R v Guy’s and St Thomas’ NHS Trust [2008] CA 02/10/08

In this case the Court of Appeal was asked to consider whether the fine imposed against the appellant NHS trust for wrongly supplying a medical product not of a nature or quality specified in a prescription (in contravention of s.64(1) of the Medicines Act 1968) was correctly assessed. The Trust had been fined £75,000 following an incident which involved the supply of Total Parental Nutrition to a premature baby within the intensive care unit. The Technician operating the machinery used in making the formula mistakenly transposed the amount of glucose and water required resulting in an excessive amount of glucose, an error that went unnoticed by his supervisor. The preparation was inadequate for the baby’s treatment and the child died the day after the formula was given to him. A similar incident had previously occurred within the Trust but the mistake had been detected before any harm was caused. The judge at the first hearing had concluded that the investigation into the earlier incident was thorough and that any change to the system recommended by that investigation would not have had a material effect on the outcome in this case. The Trust was seeking a reduction in the size of the damages on the basis that the judge had failed to give adequate recognition to the fact that there was no failure of management systems or managerial neglect in this case and that he had also not fully considered the effect the fine would have on the Trust and their ability to meet the needs of the public.

The Court of Appeal sympathised with the judge at first instance, commenting that there was little case law on the matter, but felt that the Trusts complaint were correct. The task had been properly delegated and staff properly trained, this case was purely one of vicarious liability due to the acts of two employees and the fine should have taken this into account. In addition the Court of Appeal agreed that the judge had not fully considered the adverse effect such a large fine would have on the Trust’s ability to meet the needs of the public, Environment Agency v Milford Haven Port Authority (The Sea Empress) (2000) 2 Cr App R (S) 423 CA (Crim Div) considered. The Court of Appeal agreed it was correct to impose a fine due to the serious nature of the issues raised and the likelihood that a fine would have on those responsible to ensure that staff are alert to such risks, thereby benefiting the public. However, in setting the level of the fine the theoretical benefit to the public needed to be balanced needed to be balanced against the real and immediate effect of loss, R v Southampton University Hospital NHS Trust (2006) EWCA Crim 2971, (2007) 2 Cr App R (S) 9 considered. The Court of Appeal therefore substituted the original fine for one of £15,000.

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