Tigh-Na-Muirn Ltd pled guilty to the statutory offence after it was found that a bottle of ammonium-based cleaning liquid was left unattended in the bathroom of resident David Fyfe, who subsequently ingested a quantity of the liquid and died from conditions he developed as a consequence. A fine of £30,000 was imposed by the sheriff, discounted by one third in light of the guilty plea.

The appeal was heard by Lord Matthews, Lord Boyd of Duncansby, and Lady Wise. Cameron, advocate depute, appeared for the Crown and B Smith KC for the respondent.

Low culpability

The respondent operated a private care home registered for a maximum of 59 users, to which the deceased was admitted in 2019 when he was aged 90 and suffering from Alzheimer’s disease and other conditions. On 27 May 2020, which was the final day of a Covid-imposed isolation period for him, he presented to staff suffering from breathing difficulties. An inspection of his room revealed a paper cup with green residue on his table alongside a plate of food.

A post-mortem examination revealed the primary cause of death to be acute tracheobronchitis and pneumonia, resulting from the ingestion of ammonium-based cleaning product. Due to the circumstances of the pandemic and in the interest of infection control, staff had been instructed that cleaning products issued to Covid positive rooms, including Mr Fyfe’s, were to be stored on the en suite bathroom cabinet.

The risk assessment procedure prepared for Mr Fyfe’s infection control plan did not mention any hazard to him by the storage of chemicals in his room. The respondent therefore admitted there had been a failure to conduct an adequate risk assessment. In her sentencing report, the sheriff considered the level of harm to be extremely high, but that culpability was low given the isolated nature of the incident and the genuine effort made by staff to respond to the challenging circumstances caused by the pandemic.

On behalf of the Crown it was submitted that the sheriff erred in assessing the respondent’s culpability as low. The fact that genuine efforts had been made to keep residents and staff safe during the pandemic could not be regarded as a factor relevant to the degree of risk and to the extent of danger. The sheriff had conflated the risks presented by Covid-19 with the failures to which the respondent had pled guilty and had erred in determining the incident to be isolated, representing failings lasting over 2 months.

Flawed assessment

Lady Wise, delivering the opinion of the court, began by observing: “The sheriff seems to have overlooked, or at least not placed any emphasis on, the period of the libel. For two and a half months the company breached a standard that they had hitherto adhered to, namely of ensuring that residents were protected from any risk of ingesting hazardous substances by keeping these in a locked cupboard. Accordingly, the sheriff was wrong to categorise the incident as an isolated one as there was a continuing breach.”

She continued: “The direction given to the care home required them to consider how best to isolate a COVID-19-positive resident while minimising any other risks to health and life. They failed to make any appropriate assessment for the whole period. The sheriff’s assessment failed to take sufficient account of the fact that the failure led directly to Mr Fyfe’s death. Further as he was a vulnerable person with reduced cognitive function with far less staff contact because of the requirement to isolate, there was a heightened responsibility to assess any risk arising from his isolation and changed hygiene practices. All of these factors ought to have been taken into account.”

Regarding the sheriff’s approach to culpability, Lady Wise said: “The unprecedented circumstances in which care homes were operating and the genuine efforts TNM were making generally to keep their residents safe was mitigatory, but the sheriff placed undue emphasis on it in assessing culpability, commenting that they had fallen short ‘on this occasion’. The repeated references to this being a single breach are indicative of a flawed approach to culpability assessment. Accordingly, we disagree that culpability in this case could properly be assessed as low.”

Assessing the appropriate level of sentence, she concluded: “Having regard both to the applicable principles and the English Guideline, we assess culpability in this case as at least medium. The ongoing failure to assess the obvious risk of changing a system of locking away a hazardous substance and placing it within reach of residents was serious. Indisputably significant harm was caused in this case as death occurred. So far as assessing the risk of harm is concerned, while the sheriff may have been correct to regard this as no higher than Category 2, it can be seen as rather at the higher end of that category.”

The appeal was therefore allowed, with the original fine quashed and substituted with a fine of £90,000, reduced to £60,000 in light of the early plea.