St David’s Care Forfar Ltd pled guilty to a contravention of sections 3(1) and 33(1)(a) of the Health and Safety at Work etc. Act 1974 following the death of resident Georgina Norrie. The sheriff imposed a fine of £100,000, discounted from £150,000 on account of the guilty plea. The fine was challenged as disproportionate given the small size of the company and level of culpability.

The appeal was heard in the High Court of Justiciary by Lord Pentland and Lady Wise. Culross, advocate, appeared for the appellant and Trainer, advocate depute ad hoc, for the Crown.

Exposed to danger

The appellant company operated as a privately owned care home for a maximum of 22 residents. The directors of the company were a married couple, both formerly registered nurses. Prior to the death of Mrs Norrie, the home had been consistently highly scored in inspections and had no complaints upheld against it.

In the early hours of 12 January 2017, the deceased, who suffered from learning difficulties and advanced dementia, managed to leave the building via a fire door that was not alarmed and became locked out, causing her death from hypothermia. Her individual risk assessment had stipulated that a motion sensor in her room should be active to alert carers to any movement during the night. However, in the six months prior to her death the sensor had not activated as frequently and often did not activate at all when she left her room.

A check conducted at 0200 disclosed that the deceased was in bed and that her motion sensor alarm was switched on. However, a further check at 0610 revealed that she was not in her room. She was found by carers still conscious and breathing, but despite efforts to warm her up she was declared dead by paramedics at 0714.

In determining sentence, the sheriff at Dundee considered that the appellant was in breach of a position of trust and knew that the deceased’s behaviour patterns were likely to expose her to danger. Further, it had knowingly allowed a control mechanism crucial to her safety to degrade. Counsel for the appellant submitted that the sheriff had not taken into account mitigating factors. The fine imposed indicated a very high culpability level, which was not justified in a case where the sheriff had not found the appellant had a flagrant disregard for the law.

Gross failing

Lord Pentland, delivering the opinion of the court, began: “The sheriff analysed all the relevant features of the case and came to a well-reasoned conclusion. He assessed the level of culpability in light of several indisputable aggravating features: in particular, the fact that the failure properly to assess risk led directly to the deceased’s death; that she was a highly vulnerable person for whose specialised care in a safe environment the appellant was wholly responsible; that the appellant failed adequately to address the obvious risks to her safety of leaving her room at night; and the fact that the absence of an alarm on the dining room door was, on any reasonable assessment, a gross failing.”

He continued: “The sheriff took full account of all the mitigating considerations. In selecting the level of fine he adopted a nuanced approach based on a sound analysis of the appellant’s financial position given the limited information provided to him.”

Addressing the level of culpability, he said: “The [appellant’s] position was that there was nothing to alert the carers on duty to the fact that the deceased had left her bedroom, gone to the dining room and used the dining room fire door to leave the building. There was a significant risk that the deceased would behave in this manner, as the appellant was or should have been well aware. All this points to a high or very high level of culpability on the part of the appellant.”

Lord Pentland concluded: “We consider that the fine imposed by the sheriff properly fulfilled the relevant sentencing objectives of punishment and deterrence, that it will have a real economic impact on the appellant, and that it is not in any sense disproportionate in light of the appellant’s financial position. When the Definitive Sentencing Guideline of England and Wales is used as a cross-check against the sentence imposed by the sheriff it can be seen that the fine selected was broadly in line with the level of fine that would be appropriate were the Guideline to be applied to the circumstances of the present case.”

The appeal against sentence was therefore refused.