HMA v Nazareth Care Charitable Trust

Sheriff Thomas Welsh QC today (5 November 2019) fined Nazareth Care Charitable Trust £40,000 after the charity pled guilty to a serious health and safety breach by preventing an elderly woman from falling down stairs in which she later died from her injury.

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

“The offender in this case is a registered charity called Nazareth Care Charitable Trust which is also a limited company. The purpose of the charity is to provide and manage care homes for elderly people in the UK. As such, the charity is under a legal duty imposed by the Health and Safety at Work Act 1974, to put in place, adequate measures, so that persons residing in its care homes and under its care are not exposed to risks to their health and safety.

In this case the charity has pled guilty to a very serious breach of that legal duty by failing to take adequate precautions to prevent the risk of a person in its care falling down a flight of stairs in one of its care homes called Nazareth House, in Bonnyrigg. Nazareth House provides residential care for approximately 38 elderly people.

Turning to the facts of the case, on the evening of 16th May 2017 Sheila Whitehead, an 87 year old resident of Nazereth House, fell down a flight of 6 internal stairs which led from the ground floor of the care home to a boiler room. Mrs Whitehead died later that evening, as a consequence of severe head injuries she sustained in the fall.

The open mouth of the stairwell at the top of the flight of steps was fenced-off using only a piece of thick red corded rope with brass hooks at each end, which attached to fixed points at each side of the top of the stairwell. This barrier was not weight bearing and it is accepted by the charity that this amounted to, no more than a visual preventative measure which was an inadequate preventative measure, to guard against the risk of a person, such as an elderly resident of the care home, with impaired vision, falling down the stairwell.

I have seen photographs of the corded rope and the stairwell produced as part of the Crown narrative of events.

Mrs Whitehead had lived in Nazareth House for 4 years. She is very sorely missed and survived by her 2 sons. I was informed that, by May of 2017 her eyesight was badly deteriorating and she had declined invasive treatment for that. She walked with the aid of a Zimmer frame. Because of her poor vision the staff knew to watch out for her. Mrs Whitehead was known to be independent. At the time of her fall she was unsupervised. It is not clear where she was trying to go but I was told she may have been trying to find a toilet.

Turning from the facts, to the wider context of risk management, I was informed by Mrs Dow, Procurator Fiscal Depute for the Crown, under reference to online guidance, available to the public, provided by the Health and Safety Executive:

‘…….that falls within care homes are a well-established and foreseeable risk and that this risk is increased in relation to residents with deteriorating vision, impaired judgement and memory, altered mobility and increased frailty and dependence.

In this case, the staircase led from a corridor used by residents and it lacked an effective physical barrier that prevented residents from having access to the staircase. It would have been known by the Charity that many of the residents suffered from conditions and ailments that increased the likelihood of them suffering a fall.’

In relation to the state of knowledge of the charity before the accident and preventative measures taken by it after the accident I was informed by Mrs Duff, Counsel for the charity:

‘The red rope hung across the top of the staircase was used as a visual deterrent to restrict access to the staircase, however, it was not capable of bearing any weight and so was not an effective physical barrier. The presence of the red rope indicates that the risk the staircase presented had been identified, however, the control measure employed was inadequate particularly given the varying levels of care required by the residents there. This had been raised on a number of occasions previously by a member of staff, however, no action was taken.

In 2016 the Company engaged the services of an external health and safety consultancy firm. On 7 June 2016 a report was provided to the Company identifying and assessing the risks present at the premises as well as an action plan to manage those risks. The staircase was identified as a ‘High’ risk but the report referred to the lack of handrails rather than the red rope and the lack of any other physical barrier.’

Legislation provides that the only penalty which can be imposed in the case of breach of a statutory duty under the Health and Safety at Work Act 1974, in the case of a charity or limited company, is an unlimited fine.

Fixing the level of such a fine is not without difficulty. My function in this case is to impose a fine for such a breach, the purpose of which is to punish the offender charity, that created a risk of harm to others, for its failure to take adequate precautions, so that persons in its care, such as Mrs Whitehead, were not exposed to an avoidable risk, which in her case, tragically, proved fatal.

In identifying the appropriate level of fine I have used guidelines produced by the Sentencing Council. To implement the guidelines properly and arrive at an appropriate level of fine I require to identify what is called the ‘culpability’ of the offender and the ‘risk of harm Category’ created by the offender.

The guidelines identify 4 levels of culpability. These are low, medium, high and very high. With regard to level of culpability of the charity in this case for its failure to guard against the risk created, having heard counsel for the charity and the Procurator Fiscal Depute, I am satisfied that, by the continued use of a non weight-bearing red corded rope, which was a visual deterrent only, to fence off the mouth of the stairwell, in circumstances where a professional risk analysis commissioned by the charity dated 7 June 2016 had flagged up the stairwell as a high priority risk area, even though only in relation to the installation of handrails [which were not then installed] and also in circumstances where a member of staff had repeatedly raised safety concerns [which were ignored] about the use of the red corded rope as an appropriate barrier, on this staircase, then, in my judgement, the offending charity bears a high level of culpability for the harm which resulted.

Having set the level of culpability to be applied the guidelines require that I then categorise the risk of harm created by the offence in this particular case. There are 3 categories of harm created by the guidelines. These are; high likelihood of harm [harm category 1], medium likelihood of harm [harm category 2] and low likelihood of harm [harm category 3]. In judging what is called the initial and final harm category in the guidelines, I am satisfied that given the nature of the flimsy makeshift rope cord barrier adapted for use, its precarious location at the top of a flight of stairs, taken in conjunction with the known and obvious frailties of the residents of the care home, there was, in my judgement, a high likelihood of serious harm befalling residents of this care home, from the risk created, where the elderly residents obviously suffered from a variety of physical and cognitive impediments to a greater or lesser extent depending upon age, general health, fitness and cognitive capacity.  Accordingly, I find that harm category 1 [which is the highest harm category] is engaged as both the initial and final harm category which is appropriate for setting the level of fine. I considered, as I am bound to do in terms of the guidelines, making further adjustments to that assessment which would alter the ultimate level of fine but have decided that it is not appropriate so to do in this case, for reasons which relate to the charitable status of the offender organisation and its financial ability to pay a substantial fine, to which I now turn.

Having determined the level of culpability of the charity and the harm category of the offence, I then require to continue, in terms of the guidelines, to identify a monetary starting point and financial category range for the fine. This is an important step in the guidelines because understandably the size of the organisation must affect the ultimate level of the fine. To do this I require to assess whether the charity is, in terms of the guidelines, properly classified as a very large organisation, or a large organisation which is described as an organisation with a turnover or equivalent of £50 million or more, or a medium organisation with a turnover or equivalent of between £10 million and £50 million, or a small organisation with a turnover of between £2 million and £10 million, or a Micro organisation with a turnover of not more than £2 million.

I stress this has not been easy because, in this case, I am dealing with a charity, as opposed to a profit making organisation.

I have had access to and examined 3 years audited accounts of the charity from 2015 and the draft accounts for the 2018/2019 accounting period.

In this case the charity has a turnover or equivalent which would place it in the category of a medium sized financial organisation, as the guidelines classify organisations. The starting point for a fine in terms of the guidelines in that type of case in which the offender bears high culpability and the risk of harm created falls within harm category 1, is £950,000. The range of fine suggested by the guidelines depending on the circumstances, in such a case, is from £600,000 at the lower end of any potential fine to £2,500,000 at the upper end.

In my opinion, these sums are excessive and disproportionate and are not helpful in relation to fixing an appropriate fine for a charity that pleads guilty to a breach of statutory duty.

Having heard counsel for the charity, I am persuaded that given the low disposable income of this charity, notwithstanding its high turnover, it ought to be treated, in the round, so far as the guidelines are concerned, as what is called “a micro organisation” which is the smallest size of financial organisation for which sentencing guidance is offered.

For such a micro organisation, the starting point for a fine in a case in which the offender bears high culpability and the risk of harm created is Harm Category 1, is £160,000. However that figure can be adjusted up or down according to the context of the offence and I propose to make downward adjustments, by taking account of a number of factors which include, the immediate voluntary remedial steps taken by the charity to remedy the failure which resulted in death and the full co-operation shown by the charity when assisting the Health and Safety Executive and the Crown in their inquiries. I also attach weigh in this adjustment exercise to the fact that the charity has never before so offended and the fact that in response to this awful tragedy the charity sent 24 managers and members of regional support teams on an Institute of Occupational Safety & Health (IOSH) Managing Safely Course in 2017. A further 12 managers will have been trained by the end of this year. Further, immediate steps were taken to install locked doors with keypads at staircases across all Nazareth Care premises. Further, in July 2018 Nazareth Care appointed a Health and Safety and Compliance Manager. In addition annual audits are carried out in Health & Safety, at all 17 Nazareth facilities in the UK.

These factors clearly demonstrate a very responsible attitude taken by those controlling the charity to address what happened and ensure it never occurs again. I also fully accept that the charity and those who work within it are genuinely remorseful for what has happened on their watch. Taking all these circumstances into account I am satisfied that the starting point for the fine ought to be reduced to £100,000 which is the bottom of the entire range available to punish a high level of culpability arising from the creation of a risk of harm which is serious enough to include death, by a micro organisation.

Importantly, having identified a starting point for the fine, the guidelines provide that I am then required to stand back, as it were and make a further adjustment or recalibration to balance the need to punish the offender for committing the offence against the financial ability of the offender to pay a fine having regard to the impact payment of a substantial fine may have on the ability of an offender, like a charity, to continue to function properly as well as pay the fine. The guidelines provide that in the case of a charity the fine should 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.

In this case, I accept the net sum available for payment of the fine based on the accounts for 2017-2018 was £14,393 and in the 2018-2019 draft accounts is £73,773. I entirely accept the submission made by Mrs Duff that any money taken from the charity to pay a fine is money which would otherwise be spent on vulnerable and needy residents as opposed to being potentially made available as profit for shareholders dividends, as would be the case, if I were dealing with a profit making organisation.

Therefore, having regard to the limited real income this charity has to pay a substantial fine balanced against the need to impose a fine which will bring home to the trustees and directors of the charity the need to comply with health and safety legislation I will limit the fine imposed to £60,000.

I turn now to the timing of the guilty plea and sentencing consequences that flow from that. Every offender is entitled to a discount for the utilitarian value an agreed early plea of guilty produces to the administration of justice. In this case, a potentially lengthy and distressing trial has been avoided by the offender admitting guilt and pleading guilty. Accordingly, I will apply the standard discount for such a situation and reduce the fine by one third to £40,000.

The guidelines also provide that in considering the ability of the offending organisation to pay any financial penalty the court can take into account the power to allow for payment by instalments. In this case, I will allow the fine to be paid at the rate of £10,000 per year for a period of 4 years.”