NOTE: This article was updated on 23 May 2019 to take account of the sentence decided by the court at the hearing on 17 April 2019.
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.
Sentencing
A sentencing hearing was initially fixed for February 2019, then rescheduled to 17 April 2019. At that hearing, the court imposed a fine on the company of £300,000. It was also ordered to pay the HSE's costs (about £65,800), and a victim surcharge (£120).
In handing down sentence, the judge noted that he had taken account of the company's health and safety record, which was noted as "good"; the fact that the company had pleaded guilty to the charge; and the steps it had taken within the business following Amy's death.
The case is an example of how the Health & Safety Sentencing Guidelines, introduced in 2016, may be applied when deciding the penalty for a health and safety breach. The Guidelines calculate fines based on turnover, rather than profit. According to the company's most recent accounts lodged at Companies House (2017), the company had a turnover of over £133m. A fine in the region of £2m was therefore anticipated.
However, the comments of the judge demonstrate how other factors may be taken into account. The Guidelines allow for a range of considerations when deciding what level of fine is appropriate, including the severity of injury and the blameworthiness of the business - but also other factors such as any steps taken to improve its policies or procedures after the incident, and the company's history of compliance (or non-compliance) with health and safety law.
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 fines with the intention that the penalty will have a "real economic impact" on the offender. There has generally been a trend for higher fines: 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. In February, Edinburgh Sheriff Court fined a contractor £600,000 after an agency worker was run over and killed by a dumper truck. This case is an example of how the other factors referred to in the Guidelines may come into play - and make a significant difference to the level of fine imposed.
If you have any questions about this article, please get in touch with Laura McMillan and Alison McAteer.
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Practice Development Lawyer
