On 1 February 2016 the new sentencing guidelines for health and safety offences came into force.

They direct the court to consider the sentencing of offending organisations by way of a step-by-step approach, primarily examining culpability, the seriousness of harm or risk and the likelihood of harm which is divided into a number of different levels to reflect the scale within each category. The determination of these matters leads to a rigidly imposed sentencing bracket within which fines will ordinarily be imposed.

The new guidelines apply to NHS trusts as they do any other defendant although there is some scope for a court to recognise the fact that a fine of a given size will have an undesirably detrimental effect on the operation of the trust, allowing the court to ‘step back’ from guidelines and impose a reduced fine accordingly. The guidelines do not provide detailed guidance on how the impact on service provision should be assessed or how an appropriate reduction should be reached.

It is clear from recent cases that in spite of the ‘step back’ provisions, the courts are prepared to impose significantly higher fines than might have been anticipated in recent years.

Norfolk and Suffolk NHS Foundation Trust was fined £366,000 and ordered to pay costs of £12,888.48 after the death of a patient on a specialist dementia ward. The Trust pleaded guilty to breach of Section 3(1) of the Health and Safety at Work Act 1974 – a failure to take all reasonably practicable steps to guard members of the public against risk of harm.

The patient, aged 78 at the time, had been admitted to the Julian Hospital (part of the defendant Trust) on 28 September 2016 and was placed on a specialist ward for patients suffering with dementia. On 16 October the patient was reported missing and was found face down in a bath full of water in one of the bathrooms on the ward.

An investigation from the Health and Safety Executive (HSE) found that the Trust did not have sufficient policies or procedures in place for managing the safety of patients. They had failed to complete an appropriate risk assessment for the patient and to take steps to prevent vulnerable patients having unsupervised access to bathrooms. At the time of the incident the Trust did not have adequate systems and arrangements in place to ensure that patients under its care on the ward were effectively monitored.

The position adopted by the HSE was that this was a tragic and preventable death’. It was the HSE’s view that ‘had the Trust put in place the correct procedures for the staff to manage the risks to vulnerable patients [the patient] may still be alive. It is vital that the patients’ needs are taken into consideration and hospital trusts carry out appropriate risk assessments. They need to make sure the correct work systems are put in place to ensure they are managed but also appropriately monitored’.

This case serves as a reminder of the serious consequences of failing to manage risk and safety – both for the patient concerned and the trust involved.