Are staff are allowed to stop a child leaving a care home if they believe that the child is likely to be placed at risk of harm? In the care sector we regularly come across staff believing (or in some cases actually being told) that they are actually not allowed to stop a service-user from leaving a care home and as such, expose the service user to the risk of imminent or likely foreseeable harm.
Are security officers and door supervisors expected not to intervene in fights and disputes becuase their agency hasn't trained them to a competent standard simply becuase the SIA haven't legisated for it as yet?
Are teaching staff allowed to touch a child or administer care if a child is hurt at school, or should they avoid the risk of an allegation of 'abuse' by simply not administerng aid to a child in distress?
We know of some agencies in the care, education and security sectors, who actively discourage staff from usng physical force, sometimes thorugh the promotion of 'no restraint policies' and disciplinary action should they do so, on the basis that they are not trained, thus preventing staff from taking some form of action to prevent harm to others in their care.
In addition other reasons then come into play, for example - fear of prosecution possibly being the most prominent - should staff attempt to do something and get it wrong. However, if this is the case does the very act of inactivity - 'not-acting' or 'failing to act when one should' - create a liability in itself for the employer by allowing the harm to happen or continue?
If we are not careful the promotion of a 'risk adverse' culture is very likley to lead to the promotion of neglignce through inaction and this downward spiral will lead us towards more claims for negligence for not doing what we should.
The reality is that failing to act when one should, particulalry if one has responsibility and a duty of care towards others whom they may be looking after or who may be on their premises, can result in a breach of a whole host of legislation that is already in place that is designed to keep people safe.
To understand this we need to understand the difference between acts and omissions in terms of how the law views them.
The difference between 'acts' and 'omissions'.
In the case of Speck (1977) a man was charged with committing an act of gross indecency with a child. The evidence was that an 8-year-old girl placed her hand on the man's trousers over his penis. The male adult allowed the hand to remain there for some minutes, causing him to have an erection. In this case the Court of Appeal held that the adult's failure (omission) to remove the child's hand amounted to an invitation to the child to continue with the act. The Court held that the inactivity by the male adult in those circumstances amounted to an 'omission' which by default constituted an invitation to the child to commit an indecent act. It also recognised that the failure of the adult to put an end to the touching by the child was in itself an intentional act based on the intentional omission not to do what a responsible adult should have done in those circumstances.
'In short, if we omit to intentionally act, to do what we know we ought to do, and that omission leads to a harm that could have been avoided, we run the risk of being held liable for the harm caused.'
In another case, the case of Costello v Chief Constable, a female police officer was attacked in a police cell by a young woman whom she had arrested for absconding from a care home. The male inspector accompanying the female officer did nothing to help her and as a result she was injured. The female officer successfully sued her employer (the Chief Constable of Police) for a breach of the duty of care owed to her, based on the fact that her male colleague acted negligently, and as such breached the duty of care owed to her by failing to come to her assistance, which, if he had have done, may have prevented or reduced the severity of the attack and the resultant harm she suffered.
'In short the omission (the failure to assist) on behalf of her male colleague became an act of negligence for the organisation.'
Let us look at another example a little closer to home. If we were to physically restrain someone that would be an act. In short we have taken an action. We will have done something.
However, if we were not to restrain someone when we should have done, for example to prevent a vulnerable person harming themselves or others, and that failure to 'assist' or 'go to their rescue' led to an injury that could not have occurred had the act of restraint taken place, then we have possibly 'omitted' to do something that we should have done. In short we (or indeed the employer) may be cited for negligence.
What about the use of physical force?
Some staff, and indeed some organisations and their management, believe that they just cannot use physical force. This is even promoted by some inspectors in their subjective (and possibly incorrect) interpretation of the various Standards and Acts. Yet this is in itself a potential omission.
With regard to how much force can be used in such circumstances, if it becomes necessary to do so, we need to look to the 'Proportionality' standard that makes up one of the aspects of reasonableness.
Although the standard of 'Proportionality' is not a precise standard it is best defined in the following terms taken from Professor Andrew Ashworth's book 'Principles of Criminal Law':
"The standard of Proportionality is best defined as what is reasonably proportionate to the amount of harm likely to be suffered by the defendant, or likely to result if the forcible intervention is not made".
Again, if we notice the wording it states:
"..the amount of harm likely to be suffered by the defendant or likely to result if the forcible intervention is not made".
This would seem to infer that we have to consider the risk of not acting, or failing to respond, and the resultant harm that could result from such an omission, especially where such a harm or injury could not have occurred by the pro-active application of force.
Therefore, any agency that is responsible for the welfare of others should realise that any promotion of 'no-restraint polices' for example is advertising the fact that they are promoting the right for their staff to omit to do what they are possibly expected, and maybe even employed to do. If so, such an omission could very possibly end up as an act of negligence, don't you think?
Would it not be simpler and easier if we just told staff exactly what they can do, what is expected of them, as opposed to supplying them with a multitude of subjective reasons and opinions as to what they can not do - which by default, will have omitted to tell them what they can do - an omission in itself.
This raises another point which is that those individuals who are responsible for the training, monitoring and supervision of others, and who may have responsibility for developing safe systems of work, safe working practices and departmental / organisational policy, must have a competent understanding of the law in their professional field in addition to their academic, theoretical and experiential knowledge base. Otherwise biased subjectivity could give rise to blinkered liability, which could lead to knowledge based errors that may lead to liability.
Furthermore, a failure to do something which results in the unnecessary death of another may become a breach of Article 2(1) of the Human Rights Act 1998, especially if that death was foreseeable and could have been prevented.
And, more recently, the inclusion of the Corporate Manslaughter and Corporate Homicide Act into English and Scottish Law (which we wrote about in last month's newsletter) provides the test for Manslaughter by Gross Negligence. The test applied is:
a) Whether a reasonably prudent person (for example, the Director or Senior Manager responsible for Health & Safety) would have foreseen a serious and obvious risk of death, and
b) Whether that individual's conduct fell so far below the standard of a reasonably prudent person as to amount to a criminal act or omission.
If this is proved Directors and Senior Managers convicted of 'Manslaughter by Gross Negligence' face a sentence of up to life imprisonment.
Our next Restraint & Breakaway Instructors Qualifying Course is being held at the Lilleshall National Sports Centre between the 15th - 19th September 2008. It may be the best action you take this year. So remember, don't omit to act!! - click here for more details
You can also read more about this in our new book - 'Understanding Unreasonable Force' - to find out more - click here
