The Health & Safety Executive (HSE) has historically only prosecuted NHS trusts for health and safety failings that do not relate to direct clinical care but, in an unusual approach, Mid Staffordshire NHS Foundation Trust has been fined £200,000 and ordered to pay costs of £27,000 at Stafford Crown Court following a prosecution for breach of health and safety legislation in relation specifically to the death of a diabetic patient for which the trust pleaded guilty.
The case concerned care provided to a diabetic patient who was an inpatient at Stafford Hospital in 2007. Due to a number of failures in her care in terms of monitoring and communication, it was not noticed that she had high blood sugar levels and, as a result, she fell into a diabetic coma from which she could not be successfully resuscitated. The HSE prosecuted the trust for breach of Section 3(1) of the Health and Safety at Work Act 1974 (HSWA) which relates to the obligations of an employer to conduct their undertaking in such a way that persons other than their employees who are affected by the way the operation is run (in this context, hospital patients) are not exposed to risks to their health or safety.
When sentencing the Mid Staffs trust, the judge described this death as “wholly avoidable and tragic”. Peter Galsworthy, HSE Head of Operations in the West Midlands, said: “It remains very rare for the HSE to prosecute hospital trusts over clinical failures. Many civil clinical negligence claims involve some aspect of “systemic failure in management systems” but very few result in investigations by the HSE”.
Philippa Luscombe, partner in the clinical negligence team at Penningtons Manches LLP, commented: “In my experience it is rare for the HSE to prosecute an NHS trust in relation to clinical care provided to a specific patient. We do see them get involved where there are systemic problems such as infection outbreaks or where there are accidents causing injury to staff or patients. It is, however, rare for them to get involved in aspects of direct clinical practice. These are usually investigated by a combination of the complaints procedure, internal investigations, inquests and clinical negligence cases.
“This case marks a sea change in this approach as the prosecution arose entirely out of the care of this one patient who sadly died as a result of failings in her care. It remains to be seen whether this is a one-off due to the extent of problems at Mid Staffs; a warning shot to other trusts that, beyond a certain point, criminal sanctions will come into play; or whether the HSE will now play a greater role in ‘policing’ clinical care with a view to identifying systemic problems in direct clinical care and raising standards.”