-one time was a “significant” cause of or contributor to Amy’s death;
  • Risk assessments were not carried out appropriately;
  • Staff missed chances to remove the scarf before the tragedy, and did not assess the risk of Amy being able to commit suicide in her room; and
  • A delay in the scheduled check on Amy that evening contributed “significantly” to her death.

Evidence was also heard by the court that on finding Amy, there was a delay in staff delivering CPR and that an ambulance was not called for approximately 10 minutes. An oxygen mask which was applied before paramedics arrived did not fit correctly, and on transporting Amy to the ambulance, the stretcher would not fit in the hospital lift and Amy had to be carried on a body board.

Prosecution under Health and Safety at Work etc Act 1974

At court on 9 January 2019, the Priory plead guilty to a charge under section 3(1) of the 1974 Act, in respect of failing to discharge its duty as an employer to ensure people other than its employees were not exposed to risk.

Substantial fines

A sentencing hearing initially fixed for February has now been scheduled for April 2019. It is understood that the fine is expected to be at least £2.4m.

The case also shows the ongoing trend of increased fines for breaches of health & safety law. The introduction of the Health and Safety Sentencing Guidelines in England and Wales in 2016 provided a basis for greater consistency with health and safety fines; taking into account a range of factors including the severity of injury, the blameworthiness of the business – and, crucially, its annual turnover.

While the Guidelines are not binding in Scotland, courts north and south of the border have used the framework provided by the Guidelines to impose higher fines, with the intention that the penalty will have a “real economic impact” on the offender. In January, Topshop owner Arcadia Group Ltd was sentenced in Glasgow to a £450,000 fine, after a child was injured by a barrier in one of its stores. Earlier this month, Edinburgh Sheriff Court fined a contractor £600,000 after an agency worker was run over and killed by a dumper truck.

We will no doubt continue to see a similar approach in the future.

If you have any questions about this article, please get in touch with Laura McMillan and Alison McAteer.

alison mcateer

alison mcateer

Solicitor at Brodies LLP
Alison, a solicitor in Brodies Insurance & Risk team, deals with claims involving road traffic accidents, public liability and employer's liability. She also has experience in dealing with health and safety matters, clinical and medical malpractice claims.
alison mcateer