A prosecutor has urged appeal judges to overturn an “unduly lenient” fine given to a care home where an Alzheimer’s resident drank cleaning fluid from a bottle in his room.
Lawyer Alan Cameron told the Court of Criminal Appeal on Friday 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 the 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.
But on Friday, 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 this was the wrong approach.
The advocate depute told Lord Matthews, Lord Boyd of Duncansby and Lady Wise that they should impose a more severe penalty on the firm.
He added: “The sheriff relied too much on the mitigatory circumstances in the case and not enough on the aggravating circumstances in the matter.
“I say this has resulted in a disposal that is not only lenient.
“I invite the court to quash the sentence and to impose a new sentence is more appropriate in the circumstances of the case.”
Mr Cameron made the submission in an appeal made by the Crown to the Edinburgh based court on Friday.
Earlier this year, 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.
She said: “He had breathing difficulties and chest pain. An ambulance was requested by 999.
“Staff observed a cup with the residue of green liquid in it on the table. It was the same colour as the sanitiser. He was unable to confirm if he had taken any of the liquid.”
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.
Ms Hilditch said: “Cleaning chemicals were never usually kept in rooms and were locked in the cupboard, but in the circumstances of the pandemic and infection control they were in the Covid-positive rooms.
“It is not known why the bottle in his room had not been labelled. They failed to adequately assess the risk posed to residents from the storage of Steri-Germ in rooms.”
Sheriff Martin Brown said she considered “mitigating factors” in her decision.
She added: “No financial gain was made, nor intended to be made. The breach occurred by omission.
“While, with the benefit of hindsight, Steri-Germ ought not to have been stored in an accessible place in Mr Fyfe’s room, the management team did not have any cause to imagine that Mr Fyfe might deliberately or accidentally ingest the cleaning agent.
“Though he suffered from Alzheimer’s disease, his condition did not manifest itself in risky or erratic behaviour and he was able to undertake his own personal care independently, with minimal assistance.
“While the company fell short of the required standard, genuine efforts were being made in extremely challenging circumstances to respond to and react to a rapidly changing situation to keep residents and staff safe. The incident was an isolated one.”
On Friday, defence advocate Barry Smith KC told the court that the sheriff had acted correctly in the case and had followed appropriate tests when deliberating the punishment against his client. He said the penalty imposed on his client was appropriate.
He urged appeal judges to reject Crown requests for a more severe penalty to be imposed by the firm.
Mr Smith added: “In approaching the matter the learned sheriff has had proper regard to the circumstances of the case.”
Lord Matthews said he and his colleagues would take time to consider the submissions made to the court and would issue its decision sometime in the near future.