SENTENCING STATEMENTS

On sentencing, Sheriff Dickson made the following statement in court:

"This case arises from the extremely sad death of Mr Yorston at the Royal Edinburgh Hospital (REH) in Edinburgh on 2 January 2024.

 Mr Yorston had a history of mental health problems and was taken to the REH in late December.  His admissions notes recorded suicide ideation and highlighted “ligature” as a risk area.  Very sadly Mr Yorston committed suicide at the REH and made use of a black bin liner, which he had obtained from a communal area of his ward, to do so.

At the time of Mr Yorston’s untimely death Lothian Health Board had guidance in place that all bin liners should be removed from acute mental health inpatient settings.  This guidance had been in place since July 2020.  In February 2022 the Health and Safety Executive issued a letter to all Health Boards.  This letter highlighted the risk posed by plastic bags, including bin liners, to patients in acute mental health wards.  Lothian Health Board thought their previously issued guidance addressed the risk identified by the Health and Safety Executive.  However, very unfortunately, the Lothian Health Board guidance of July 2020 had not been communicated to the appropriate staff at the REH who continued to operate the practice in place before the issue of that guidance, which only required bin liners to be removed from a patient’s room where there were specific concerns regarding the individual patient and the potential use of bin liners.  This outdated practice continued to be followed at the time of Mr Yorston’s death and meant that black bin liners were not removed from Mr Yorston’s ward. 

Lothian Health Board have accepted that they committed an offence contrary to the Health and Safety at Work etc. Act 1974 and have tendered a guilty plea at the earliest opportunity available to them.

There is no sentence that I can pass which reflects the value of the life lost and the harm caused in this case.

In this case I have taken into account all relevant information including the Crown narration and the plea in mitigation, which set out the remedial steps taken by Lothian Health Board to avoid, in so far as possible, such an error occurring in the future.

I was invited to have regard to the Sentencing Guidelines produced by the Sentencing Council of England and Wales and I have followed that invitation in line with the approach suggested by the High Court of Justiciary in the case of Scottish Power Generation Ltd v HM Advocate 2017 JC 85.

Those Guidelines set out a number of Steps.  In relation to Step 1, I make the following assessments.  As regards the level of culpability, I assess that as medium.  As regards the level of harm, I assess that as being in the highest level, namely level A.  Within level A, I assess the likelihood of harm to be medium – so category 2.  I considered that a number of patients were exposed to risk and that the offence committed was clearly a significant cause of harm.  Those factors moved the offence higher up the category 2 range.

In relation to Step 2, I note that Lothian Health Board has an annual budget of £1.6 billion, but fully accept that that budget is fully accounted for and that they have no reserves.  I also take account of the fact that they are not a commercial organisation pursuing profit and are a public body looking after the health of the public which they serve.  Therefore, any fine will require to be paid out of public funds generated from taxes from the public.  In all the circumstances, I consider that Lothian Health Board should be treated, for the purposes of the Guidelines, as a large organisation.  That led to a range of fine between £300,000 to £1.5million.

There were analogous previous convictions, which was an aggravating factor.  There were, however, no other aggravating factors.  The steps taken by Lothian Health Board to voluntarily remedy their failings, their high level of co-operation with the investigation and their acceptance of responsibility were all mitigating factors. 

Step 3 requires the court to refer to the other financial factors listed to ensure that the fine proposed fine is proportionate and Step 4 states that where the fine will fall on public or charitable bodies, the fine should normally be substantially reduced if the offending organisation is able to demonstrate the proposed fine would have a significant impact on the provision of its services.  In this case I accept that any fine imposed will require to be paid from sources which would otherwise be applied to the supply of health services by Lothian Health Board. 

Taking all these matters into account, I have arrived at a starting point of a fine of £105,000.  I have then reduced that figure to £70,000 to take account of Lothian Health Board’s plea at the earliest opportunity.

The fine of £70,000 is to be paid within 28 days and will be recoverable by civil diligence in default of payment.

A victim surcharge will also be applied at the rate of 7.5% of the fine (£5,250)."