HMA v Ark Housing Association Ltd

Sheriff Norman McFadyen fined Ark Housing Association Ltd. £75,000 at Edinburgh Sheriff Court after the company pleaded guilty to health and safety breaches relating to the death of a supported housing resident who was scalded in the bath.

 

On sentencing, Sheriff McFadyen made the following statement in court:

“Ark Housing Association has pleaded guilty to an indictment charging them with contravention of sections 3(1) and 33(1)(a) of the Health and Safety at Work etc Act 1974 on 26 June 2013 at a property owned by them at 17 Kennedy Court, Haddington, in respect of their failure to ensure that residents for whom they provided support for living were not exposed to risks to their health or safety in relation to bathing, in particular by failing to provide adequate training, instruction and supervision to employees engaged in bathing residents and to assess the risk of scalding, in consequence of which Joseph Hobbin, a resident there sustained scalding injuries while being bathed by an employee of the company from which he later died.

Joseph Hobbin was aged 60 when he died. He had multiple health problems, suffering limited mobility, cerebral palsy and epilepsy and he had very limited ability to communicate. He had lived most of his life in a care environment, initially in Goggarburn Hospital, Edinburgh, later in a property managed by the accused company, Ark Housing Association Ltd and finally at 17 Kennedy Court, Haddington, where he and three other residents were accommodated in a property owned and managed by Ark, who were also contracted by the local authority to provide extensive 1 to 1 support for him and sleepover support shared with the other residents.

Despite his many problems, Mr Hobbin had quality of life. I was told he enjoyed a joke and that he particularly enjoyed being in the water and this was accommodated by regular baths and twice weekly hydrotherapy sessions. It is clear that his care generally was of a high standard and took account of his personal preferences and quality of life as well as his complex needs. That was indeed apparent from the Crown’s narrative and was amply demonstrated by the documents to which Mr Gray, for Ark, referred me. The company had plainly gone to considerable length to address risk in relation to Mr Hobbin’s particular disabilities and day-to-day needs.

Nonetheless, tragically it was while he was being assisted to have a bath on 26 June 2013 that Mr Hobbin sustained catastrophic injuries, which led to his death. His support worker had run the bath and tested the temperature at the tap end with his pinkie, before assisting Mr Hobbin into a bath seat, which itself was intended to assist him safely into the bath. At this point it appears that he took an epileptic fit and his legs entered the water. The support worker, who was concerned that the water might be too hot, was unable to support his head and body as well as his legs.  The water clearly was far too hot and Mr Hobbin rapidly sustained the injuries from which he succumbed two weeks later.

Although it was not clear from the narrative, I assume that if the support worker was concerned, despite testing the water, that it may be too hot, he would have addressed that before lowering Mr Hobbin into the water, but he had plainly commenced the manoeuvring of Mr Hobbin by virtue of the bath seat at the stage when he began to fit and was unable to control Mr Hobbin’s contact with the water.

Noting as I do the care with which various aspects of risk had been assessed and addressed it seems all the more puzzling that only the most cursory mention was made in the company’s risk assessment material of the need to check that water was not too hot and that nothing was said about how that was to be done. It may be that this was regarded as so much a matter of common sense as not to require specification in the company’s documentation or specific training of its staff, but quite apart from the identification of risk of scalding during bathing and showering in HSE and industry guidance, any parent of young children – and indeed most parents-to-be – will be only too aware that testing temperature by pinkie finger-tip at the tap end is not going to give a reliable indication of the warmth of water in a deep bath;  in this case the bath was estimated to be three quarters full.  And indeed it appears that the support worker did have concerns that the water might be too hot.

The risks to vulnerable adults, especially those with poor mobility and communication skills are in some ways analogous to those of infant children, albeit in other ways more significant because infant children can more readily be lifted or moved from danger. In the case of Mr Hobbin it was only when a second support worker responded to Mr Hobbin’s support worker’s call for help that the bath could be drained.

It is clear that not only was Mr Hobbin exposed to the risk of scalding, which of course occurred, but that risk extended to the many vulnerable adults in the care of Ark Housing Association. This has been recognised in the company’s response to this accident, in the completion of a survey of all of its properties, the fitting of thermostatic mixer valves in all relevant properties and in working with private landlords to install such valves where necessary, as well as in the introduction of what was described as a formalised method for filling a bath and checking temperature, with appropriate training for all staff and provision of suitable thermometers.

The factors to be taken into account when sentencing in such cases are well-established:

  • Where death occurs as a consequence of the breach, that is an aggravating feature, multiple deaths being viewed even more seriously than single deaths.
  • A breach with a view to profit is a serious aggravation.
  • The degree of risk and extent of the danger and in particular whether this was an isolated incident or one continued over a period are relevant factors.
  • Mitigation will include (1) a prompt admission of responsibility (2) steps taken to remedy deficiencies and (3) a good safety record.
  • The resources of the offender and the effect of a fine on its business are important.  

Any fine should reflect the means of the offender but should not stand in any specific proportion to turnover or profit. The objective of the fine should be to achieve a safe environment for the public and bring that message home and in the case of a commercial concern, which this was not, that message requires to be brought home not only to those who manage the company, but also to those who own it as shareholders.

The courts will note the guidance for such cases in England and Wales, which acknowledges that charitable bodies providing public services may be treated differently from commercial enterprises, as regards the level of fine. In such a case the effect upon the provision of services to the public will be relevant and although the organisation must be treated the same as a commercial company so far as concerns the standards of behaviour to be expected and must suffer a punitive fine for breach of them, it has been stated that a different approach to determining the level of fine may well be justified, particularly if a very substantial financial penalty will inhibit the proper performance by such a body of the public function that it has been set up to perform.

The guidelines for England and Wales note that where the offence is shown to have caused death, the appropriate fine will seldom be less than £100,000 and may be measured in hundreds of thousands of pounds or more.

As against that background, I require to select an appropriate fine in this case. The Crown identifies as an aggravating factor that death resulted from the breach and that is of course accepted. The Crown and defence identify mitigating factors in the full co-operation of Ark with the Health and Safety Executive investigation, the immediate steps the company took to remedy its failing by installing thermostatic mixer valves where necessary, providing thermometers, training staff and implementing written instructions for bathing and showering and the good health and safety record of Ark, which has no previous convictions and no relevant previous advice.

It is, of course, for the court to determine what aggravating and mitigating factors are present. It seems to me that, in addition to the death of Mr Hobbin, the degree of risk to which other vulnerable clients of the company, of whom there were clearly a significant number is a relevant aggravating factor. It is often said that an accident was waiting to happen, but given the lack of systems, training and equipment it is indeed surprising in this case that there had not been a previous incident. I do not think that the events of 26 June 2013 can be said to be an isolated breach, if that is what Mr Gray meant when he submitted that the breach was an isolated one, although I accept that the failure to address the risk of scalding in the more general sense was apparently an isolated failing.

On the other side of the equation, I readily recognise that the full co-operation of the company, its quick remedial action and its previous good record are mitigating factors, although given its public service role and the need to maintain the confidence of public sector client organisations it would be surprising if the company had not co-operated fully and taken swift remedial action.

As I have noted, it is clear that Ark did a great deal to address the risks to Mr Hobbin and his needs and the paperwork which I have seen is eloquent of a caring and sympathetic approach to clients and I think that general approach has also to be weighed in the balance as a mitigatory factor.

Nonetheless, the company did, for whatever reason, have a blind spot as regards the risks of scalding, especially to vulnerable adults and that requires to be reflected in the penalty to be imposed.

Taking account of the available guidance, and also taking account of the size of the operation and the financial information which has been made available to me, had Ark been a commercial undertaking I am satisfied that the appropriate starting point would have been a fine of £150,000. The question then arises as to what extent that should be reduced in recognition that the company is a charity providing a public service. The existing guidance does not elaborate on how the level of fine might be differentiated for such an organisation. The Sentencing Council for England and Wales has published new guidance, which will be effective there from 1 February 2016 and which has in any event yet to be considered by the Scottish courts. It was not suggested that I should refer to that guidance and I do not do so, other than to note that it explicitly states that a fine on a public or charitable body will “normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services”. That statement is, I believe, consistent with the approach which Mr Gray invited me to take in the case of Ark.

I was shown financial accounts for the company for the last three financial years and a recently prepared internal financial report and forecasts as at 30 September 2015.  It is clear that the company is one with a significant turnover – in the region of £19 million in the last two financial years – and a reasonably healthy balance sheet (even when the housing stock is taken out of consideration), but the care and support side of the undertaking is running on and projecting an operating deficit, which I was told arises largely from reduction in local government funding and a substantial fine will have some adverse effect on the undertaking. I was also told that the regulatory regime is such that the company cannot transfer funds from the housing side of the business (which is showing a surplus) to the more challenged care and support side.  In the event that a fine required to be enforced by civil diligence against the company I doubt that such niceties would apply, since any diligence would be executed against assets of the business as a whole, but quite apart from how the company would require to account for that within its own structure and regulatory regime, I appreciate that the company would in any event wish to meet any fine without enforcement and to comply with its regulatory regime. Indeed, I was told that the company had prudently made financial provision for payment of a fine.

In this case, taking account of the nature of the offence and the status and financial position of the company, the appropriate starting point for a fine is £100,000. The plea of guilty was tendered to an accelerated indictment under section 76 of the Criminal Procedure (Scotland) Act 1995 and I do require to give Ark appropriate credit for an early plea. Given the timetable of reporting of the case and disclosure I do not consider that that discount can be at the higher end, but nonetheless the Crown has not required to serve a full trial indictment or cite witnesses and a plea of guilty undoubtedly has utilitarian value. In the circumstances, in recognition of the timing of the plea of guilty, the fine will be £75,000.”