Appeal judges have found that a £20,000 fine given to a care home where an Alzheimer’s resident drank cleaning fluid from a bottle in his room was “unduly lenient”.
Lady Wise and her colleagues Lord Boyd and Lord Matthews quashed the penalty given to the owners of the Tigh-Na-Muirn home in Monifieth, Angus on Friday.
The judges, who were sitting at the Court of Criminal Appeal in Edinburgh, increased the fine to £60,000.
The court was sitting in a case which was brought to it by Crown lawyers.
Prosecutor Alan Cameron told the court in July 2023 how Sheriff Jillian Martin Brown didn’t properly consider the circumstances surrounding David Fyffe’s death in May 2020.
Mr Fyffe was aged 90 when he died from ammonia poisoning four days after drinking the liquid at Tigh-Na-Muirn home in Monifieth, Angus, three years ago.
The company responsible for the home, Tigh-Na-Muirn Ltd, pleaded guilty to breaching health and safety laws earlier this year at Dundee Sheriff Court.
The company, which has 120 staff, 59 residents, and has an annual turnover of up to £10m, admitted failing to ensure residents were not exposed to risks to their health and safety.
It failed to assess the risk of storing cleaning fluid in rooms and to ensure residents were not exposed to hazardous cleaning chemicals from March 20 to June 1 2020.
Sheriff Martin Brown said she was required to impose a sentence which was “no more severe” than was necessary.
She said that the incident took place during the Covid pandemic and that staff were acting in “extremely challenging circumstances” to keep residents safe and that the incident was an “isolated” one.
Mr Cameron told the appeal court in Edinburgh that the sheriff had given too much consideration to the “mitigatory” factors in the case and that she had taken the wrong approach to sentencing.
In a written judgment published on Friday, Lady Wise upheld the submissions made to the court by Mr Cameron.
She wrote: “The sheriff gave inadequate consideration to the degree of risk and the extent of the danger, and failed to recognise that the breach was not an isolated incident but continued over a period of time.
“This flawed approach has led to the imposition of an unduly lenient sentence. Accordingly, we must consider an appropriate level of fine of new.
“The offence occurred in a care home when the Covid-19 pandemic was at its full height and when care homes in particular were operating under enormous pressure.
“We also recognise that the offence occurred as a result of staff attempting to ensure that residents were kept safe by minimising items coming in and out of resident’s rooms and possibly spreading infection.
“Nevertheless, we consider that the fine imposed by the sheriff failed to fulfil sufficiently the relevant sentencing objective of punishment and deterrence.
“For these reasons, we shall allow the appeal, quash the sentence and substitute a fine of £60,000, reduced from a starting point of £90,000 in light of the early plea.”
Dundee sheriff court heard that Mr Fyfe, who also suffered from other health issues, had been confined to his room after contracting Covid-19.
Depute procurator fiscal Jane Hilditch said Mr Fyfe was found seriously unwell in his room by staff at the height of the first pandemic lockdown in May 2020.
Mr Fyfe was transferred to Ninewells Hospital for monitoring but gradually deteriorated the following day. He was moved to palliative care and died on May 31, 2020.
A post-mortem examination revealed that the primary cause of death resulted from the ingestion of an ammonia-based cleaning product called Steri-Germ.
Sheriff Martin Brown said she considered “mitigating factors” in her decision.
However, in the judgment issued on Friday, Lady Wise said the company pleaded to breaching health and safety laws between March 20, 2020 and June 1, 2020.
Lady Wise wrote: “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.
“The simple and effective procedure of keeping locked boxes outside the room of any resident who was isolating following Mr Fyfe’s death illustrates that had the proposal to store the substances in a resident’s en-suite bathroom been risk assessed in any meaningful way, a different result would have ensued.
“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.”
Lady Wise also concluded that if the company hadn’t admitted its guilt, the most appropriate fine to give it would be £90,000.
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