How liable are you if an inspectorate gives you illegal advice, which you feel pressurised to implement (due to the inspectorate possibly threatening to impose sanctions against your company) even if you know it will increase the risk to your staff and service users?
This video follows on the back of the one I did yesterday on vicarious liability because I’ve had some interesting correspondence come in, in relation to that video with people asking me some questions and asking for my advice.
And one particular email has caught my attention because they’ve asked for my opinion and some guidance on this.
And to give you a rough outline of the situation without mentioning any names, an organisation, and by the way, they are a very good organisation, I’ve known them for a long time, they’re good people.
They look after service users that have some very complex mental health issues and learning disabilities and that sort of stuff and they do great work with them by the way, absolutely brilliant.
But they have one particular service user at the moment that started to exhibit some very serious challenging behaviour, which has resulted in staff being injured to the extent that they’ve had bones broken.
So this is quite severe.
Now, they’ve done everything they can to try and eliminate the risk.
They’ve done all the preventative stuff, everything, even environmental stuff to try and reduce the triggers that caused this behaviour.
But this behaviour is happening. So they’ve implemented one technique that is a release technique and that technique involves applying pain in a particular area to allow them to release so they don’t get assaulted and they don’t get their bones broken.
And what’s happened now is an inspectorate, the inspectorate that’s responsible for this industry sector has come in and it’s told them that it’s taken advice from their legal services department who have advised them that the use of force, which causes pain is illegal and it must cease immediately.
So the first question they asked me was, is that correct?
Now at this stage, some of you will be screaming at this, I’m sure, because you know as well as I do that there is no law that says specifically that you can’t use a technique that causes pain.
So what I’ve told them to do to try and find out a way around this is to go back to the inspectorate and say,
“Could you please tell us what laws specifically your legal services team are referring to because we were not aware of them and our advisors are not aware of them?”
So that might start to oil the wheel if you like to help things go smoothly for later on.
But the second question I got was directly to do with vicarious liability and they say:
“But if we remove the technique, because we actually may have to because we’re so concerned about the sanctions that they may impose upon us that could be detrimental to our business”.
So we have to weigh up staying in business and staff safety and service user safety.
But if they are that insistent that we have to remove these techniques and we do it under duress (in other words, they do it under pressure from this inspectorate), are we liable then if a member of staff gets seriously hurt, who wouldn’t have got hurt had we left the technique in.
And while you’re answering your own question now you’re probably all saying yes because the answer of course is yes.
There is a liability there and it’s a direct liability because you’ve taken the decision to remove the technique.
So I told than that because you’ve had to do it under duress if you like, you’ve had to do it for fear of being sanctioned by this inspectorate, make sure you get it in writing and make sure that you make clear to the inspectorate that you’ll be writing all this down because there is a vicarious liability back to the inspectorate.
This is because if they are advising them to remove a technique based on flawed and illegal advice, then that is negligence, which is going to result in them having to do this under duress, which is going to possibly result the member of staff being seriously injured, bones broken, God forbid, I hope no one’s killed.
And if that wouldn’t have happened had the technique been kept in, then the organisation has the liability of taking it out.
But if they’ve taken it out because they’d been put under pressure to do so by an inspectorate, which is telling them to do so based on flawed and illegitimate or illegal advice, then that inspectorate is vicariously liable for that member of staff’s safety who got injured.
So, that’s an interesting one. I’d like to hear your opinions on that. So if you have any opinions, please feel free to comment box below.
Also, feel free to share this around if you feel it helps.
Thanks ever so much and I’ll speak to you soon.