Monday, March 25th, 2024

HM Advocate v Lothian Health Board

Murdo MacLeod KC and Barney Ross, advocate, represented Lothian Health Board in respect of charges brought under health and safety legislation following two fatal, and unrelated, incidents that occurred in 2017 and 2021.

In the first incident, a patient died after jumping from a window in his room. HSE inspectors found that the window’s restrictors were inadequate and could be opened to twice the permitted extent. Additionally, there was no system in place for measuring the openings.

The second incident involved an elderly patient with delirium who was not subject to the appropriate level of observation. Following determined efforts to leave the ward, it was recorded that he should be placed under “one-to-one” observation. This was not followed. He was able to leave the ward unobserved by staff, and subsequently fell to his death in a different part of the hospital. There was also insufficient training on observation of patients, and no proper system for communication between staff.

Whilst acknowledging that the remedial steps taken ought to avoid such accidents reoccurring, the Sheriff described the failings of the Board as “basic and profound, in its most fundamental duties to its vulnerable patients.”

Having regard to the English sentencing guideline on health and safety, and noting the Board’s income was in excess of £2.4billion, the Sheriff was ultimately satisfied that he should follow Lord Beckett’s approach when dealing with the prosecution of Police Scotland, and treat the Board as a "large organisation" (rather than “very large”). Additionally, a substantial downward adjustment should be made to the level of fine that might be imposed on a commercial enterprise, particularly in the current financial climate.

The Sheriff said that for a commercial enterprise, he would have imposed fines of £190,000 and £800,000 respectively. Lothian Health Board was fined £45,000 and £175,000.

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