A prosecutor has urged appeal judges to overturn an “unduly lenient” fine given to a Tayside care home where a resident died after drinking cleaning fluid from a bottle in his room.
Lawyer Alan Cameron told the Court of Criminal Appeal Sheriff Jillian Martin Brown did not properly consider the circumstances surrounding David Fyfe’s May 2020 death.
Mr Fyfe was aged 90 when he died from ammonia poisoning four days after drinking the liquid, brought in specially to clean during the Covid-19 crisis, at the Tigh-Na-Muirn home in Monifieth.
The company responsible for the home, Tigh-Na-Muirn Ltd, pled guilty to breaching health and safety laws at Dundee Sheriff Court.
The company, which has 120 staff and an annual turnover of up to £10 million, was fined £20,000 – reduced from £30,000 as a result of a guilty plea.
A victim surcharge of £1,500 was added.
Sheriff Martin Brown said the tragedy happened during the Covid pandemic and staff were acting in “extremely challenging circumstances” to keep residents safe and that the incident was an “isolated” one.
‘Unduly lenient’
On Friday, Mr Cameron told Lord Matthews, Lord Boyd of Duncansby and Lady Wise at the appeal court in Edinburgh they should impose a more severe penalty.
He said: “The sheriff relied too much on the mitigatory circumstances in the case and not enough on the aggravating circumstances in the matter.
“I say this has resulted in a disposal that is not only lenient – I say that this resulted in a disposal that is unduly lenient.
“I invite the court to quash the sentence and to impose a new sentence more appropriate in the circumstances of the case.”
‘No financial gain’
Earlier this year, Dundee Sheriff Court heard Mr Fyfe, who suffered from other health issues including Alzheimer’s, had been confined to his room after contracting Covid-19.
He was found seriously unwell in his room by staff at the height of the first pandemic lockdown and died in Ninewells on May 31.
It transpired he had drunk the cleaning fluid, Steri-Germ, which had been left in an unmarked bottle in his bathroom.
As a Covid emergency measure, the new product was being kept in Covid-positive rooms as an infection control measure.
Sentencing, Sheriff Martin Brown said: “No financial gain was made, nor intended to be made.
“The breach occurred by omission.
“While, with the benefit of hindsight, Steri-Germ ought not to have been stored in an accessible place in Mr Fyfe’s room, the management team did not have any cause to imagine that Mr Fyfe might deliberately or accidentally ingest the cleaning agent.
“Though he suffered from Alzheimer’s disease, his condition did not manifest itself in risky or erratic behaviour and he was able to undertake his own personal care independently, with minimal assistance.
“While the company fell short of the required standard, genuine efforts were being made in extremely challenging circumstances to respond to and react to a rapidly changing situation to keep residents and staff safe.
“The incident was an isolated one.”
Judgement later
On Friday, defence advocate Barry Smith KC told the court that the sheriff had acted correctly in the case and had followed appropriate tests when deciding the punishment.
He urged appeal judges to reject Crown requests for a more severe penalty.
Lord Matthews said he and his colleagues would take time to consider the submissions made to the court and would issue its decision sometime in the near future.
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