Appeal judges have trebled a £20,000 fine given to a Tayside care home where a resident died after drinking Covid-19 cleaning fluid from a bottle in his room.
Lady Wise, Lord Boyd and Lord Matthews quashed the “unduly lenient” penalty given to the owners of the Tigh-Na-Muirn home in Monifieth.
The judges, sitting at the Court of Criminal Appeal in Edinburgh, increased the fine to £60,000 after the case brought by Crown lawyers.
Prosecutor Alan Cameron told the court in July 2023 how Sheriff Jillian Martin Brown did not properly consider the circumstances surrounding David Fyfe’s death in May 2020.
Sheriff’s judgement
Alzheimer’s sufferer Mr Fyfe was 90 when he died from ammonia poisoning four days after drinking the liquid.
The company responsible for the home, Tigh-Na-Muirn Ltd, run by Peter Philip, pled 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 £10 million, admitted failing to ensure residents were not exposed to risks to their health and safety.
The fluid had been bought in specially during the pandemic and was placed in the rooms of those who were known to have the infection.
Sheriff Martin said the death happened as staff faced “extremely challenging circumstances” to keep residents safe and the incident was an “isolated” one.
Mr Cameron told the appeal court in Edinburgh the sheriff had given too much consideration to the “mitigatory” factors in the case and that she had taken the wrong approach to sentencing.
‘Inadequate consideration to degree of risk’
In a written judgment published on Friday, Lady Wise wrote: “The sheriff gave inadequate consideration to the degree of risk and the extent of the danger, and failed to recognise that the breach was not an isolated incident but continued over a period of time.
“This flawed approach has led to the imposition of an unduly lenient sentence.
“Accordingly, we must consider an appropriate level of fine of new.
“The offence occurred in a care home when the COVID-19 pandemic was at its full height and when care homes in particular were operating under enormous pressure.
“We also recognise that the offence occurred as a result of staff attempting to ensure that residents were kept safe by minimising items coming in and out of resident’s rooms and possibly spreading infection.
“Nevertheless, we consider that the fine imposed by the sheriff failed to fulfil sufficiently the relevant sentencing objective of punishment and deterrence.
“For these reasons, we shall allow the appeal, quash the sentence and substitute a fine of £60,000, reduced from a starting point of £90,000 in light of the early plea.”
‘Failure led directly to Mr Fyfe’s death’
Dundee Sheriff Court heard Mr Fyfe, who also suffered from other health issues, had been confined to his room after contracting Covid-19.
He was found seriously unwell in his room by staff in May 2020 and taken to Ninewells, where he died on May 31.
A post-mortem revealed the primary cause of death resulted from the ingestion of an ammonia-based cleaning product called Steri-Germ.
In the judgment issued on Friday, Lady Wise noted the company pled to breaching health and safety laws between March 20 2020 and June 1 2020.
“The sheriff seems to have overlooked, or at least not placed any emphasis on, the period of the libel.
“For two and a half months the company breached a standard that they had hitherto adhered to, namely of ensuring that residents were protected from any risk of ingesting hazardous substances by keeping these in a locked cupboard.
“Accordingly, the sheriff was wrong to categorise the incident as an isolated one as there was a continuing breach.
“The direction given to the care home required them to consider how best to isolate a Covid-19 positive resident while minimising any other risks to health and life.
“They failed to make any appropriate assessment for the whole period.
“The sheriff’s assessment failed to take sufficient account of the fact that the failure led directly to Mr Fyfe’s death.
“Further as he was a vulnerable person with reduced cognitive function with far less staff contact because of the requirement to isolate, there was a heightened responsibility to assess any risk arising from his isolation and changed hygiene practices.
“All of these factors ought to have been taken into account.”
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