Non-Delegable Duty of Care

Mark Dawes - Tuesday, October 29, 2013

A recent ruling from the UK's highest court, the Supreme Court, has paved the way for the family of a brain damaged girl to pursue compensation from a local education authority and this ruling has major implications for any organisation that uses sub-contracted agencies or staff.

This ruling also has significant implications not just for all local education authorities but also for head-teachers of schools and other agencies such as hospitals, security companies, venues who use sub-contracted door supervisors and care homes who use agency staff.

To see one of the articles that appeared in the recent news >>> click here.

In short, a duty of care cannot be passed on by means of a contract. What this means is that the commissioning agency becomes responsible and liable for the actions and omissions of sub-contracted staff. But this responsibility and accountability has always been there. It is stated quite clearly in the Introduction to the Management of Health and Safety at Work Regulations 1999 which states that a duty of care to others under Section 3 of the Health and Safety at Work Act 1974 cannot be passed on by means of a contract. It actually states:

"If people working under the control and direction of others are treated as self-employed for tax and National Insurance purposes they may nevertheless be treated as their employees for health and safety purposes. It may therefore be necessary to take appropriate action to protect them. If any doubt exists about who is responsible for the health and safety of a worker this could be clarified and included in the terms of a contract. However, remember, a legal under Section 3 of the Health and Safety at Work etc Act 1974 (HSW Act) cannot be passed on by means of a contract and there will still be duties towards others under section 3 of HSW Act. If such workers are employed on the basis that they are responsible for their own health and safety, legal advice should be sought before doing so."

Currently today many schools also have contracts with certain providers to deliver physical intervention / restraint training to their staff. These contracts are sometimes negotiated by the LEA (Local Education Authority) and headteachers of schools may be 'encouraged' by the LEA to use the training that they have chosen to use under contract. But this ruling from the Supreme Court means that because the LEA has a "non-delegable duty of care" towards the pupils (and also the teaching staff) in each of it's schools they can now be held more accountable if the physical intervention training they 'impose' isn't fit for purpose.

It will also be interesting to see how this case law precedent has any impact on certain Government Inspectors who may (without the authority, training or competency to do so) suggest to certain care homes and schools that they should use only providers that are accredited by BILD for example. To read more about this see our blog posts entitled: Ofsted Inspectors and Physical Restraint and Bild Accreditation - What is it?. This also has implications for any commissioning agency that merely engages the services of a physical intervention training provider purely on the basis of Bild Accreditation or any other accreditation for that matter.

In addition, today many training providers are still teaching some physical restraint techniques that carry a high degree of risk and which have been advised not to be used. Some are still teaching single-person restraint which basically breaches the HSE's guidance on Lone Working ad as such could lead to a possible breach of sections 2 and 3 of the Health and Safety at Work Act if staff or the person being restrained was injured.

The implications of this ruling could be very far reaching and we will have to wait and see what occurs. But my advice to anyone looking to commission training is to primarily make sure that the training you engage is properly accredited to a National Vocational Standard and that the training provider can work with you to ensure that what is delivered is completely fit for purpose and underpinned by suitable and sufficient assessment of risk. 

One final request. Please share this blog post with all of your friends and colleagues in your professional and social networks. It is that important.

Best Regards

Mark Dawes
Comments
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