At Haddington Sheriff Court, Sheriff Braid imposed a total fine of £32,000 on Lothian Health Board after it pled guilty to contraventions of the Health and Safety at Work Act 1974

On sentencing Sheriff Braid made the following statement in court:

“Lothian Health Board has pled guilty by section 76 indictment to two contraventions of the Health and Safety at Work Etc Act 1974 (“the 1974 Act”).   In brief, charge 1 is a breach of the general duty towards employees imposed by section 2 of the 1974 Act, and charge 2 is a failure to report a notifiable incident timeously.

The incident which led to both charges was the assault of an employee at Herdmanflat Hospital, Haddington, who was conducting a home visit, committed by a patient previously diagnosed with schizophrenia and who was known to constitute a risk.  Thankfully, although the employee suffered some lasting side-effects, the physical injuries sustained were not serious and the Crown acknowledge that the incident could have been more serious.  

The approach to sentence in health and safety cases is conveniently summarised in Dundee Cold Stores v HMA.  The court must first assess the gravity of the offence; and then adjust that up or down depending on any aggravating or mitigating factors. 

In assessing the gravity of charge 1, I take into account that Lothian Health Board had generic policies for lone working, and violence and aggression, and that the principal fault lay with the local departmental manager in charge of the Community Mental Health Team at Herdmanflat, who, over a period of months following the setting up of the team, had not carried out any risk assessment, had failed to ensure that training (which was available through in-house trainers employed by the Board) was adequate and up-to-date, and had failed to provide a safe system of work for home visits.  As is accepted by the board, given the client-base of the Community Mental Health Team the risk of violence and aggression was readily foreseeable, and these failures by the manager were serious ones.  The Board’s own culpability lies primarily in the failure to audit that its procedures were carried out, and in the failure to check that the Team’s risk register had been properly completed, when patently it had not.   However, that must be viewed in the context of the fact that the breaches were restricted to one department in one hospital out of 28, and are not indicative of any systemic failure on the part of the Board.  Further, as already pointed out, the incident in this case could have been more severe.

Insofar as aggravating factors are concerned, none are present.  There was no death, nor any failure to heed warnings or advice from the HSE, nor any cost-cutting at the expense of safety.

Conversely, I have identified the following mitigating factors:

(1)  A prompt acceptance of responsibility by the Board;

(2)  A high level of co-operation with the investigation;

(3)  Genuine efforts were made to remedy the defects.  These were explained in some detail by Mr Gray and, in short, include consideration being given to visits in pairs, and a detailed set of procedures to ensure that no attack can go undetected;

(4)  A good health and safety record – this is the Board’s first conviction.

(5)  A responsible attitude to health and safety.  I was told that the NHS as a whole was among the first employers in the UK to introduce policies for lone workers, and that the Board’s policy was put in place in 2007.  Following this incident, an inquiry was promptly instigated. 

(6)  The significant contribution made by the Board to the welfare of the public.

In relation to the level of fine to be imposed, while the Board has very substantial assets, I accept  Mr Gray’s submission, under reference to the Sentencing Guidelines Council Definitive Guideline (for Corporate Manslaughter & Health and Safety Offences Causing Death) paragraph 19(v), and the English case of R v Southampton University Hospital Trust,  that in imposing a fine upon a public organisation, the court should take into account that any imposition of a fine will of necessity reduce the money available to be spent on providing services to the general public. 

Taking all of these factors into consideration, I have reached the conclusion that an appropriate starting point is a fine of £30,000. 

Turning to charge 2, this can be categorised differently from charge 1, in that it is not a breach which of itself compromised health and safety but is a breach of a regulation designed to ensure the prompt reporting of incidents in order that they might be promptly and effectively investigated by the HSE.

While I have accepted that a large part of the culpability in relation to charge 1 rested at local level, the same cannot be said of charge 2, which I was told arose due to a combination of reasons including the switch-over from a paper-based system to a computerised one, and the total number of incidents which had to be considered – being 600 in any 3 and a half week period, or 8,000 a year. However, it is axiomatic that the larger the organisation the greater the number of incidents which might have to be reported, and it is incumbent upon any organisation no matter how large or small to ensure that sufficient resources are made available to ensure that incidents which they are legally obliged to report, are reported.   It is not mitigatory to blame a computer system, or teething problems, or the number of incidents, since it is up to senior management to ensure that the introduction of a new computer system does not impede its compliance with its obligations; and to ensure that sufficient resources are made available to enable statutory obligations to be complied with.  While I accept that there was no intention to mislead the authorities, and the failure to report was not deliberate, it remains the case that no report was in fact made for at least 8 months, which is very much longer than the maximum of ten days allowed by the regulations, which inevitably impeded the HSE’s ability to carry out an investigation; and I do regard this as a serious breach of the Board’s obligations. 

Again there are no aggravating factors, albeit the offence might not have been committed had more resources been devoted to the reporting system.  Insofar as relevant, I take the mitigatory factors already mentioned into account, although a prompt acceptance of responsibility is perhaps less relevant when the very matter complained of is an 8-month delay.

In the event I propose to take a starting point in relation to charge 2 of £15,000.  

As for discount, there was a clear utilitarian benefit to the pleas, more so  in relation to charge 1 than in relation to charge 2. That being so, and recognising also that the case did not, for whatever reason,  resolve for more than two years after it was first reported to Crown Office, I consider that a global discount of one third is too high.  I could discount both fines by the same, lower, percentage but instead I propose to apply a discount of one third to charge 1, and of one fifth to charge 2, resulting in fines on each charge of £20,000 and £12,000 respectively.  That is an overall discount of just under 30% which I consider reasonable and appropriate in all the circumstances”.