We think it is clear that the health or social services authority providing a service or arranging the provision of a service owes a duty of care of a relatively high standard, in negligence, toward the client, the client’s carer in a private domestic home setting, and a lesser duty towards the provider and the provider’s staff and other residents, in a residential setting.
Placing people in appropriate settings, or supporting them at home, inevitably puts others at risk that they are not entirely able to manage, given the unpredictable element that human beings are concerned, and the law requires forethought of a particular standard, before arrangements are made.
There are some aspects of the performance of the statutory duties of the authorities concerned that will not give rise to negligence, however, even if they are performed negligently. Shocking though this may seem, it has been decided by the House of Lords that authorities ought not to have to spend scarce resources fighting allegations of negligence in the context of discretionary decisions about their statutory functions, such as how to perform them, in general and with specific regard to individuals. Thus if scarcity of staff or financial resources has something to do with the events or omissions which have caused injury, (eg the cancellation of an operation, due to lack of specialist intensive care staff; a decision to close a home leading to death of an individual within a very short time of the move; the withdrawal of a preventative service in an entire authority, on grounds of financial difficulties) it will be much harder to sue than it would be if the harm had arisen through the straightforward ‘cock-up’ of the front line worker (eg the day-care staff’s failing to note that a client was covered in bruises; the nurse’s injecting the wrong drug or the right drug in the wrong place, or the home care worker’s not testing the bath water before getting the client into the bath).
To anyone with any knowledge of the care culture, it will be obvious that decisions about staffing, allocation of caseloads, and how thin to stretch the resources are directly related to the likelihood of negligence at the front line, because of stress. In law, however, the virtual immunity from suit of authorities is made more respectable, supposedly, by a distinction between ‘policy’ matters (which are virtually immune from suit) and ‘operational’ matters (open to a claim in negligence).
The reason we think that the standard of care is lower when a duty to the provider or its staff is concerned is that in that situation, the provider should have the means to evaluate risk for their own purposes, and they owe duties themselves, in law to their staff and to other clients to take reasonable care to prevent harm.
If a provider accepts a role in caring for someone, then that person, their tendencies, their problems and the environment in which they are going to be cared for will all combine to create risk of harm or disturbance to other people. So long as the authority asking for the care has made full and proper disclosure to that provider, of what it knows about the situation, we think that the authority will not be liable to staff or other clients who are harmed by the client, or caused other forms of distress.
Furthermore, certain aspects of the law of negligence have been specially regulated in order to protect employees – such as health and safety law, including duties regarding manual handling. In addition, from 2000 onwards, the UK’s Human Rights Act 1998 enables clients, providers, staff and carers to argue that the way in which an authority has conducted its functions has breached their human rights. Financial compensation has become available by way of a remedy in damages, through the ordinary courts of this country, in a context which do not depend on negligence, at all, but on concepts such as respect and inhuman or degrading treatment.