A Scottish care home operator has been fined £450,000 for a health and safety offence following the death of a vulnerable adult at one of their care homes. The court found that failings on the part of the operator had led to the death of Margaret Glasgow, who drowned in the bath in her accommodation in 2016. Ms Glasgow, who was 59 and had severe learning difficulties, had awoken in her supported accommodation at Cherry Tree Court in Cambuslang and had, without the knowledge of her carers, run herself a bath.
The Richmond Fellowship Scotland, operators of the Cherry Tree Court, had pled not guilty to the charges that they had failed in their duty to not expose others to health and safety risks under s 3 of the Health and Safety at Work etc Act 1974. However, after a two week trial at Glasgow Sheriff Court, a jury found them guilty of what Sheriff Principal Turnbull described as a "catalogue of failures".
One large failure was the lack of sufficient technology to monitor whether Ms Glasgow got out of bed. Support workers were given a baby monitor that linked to her room in order to tell whether she got up during the night. However, the court found that this did not work because Ms Glasgow was too light-footed when she walked. Despite staff raising concerns multiple times after finding Ms Glasgow out of bed, the operator failed to put in place further measures such as door sensors or pressure mats.
The water to Ms Glasgow's flat was also supposed to be turned off every night, which would have prevented the incident. However, the court found that Richmond had failed to ensure all support workers knew that this was to occur and had failed to give sufficient training and materials to ensure all support workers knew how to carry this out.
How was the value of the fine reached?
This case is interesting as it is one of the first health & safety prosecutions since the introduction of the requirement for courts to follow the Scottish Sentencing Council guideline, "The Sentencing Process". These guidelines provide for a multi-stage process for determining an appropriate sentence in any criminal case. In this case, the Sheriff helpfully outlined his consideration of each stage.
For the first stage, the court required to assess the nature and seriousness of the offence. To assist in this, the guidelines of the Sentencing Council for England and Wales were referred to, as is permitted under the new Scottish guidelines. This led the court to arrive at an initial fine of £600,000: with a sentencing range of £300,000 to £1,500,000.
The guidelines then prescribe that the court should identify aggravating and mitigating factors. In terms of aggravating factors, the court identified the death of Ms Glasgow (although this was discounted at this stage as it had already been considered when determining the seriousness of the offence) and the fact that Ms Glasgow was a vulnerable person who was under the care of Richmond.
However, there were also a number of mitigating factors present, including: full co-operation with the authorities during the investigation; the company had no previous convictions; and the fact that a review following the incident had taken place which had led to a number of the issues identified being previously addressed. The Sheriff said ,on this last point, that the evidence of HSE that they were satisfied that such a tragic incident would not happen again was particularly compelling.
What should operators take away from this?
This was a tragic case, and acts as a reminder for all service providers to put in place adequate systems to ensure people's health and safety is not put at risk – recognising the need for processes and procedures which reflect individual's needs. Another reason care home operators should pay attention to this decision is the application of the new sentencing guidelines, especially the consideration of aggravating and mitigating factors. The mitigating factors demonstrate that a business' approach to the investigation and recommendations after the incident has occurred can have a positive impact on sentencing, as well as the primary benefit of improving procedures.
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