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In the Daily Mail on Monday 26th May, on page 31 the headline read: "Baby dies after being left in car for eight hours". What had happened was a mother left her 5-month-old son in her car outside her place of work and when she returned eight hours later he was dead from dehydration. As a result the mother could now face a criminal charge of causing her baby's death by negligence.
As I read the story I was prompted me to write this article as I had recently run a training course and one of the questions we had, which we regularly get is "Am I allowed to stop a child leaving the care home if I believe that he/she is likely to be at risk of significant harm?"
You see, one of the really weird things I regularly come across is staff believing (or in some cases actually being told) that they are actually not allowed to act in the best interest of the child (or indeed other vulnerable persons), which in itself in contrary to the Welfare or Paramount Principle promoted by the Children Act and the United Nations Conventions on the Rights of the Child.
For example, I have known staff to be told that they are not physically allowed to stop a child who by leaving a children's home is placing themselves at risk of significant harm. They are also told that if they are not trained they are not allowed to use physical force to either assist to prevent or terminate a service user or member of staff from being assaulted, and indeed some organisations actively promote no-restraint policies to ensure that staff do not use force and by doing so are then justified in their own eyes in not having to provide training.
In short some agencies are actively discouraging and preventing staff from taking some form of action for many reasons - fear of prosecution possibly being the most prominent should staff attempting 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 by inviting the harm to happen or continue?
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 fail to do what we know we ought to we run the risk of being held liable for creating an omission.
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.
Lets 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 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.
Can we stop a child from leaving a care home? Read on next page - |
