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Health Legal Update: Responsibility for the actions of carers in care home abuse claims

    • Health and life sciences - Healthcare e-briefings

    05-07-2013

    There has been much publicity in the national press and on TV on the issue of increasing numbers of claims of abuse in care homes. Recent reported incidents have centred around elderly care. If this coverage is substantiated care home operators face serious issues in terms of brand protection and the cost of investigating and paying claims with sensitivity. There were 64,020 claims last year that were probed by officials because of concerns that people aged 65 and over were being abused and of which almost 14,000 cases related to abuse at the hands of residential care home staff. The increased publicity in itself will bring a greater awareness of the public of the potential for bringing a claim (genuine or otherwise), and an increase in the number of claims made should be anticipated. Some solicitors are preparing to exploit this phenomenon to your disadvantage seeking out potential claimants.

    The recent reports of abuses refer to systematic neglect, physical abuse, psychological and sexual abuse.

    So if a carer abuses a care home resident, what is the employer’s legal position in relation to a claim?

    A claim can be brought by the victim against the person or persons who directly caused the abuse. This is however rarely done in practice as the carer will probably be personally uninsured and there will be uncertainty as to whether the individual carer will have sufficient finances to actually pay any compensation and the associated legal costs. The victim is therefore likely to make a claim for compensation against the care home owner/operator, under the legal doctrine of vicarious liability.

    What does vicarious liability mean?

    If you were to ask a lawyer, then a frequent response would that the employer is responsible for the harm caused to another by its employee in the course of carrying out his/her contract of employment. This responsibility arises regardless of whether there is any direct blame on the employer. However, as with many legal doctrines, things are not as simple or straightforward as they seem.

    So as an operator of a care home, for whom do you owe a responsibility if they cause harm?

    The obvious response is for employees, but what about agency workers, contractors and volunteers? The Courts will look beyond the relationship labels applied by the parties in a dispute and to look at the factual position. One of the tests applied by the courts to determine whether the employer was liable for someone described as an independent contractor (ie someone not directly employed by the employer) is the control test; that is does the employer dictate both what work was to be done and how it was to be done. The recent case of EL v The Children’s Society (2012) involved a historical case of sexual abuse. The claim was brought by a former care home resident against the son of the couple who ran the care home, on the basis that the son was “part of the workforce”. The Judge stated that “vicarious liability is not confined to employment or business relationships”. Although in principle an employer could be responsible for the harm caused by a volunteer on the facts of this case there was insufficient evidence that the son who committed the abuse was left in charge of the care home either formally or informally. If the court considers that the relationship between the employer (owner/operator of the care home) and the person who committed the harm looks like, smells like and feels like an employer/employee relationship, then they will apply the doctrine of vicarious liability.

    What acts of harm are covered under vicarious liability?

    Surely someone’s contract of employment or job description would not include acts of violence or other criminal activities, so why would there be responsibility for the employer for the harm caused by these such acts?

    The Judgment in the case of Lister v Hesley Hall Ltd (2002) developed a new concept of an employer being liable for certain criminal acts (including sexual assault, assault and theft) committed by an employee if the employer authorised the employee to act in a particular way and in so doing gave him/her the opportunity to commit an unlawful act connected to the authorised “employment” situation and arising from a risk inherent in the enterprise. In those circumstances the employer will be liable for the employee’s actions if the risk is one which experience shows is inherent in the nature of the business.

    In practice, if part of the carer’s duties is to look after or attend to residents, and the carer has access to patients then the employer will have responsibility to pay compensation for any criminal acts committed against the patient.

    The case of Lister v Hesley opened up a whole new category of claims and the process is still ongoing. The recent cases of Weddall v Barchester Healthcare Limited (2012) and Wallbank v Wallbank Fox Designs (2012), illustrate how far this process has gone.

    In the Weddall case, Mr Weddall was a care home manager who was attacked by an employee, Mr Marsh. Mr Weddall telephoned Mr Marsh at home and ask him to come into work to cover for another employee. Mr Marsh who had been drinking, took exception to Mr Weddall’s manner and refused to do so, resigned, and then went to the care home where he assaulted Mr Weddall.

    In the Wallbank case, Mr Wallbank was a company director and requested that Mr Brown keep the oven busy in a powder coating process. Mr Brown responded by throwing Mr Wallbank some 12 feet onto a table, fracturing his vertebrae.

    In the Weddall case the Court of Appeal found that the pivotal point was that Mr Marsh was off duty at the time of the assault, and insufficient connection between his employment and the unlawful act. However in the Wallbank case the Court of Appeal found that the unlawful act was sufficiently connected with and flowed from, the instructions at work.

    What can be done to defend claims?

    A holistic approach is required and simply waiting until the claims are brought is too late. Once the abuse has taken place it is too late. The emphasis is on preventative measures to avoid abuse occurring in the first place. There are a number of things that owners or operators of care homes can do.

    1. Apply the correct level supervision of employees and others who are likely to come into contact with residents and to assess the risks and likelihood of criminal or other acts taking place. Then take steps to avoid the occurrence of such acts.
    2. Adopt a policy of zero tolerance of abuse and ensure that all employees and those who come into contact with residents are aware of this policy. Consideration should be given as to what measures should be taken against employees or others who have acted in a way that could be considered to amount to abuse. There are employment law issues here and in cases where you have suspicions that abuse may be taking place, to take pro-active legal advice from an employment lawyer.
    3. Ensure that in instances giving rise to a possibility that abuse may have taken place, to carry out proper investigations and keep accurate records and statements from those involved including the resident. Residents making claims for compensation against the employer have 3 years within which to bring legal proceedings, in which time many care staff have come and gone, possibly overseas. It is unfortunate that claims are settled, notwithstanding genuine doubts as to whether any abuse took place, simply due to a lack of documentary evidence or witnesses with which to defend any claims.

    If a claim is made, what is it likely to cost?

    The compensation even for a simple assault is unlikely to be less than £5,000, with claims for serious and long lasting symptoms being between £25,000 to £50,000. If the Judge finds that your employee (or other) was responsible for the harm, then you will also have to pay the claimant’s legal costs as well as your own, claimant’s costs could be in the region of £12,000 to £50,000.

    In summary

    There is likely to be an increase in the number of claims reported. The best measure to protect your business is to take a pro-active and holistic approach to preventing, or at least minimising, the circumstances that could permit abusive behaviour and lead to a claim for compensation. It is imperative to investigate circumstances that arise immediately and keep a proper record. If you are in the unfortunate position where a claim has arisen, then we can deal with these on your behalf in a cost effective and sensitive way to minimise the damage to your business and brand.

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