On 7 July 2015, at Inverness Sheriff Court, NHS Highland was fined £40,000 following a guilty plea to Sections 3 (1) and Section 33 (1) (a) of the Health and Safety at Work etc. Act 1974. The court heard that a patient considered not well enough to swallow solid food choked to death after he was mistakenly given lunch. James South, 51, from Aviemore, had respiratory problems and was being treated in an intensive care ward at Raigmore Hospital in Inverness. The court heard there was a sign above his bed with the words "nil by mouth" written in red pen.

Peter Gray QC, the health board's counsel, told the court that the incident had been an "isolated failure at operational level". He said: "The failing relates to one ward in one hospital on one day. It is not a systematic failure and the organisation has no previous convictions.” Mr Gray added: "The system had worked up to that day and a meal-time co-ordinator has now been appointed. This decision was taken prior to this incident and indicates that health and safety generally was a matter that was always at the forefront of the organisation."

Fining the health board, Sheriff Margaret Neilson said: "A significant financial penalty is appropriate here. A death has occurred due to a public body's failure. But I note that it has taken steps to rectify the failings.”

This case is another example in recent years of the HSE’s willingness to investigate and prosecute public bodies.  It also follows on from a number of other high profile cases of both private and public bodies in the care sector.

We have previously reported on such a case whereby The Scottish Fire and Rescue Service were prosecuted following health and safety breaches which led to the death of a firefighter. The HSE also reported on their prosecution of Mid Staffordshire NHS Foundation Trust in April 2014, whereby the Trust failed to implement a proper handover system or to oversee the proper completion of nursing records and the monitoring of care plans. The Trust pleaded guilty to an offence under the Health and Safety at Work etc Act and was fined £200,000 at Stafford Crown Court.

This case also comes at a time of widespread discussion on sentencing and the appropriate level of fines for breaches of health and safety.  However, Lord Uist made it clear in his comments in The Scottish Fire and Rescue Service prosecution that any fine imposed upon a public body “must not inhibit the performance by them of the public function which they have been set up to perform”.  Although a public body perhaps now falls more readily than ever within the scope of the HSE, the question as to how fines will be approached remains.  Further developments are awaited.

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