Are huge fines for the failings of public bodies the best way to deal with the issues? Jacqueline Cursiter considers the arguments as scrutiny of the NHS, fire and police services only increases
This past year has been significant and possibly unprecedented in terms of the scrutiny which public bodies in Scotland have faced. This follows devastating incidents, including 2013’s Police Scotland helicopter crash into Glasgow’s Clutha Bar and last year’s bin lorry accident in the city, tragic events which claimed a combined 16 lives.
Both accidents have invoked the Fatal Accident Inquiries (FAI) process, and come at time when there is widespread discussion on sentencing and the appropriate level of fines for breaches of health and safety for public bodies. In the case of the Clutha crash, Police Scotland Deputy Chief Constable, Iain Livingstone has publicly stated how his organisation has been “carrying out an extensive major investigation under the direction of the Crown Office and Procurator Fiscal Service.”
During the bin lorry accident FAI, the inquiry heard suggestions of shortcomings in Glasgow City Council’s recruitment process. While there is no suggestion either Police Scotland or Glasgow City Council is directly responsible for these incidents, the scrutiny of their processes and any potential link to these incidents is significant.
This follows a number of other similar cases in Scotland over the past year. In February the Scottish Fire and Rescue Service pled guilty to health and safety breaches and was fined £54,000 following the death of firefighter, Ewan Williamson in Edinburgh in July 2009. In July, NHS Highland pled guilty to health and safety breaches and was fined £40,000 for the death of a patient with respiratory problems at Raigmore Hospital, Inverness, in 2013.
Meanwhile in August both Aberdeen City Council and Aberdeenshire Council pled guilty to health and safety breaches and were fined a total of £13,000 for an incident at Stonehaven Open Air Pool in 2012 when a child was recovered unconscious from the pool by a member of the public.
The closer inspection of public bodies following breaches of health and safety has not been unique to Scotland. In 2014, Mid Staffordshire NHS Foundation Trust was fined £200,000 following a guilty plea at Stafford Crown court following the death of Gillian Alsbury, a diabetic patient who died after nurses failed to administer insulin at the appropriate time.
Following this high-profile prosecution in England, was the news that Maidstone and Tunbridge Wells NHS Trust was to be the first to be accused of corporate manslaughter as a result of the death of a woman giving birth by emergency caesarean.
These cases demonstrate how public bodies continue to fall more readily than ever within the scope of the regulator, the Health and Safety Executive (HSE). As Lord Uist made it clear in his comments in The Scottish Fire and Rescue Service prosecution, any fines imposed upon a public body “must not inhibit the performance by them of the public function which they have been set up to perform.” There is, however, a need to focus on compliance with existing legislation and for robust procedures to be put in place by those who manage public sector organisations.
Last month also saw the establishment of the Scottish Sentencing Council to be chaired by the Lord Justice Clerk, Lord Carloway. Although it is focused on sentencing generally, we await further developments in health and safety. It’s worth noting that in 2005 Lord Carloway imposed the highest ever fine in the UK for a breach of health and safety, in the case of HMA v Transco, of £15 million. He commented at the time on the limited guidance available on the appropriate level of penalties for serious breaches of health and safety matters.
Equally significant was Mr Justice Haddon-Cave’s comments following the Mid Staffs case when he stated “HSE prosecutions of public bodies involve a philosophical conundrum: What is the point of fines when they are paid out of public funds?” His view is that all organisations, public or private, should be accountable under criminal law meaning both the Health and Safety at Work Act 1974 and the Criminal Justice Act 2003 should apply to all responsible public bodies as they do to private organisations.
What seems certain is that the rise in scrutiny of public bodies is set to continue with real potential for more punitive measures to be imposed when health and safety breaches occur.
• Jacqueline Cursiter is a Senior Associate at law firm CMS