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The recent £1.5 million fine imposed on BUPA Care Homes, following the death of a resident from Legionnaires disease, demonstrates the increased risk of substantial fines and emphasises the need for organisations within the sector to ensure compliance with their health and safety obligations.
Fines for safety-related offences have increased substantially since the Health and Safety Sentencing Guidelines came into force on 1 October 2016. These guidelines ask judges to consider the harm caused by the breach, the culpability and turnover of the offender and any aggravating and mitigating factors, in order to determine an initial level for the fine. The fine is then adjusted if necessary to ensure it is proportionate to the means and circumstances of the offender.
On the third anniversary of the guidelines’ implementation, the Sentencing Council reviewed their impact. In the ten months before the guidelines coming into force, the average fine was £40,500, and only 17% of those organisations sentenced received a fine over £60,000.
In the ten months after implementation, the average fine rose to £221,700, and 51% of organisations sentenced received a fine over £60,000.
On 1 October 2019, new general sentencing guidelines were introduced, which will increase the likelihood of significant fines in a range of cases including Fire Safety and CQC prosecutions.
The Court of Appeal judgment of R (upon the prosecution of Her Majesty’s Inspectors of Health and Safety) v BUPA Care Homes Ltd demonstrates some of the key points the court will consider when sentencing health and safety offences and reinforces the increased risk of substantial fines within the health and social care sector.
The key points raised by the court were:
- A judge has the flexibility to consider a range of different factors when deciding the initial level for the fine, including the culpability of the defendant.
- The residents of the home were exposed to the risk of harm by exposure to Legionella as a result of many failures by the Defendant over a number of years.
- The court must consider the economic realities of the organisation in order to determine whether the fine needs to be adjusted. The Court of Appeal restated that the finances of linked organisations should only be considered in exceptional circumstances, which will be judged on a case-by-case basis. The court found that there were no exceptional circumstances here as the Defendant was seemingly able to pay the fine and operate as a going concern without the parent company’s support.
Whilst the Defendant’s fine in the above case was reduced, it is still a significant fine given the size of the Defendant and the nature of the offence.
Health and social care organisations need to ensure that they understand their specific health and safety duties in respect of each element of their operations. These duties can often be wide-ranging and, in some cases, overlapping.
Duties that may give rise to criminal prosecution include those arising under Health and Safety, Fire Safety and Food Safety legislation as well as the requirement to ensure safe care and treatment under the Health and Social Care Regulations.
Once organisations understand their duties, they need to ensure that they carry out suitable and sufficient risk assessments as well as implement policies, measures and precautions to comply with their obligations.
If an incident does occur, it is essential to take early advice to ensure that a case strategy can be formed as soon as possible.
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