Fife Council has been fined £100,000 for health and safety failings which led to a resident in its care choking to death as he ate a corned beef sandwich.
Brian Millar, 66, died on June 4 2020 in supported living accommodation in Kirkcaldy’s Methven Road.
Mr Millar had trouble eating and was prescribed a texture-modified diet but was given unsuitable food and not supervised closely enough as he ate it.
When he became unresponsive, carers tried to dislodge the food and performed the Heimlich manoeuvre but could not save him.
At Kirkcaldy Sheriff Court this week, Sheriff Steven Borthwick said: “This is a tragic case involving the entirely avoidable death of a vulnerable adult who was in the residential care of Fife Council”.
Choked on sandwich
Mr Millar, who had learning disabilities and cerebral palsy, lived in a four-resident residential home care facility for adults with physical and mental learning disabilities and needed 24-hour support.
Prosecutor Kristina Kelly told the court he had been assessed by a speech and language therapy team (SALT) due to his oral dysphagia and could not have tough, chewy, crispy, crunchy or stringy food.
Bread had to be soft and cut into bite-sized pieces containing soft fillings or, in the case of corned beef, mashed with sauces to add moisture.
He also required one-to-one supervision when eating.
On June 4 2020 a care assistant prepared Mr Millar’s lunch – a sandwich cut into bite-sized pieced of crustless bread, margarine and a slice of corned beef.
The care assistant, although still in the room, did not closely supervise him as he ate at his over-the-bed table and about five minutes later another care worker brought Mr Millar juice and noticed he was very pale and voiced concerns he was choking.
The fiscal depute said Mr Millar, who had been a resident at the house since May 2018, appeared calm and was not coughing, panicking or gasping for breath.
The carers tried to dislodge the food from his mouth and one attempted the Heimlich manoeuvre.
Emergency services were called as CPR was carried out but Mr Millar was pronounced dead by paramedics just before 1.20pm.
Previous incidents
It was the second time Mr Millar had choked in the council’s care, the court heard.
In May 2018, he did so at a different care facility and staff there were given more training, not provided to the Methven Road workforce.
The fiscal depute said sharing of this “critical information” would have ensured all those supporting Mr Millar would have reduced the risk.
The court was told of an assessment of Mr Millar’s meal in December 2019 which showed it was not appropriate and on the same date a carer took another resident to the toilet and left Mr Millar unattended while eating his sandwich.
A report was written and Methven Road staff were given further literature and advice.
In January 2020 further recommendations were made by the SALT team that staff supporting Mr Millar should undergo choking training but it had not taken place by the time of his death.
Expert opinion was given by NHS Lothian’s head of adult speech and language therapy.
She advised although corned beef is softer than a lot of cold meats, it would still usually need to be broken up with a sauce or chutney.
She said while one-to-one supervision during a meal would vary for different people, it usually means staying about one step away and concentrating on the person eating.
The fiscal depute said: “Despite Fife Council having knowledge of the risks posed to Brian Millar from choking, appropriate procedures were not followed to ensure that suitable foods were given.
“The advice provided… was not adequately followed or understood by staff.
“This resulted in unsuitable foods being provided for Mr Millar which ultimately led to his choking.”
The fiscal said training in dysphagia had not been provided and the council instead relied on first aid training – unsuitable as it is not preventative.
The charge
The local authority pled guilty to a charge of contravening the Health and Safety at Work Act 1974 by failing to ensure a safe system of work to ensure residents who required a modified diet were provided with food suitable for their needs between May 24 2018 and June 4 2020.
They failed to provide employees with responsibility for distributing food to residents with sufficient information, instruction and training on modified diets.
In particular, they failed to follow their own risk assessment in relation to Mr Millar, who was assessed as being at high risk of choking and required a suitable modified diet.
As a consequence, he was provided with unsuitable food and inadequately supervised, whereby he choked and subsequently died.
Council’s changes since death
Defence counsel Emma Toner said systems were in place but not adhered to or sufficiently implemented.
She said “substantial” measures have been taken by Fife Council since Mr Millar’s death.
She said this includes audited “level one” dysphagia training, with more specific training and competency assessments for those working with people with learning disabilities and difficulties with eating, drinking and swallowing.
The lawyer said key facts about the service user, including dietary needs, are now reflected in the front cover of care plans.
A spokesperson from Fife Health and Social Care Partnership said after the case: “The loss of Mr Millar was a tragedy and we deeply regret the circumstances which led to the incident.
“We would also like to extend our sympathies and condolences to all who knew and cared for Mr Millar.
“We remain committed to continuous service improvement and in the period since the incident in 2020, the Partnership has put a range of measures into place which includes a comprehensive and ongoing training programme for our staff and changes to the way we document and share care plans for the people we care for.”
Fine and compensation
Sheriff Borthwick noted the council’s guilty plea meant they accepted legal responsibility for Mr Millar’s death.
He fined the local authority £100,000 and made a £50,000 compensation order to Mr Millar’s next of kin.
The sheriff restricted the level of fine due to the fact the local authority is publicly-funded and provides essential services.
He noted mitigatory factors included the early plea and that the council has taken steps with staff training.
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