NHS Ayrshire and Arran fined after causing patient's death

The Ayrshire and Arran health board was hit with a £66,000 fine after it admitted failing to ensure that meals provided to Iris McNaught minimised the risk of her choking.

Ms McNaught died at Ayrshire Central Hospital in Irvine on July 14, 2021 as a result of the failures.

The health board was also ordered to make a 'victim surcharge' payment of £4,950 during a hearing at Kilmarnock Sheriff Court on May 28.

The board had previously pleaded guilty to breaching the Health and Safety at Work Act 1974.

Ms McNaught had been admitted to ward 3 at the hospital, part of the Woodland View facility, which cares for older adults with a diagnosis of dementia, little more than two weeks before the tragedy.

Before passing sentence, and with three members of Ms McNaught's family watching from the public gallery, Sheriff Nicola Patrick said the sentence was "in no way reflective" of the tragedy.

Sheriff Patrick said: “Nothing I can say in this case, nor any sentence the court can pass, can reflect the consequences of the failure in this case. 

"I wish to state that the sentence I am passing in this case is in no way reflective of the tragic outcome or the loss sustained by the family and loved ones impacted by this and I once again extend sincere condolences to those affected."

The charge to which the health board pleaded guilty stated that between June 28 and July 14, 2021, the health board “did fail to have in place a sufficient system of work to ensure that any meals prepared and provided by you contained foodstuffs that were suitable to prevent or minimise the risk of choking by persons consuming them”.

It added that “in consequence thereof, on July 14, while Iris McNaught was eating a meal prepared and provided by you which failed to meet dietary requirements determined on June 28 by a speech and language therapist employed by you, she choked and died”.

Sheriff Patrick added: "I have listened very carefully to all of the circumstances in this anxious and difficult case. 

"I have also had the benefit of detailed submissions from counsel on behalf of the NHS.  I have considered carefully the sentencing guidelines for such cases referred to by counsel and the recent cases I was directed to involving public bodies.

"This case turns on what was ultimately a failure to implement a final check, albeit there was a developed system in place to mitigate the risks for those at risk of choking."

The NHS in Scotland categorises risk of harm in three levels - level one being 'major or extreme', two being 'minor to moderate' and three being 'none'.

Sheriff Patrick said: "I accept the submission that the failure in this case is a narrow one and accordingly falls within the low culpability bracket. 

"The absence of any final check, in my view, does mean that the likelihood of harm was medium. That is effectively borne out by what happened.

"In considering the final harm category that is applicable, there is also no doubt that the offence was a significant cause of actual harm. It was the only cause." 

Sheriff Patrick also said that her starting point for a fine - the only available sentence in a corporate prosecution in Scotland's criminal courts - was a penalty of £200,000, but that a number of "mitigating factors", including the health board's role providing a public service, led to her decision to impose a fine of just one-third of that sum.

But she also mentioned that the health board had previously admitted other breaches of the law.

She said: "Of particular relevance are the very significant steps taken to remedy the system failure that gave rise to the incident. 

"The previous convictions are an aggravating factor. However, in addition, I am duty bound to consider the organisation's role in providing a public service, and the impact of a fine."

She said she would reduce the figure, first of all to £100,000 and then, because of the health board's decision to plead guilty, avoiding the need for a long and complex trial, to £66,000 plus the victim surcharge. 

Dr Crawford McGuffie, medical director at NHS Ayrshire and Arran, said: "On behalf of NHS Ayrshire and Arran, I offer my deepest condolences to the family of Mrs Iris McNaught. Our thoughts and sympathies are with her family, friends and all those affected.

"We fully accept the decision of the court. As a learning organisation, we have shared the findings with staff, so that we can ensure the necessary improvements are made to deliver the best possible care across health and social care services on an ongoing basis.

"NHS Ayrshire and Arran is committed to providing high standards to ensure our patients receive safe and dignified care at all times."