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Law of TORT: Duty of CareLaw for Counsellors

Kevin Standish

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Learning Objectives

1. Explain clearly what constitutes negligent and/or

inappropriate professional behaviour

2. Understand how to protect oneself and clients by working

within professional codes of ethics

3. Describe the duty of care

4. Describe the core elements of safeguarding

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• Duty of Care: What does this mean? • The term ‘duty of care’ is often used in

an aspirational sense regarding the kind of overarching ethical responsibilities that ideally therapists should take on, to avoid harm through their work with clients.

• Is this feasible?

Duty of Care ?

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• it has been suggested that therapists are under a duty of care to report child abuse and to prevent clients from committing suicide,

• while agencies have a similar duty to provide supervision, and that supervisors have a duty of care towards clients.

• In a narrowly legal sense, these claims are incorrect, unless supported by either a clear statutory duty, or case law as precedent.

• In ethical, moral or professional terms, therapists may have wide and appropriate responsibilities to promote the welfare of clients and to avoid harm.

Duty of Care?

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• In legal terms, their duties in law are very circumscribed, for the moment at least.

• Therapists and their employing agencies should be cautious about seeking to take on ever widening definitions of a duty of care, as where there is a duty of care, then there is also liability.

• If a supervisor does have a legal, and not just an ethical, duty of care towards a client, then the client can, in theory, sue the supervisor.

Duty of Care?

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• Professional negligence, or personal injury, cases are heard under a branch of civil law known as tort, derived from the French word for causing a ‘wrong’ or damage to others.

• Establishing a case for professional negligence or personal injury requires three conditions. These are:

1. existence of a duty of care between the professional, or employing agency, and the client, or patient, concerned

2. breach of that duty

3. resultant foreseeable harm, caused by the breach of duty of care

Law of Tort: Negligence

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• the harm caused by the therapist needs to be ‘a psychological injury’, i.e. a psychiatric condition as diagnosed by reference to an accepted diagnostic manual, such as ICD–10 or DSM–IV.

• The courts do not normally compensate for other feelings, such as annoyance, disappointment or distress, where this is the sole form of damage being claimed.

Negligence

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• In the UK, the legal system seems to be much more protective towards therapy, and inclined to give them the benefit of the doubt. In one case, Mr Justice Mustill declared that:

• “the duty is not to prevent suicide but to take reasonable care to that end – and the word is ‘reasonable’, not ‘perfect’. Thus there may well be cases in which the taking of no precautions is consistent with reasonable care.”

Negligence

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• During therapy, Landau had developed a strong emotional attachment to Dr Werner, and there was a period of social contact between them after the first part of treatment was ended, which included letters, discussion about a weekend away together, and visits by Dr Werner to her flat.

• She brought a successful case against him for £6,000 damages for personal injuries and pecuniary loss sustained by her as a result of wilful misconduct and/or negligence by him as her medical attendant.

• This was upheld at Appeal.• ‘Dr Werner, with the best intentions in the world, made a most tragic

mistake by introducing social contact…this was negligence on the part of Dr Werner’

Therapy Case Law: Werner v Landau (1961)

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• the Bolam case, the judges set a standard for negligence as:

• a failure to act ‘in accordance with a practice of competent respected professional opinion’.

• The evidence heard in the Werner case was that to introduce social contact, for whatever therapeutic purpose, could not be sustained as a viable form of treatment. From the expert witnesses heard, it was deduced that ‘the evidence of the doctors was all one way in condemning social contacts’

Therapist Duty of Care

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• Proving a case of negligence by establishing

a tort is notoriously difficult to achieve,

because of the difficulty in proving that the

breach of the duty of care actually caused

the injury suffered, rather than simply

preceded it in time.

• The client needs to prove, on the balance

of probabilities, that the breach of the duty

of care in therapy actually caused the

damage alleged

Law of TORT: Cause

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• the weight given to the concept of transference in a court of

law was accepted as a powerful and accepted part of analytic

treatment.

• The court was critical, not of the adoption of transference as

a method of working with the client, but of the doctor’s failure

to abide by accepted safeguards in its use. The necessary

safeguards, as agreed by a wide body of informed

professional opinion, included the avoidance of any

planned social contact outside the consulting room

Law of TORT: Cause

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• the weight given to the concept of transference in a

court of law was accepted as a powerful and

accepted part of analytic treatment.

• The court was critical, not of the adoption of

transference as a method of working with the client,

but of the doctor’s failure to abide by accepted

safeguards in its use. The necessary safeguards,

as agreed by a wide body of informed professional

opinion, included the avoidance of any planned

social contact outside the consulting room

Law of TORT: Cause

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• The legal notion of fault at work in tort law is an objective standard, based on what is perceived by judges to be reasonable behaviour, and which is therefore distinct from the personal qualities of the practitioner.

• In several cases, courts have decided that trainee practitioners have to provide the same duty of care as their more experienced or senior colleagues, on the ‘learner-driver’ principle (Nettleship v Western [1971]).

Law of TORT: Cause

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Standard of Care

• How are standards of care set by the courts, which may be unfamiliar with many aspects of professional or therapeutic skill and practice?

• The answer is through hearing the testimony of expert witnesses, who can advise the court on the appropriate standards or procedures to be expected of the practitioner.

• The weakness of this system is that it relies heavily on peer defence, and the evaluation of normative standards: level of practice of reasonably competent practitioners at that particular time.

• this could mean that the standard, while constituting the norm for practice, is basically flawed, or lacking in a convincing research or evidence base.

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• not engaging in exploitative or unethical conduct towards the client;• obtaining informed consent, or negotiating a therapeutic agreement, for work with the client;• acting within limits of own training, expertise and competence;• providing selection and skilled use of methods appropriate to the client’s situation;• not harming the client as a result of physical or psychological methods employed;• not giving inaccurate or damaging advice;• clarifying and maintaining agreed or agency limits to confidentiality;• making appropriate referral to another therapist or agency when required;• ending therapy in a way consistent with client’s best interests.

Elements of a therapist’s duty of care

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1. The standard of care expected of a trainee is not lower than that of a reasonably competent practitioner (Nettleship v Western [1971]; Wilsher v Essex AHA [1988]).

2. Criticism of one style of practice by an opposing approach is not sufficient in itself to brand the first as negligent (Maynard v West Midland RHA [1985]).

3. The standard required for specialist practitioners is that to be expected from an expert, rather than from a less skilled practitioner (Whitehouse v Jordan [1981]).

4. Expert witnesses must justify the rationale and evidence base for their assessment of competent practice (Bolitho v City and Hackney HA [1997]).

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Summary: Defining the standard of care in negligence cases

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how our solicitors help clients who have suffered injury• https://www.youtube.com/watch?v=lOZ_hJc4f3I• Lisa Jordan, an expert in medical negligence cases at

Irwin Mitchell, talks about how our solicitors help clients who have suffered injury or illness because of a medical mistake.

Safeguarding

Safeguarding

Safeguarding is a relatively new term which is broader than ‘child protection’ or ‘adult protection’ as it also includes prevention. Safeguarding has been defined as:

All agencies working with children, young people and their families, or vulnerable adults taking all reasonable measures to ensure that the risks of harm to children’s welfare are minimised;

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Where there are concerns about children or vulnerable adults welfare, all agencies taking appropriate actions to address those concerns

• A person ‘who is or may be in need of community care services by reason of mental or other disability, age or illness; and who is or maybe unable to take care of him-or herself, or unable to protect him-or herself against significant harm or exploitation’ (DoH 2000)

What is a ‘vulnerable adult’?

• There is a duty to protect children and vulnerable adults from abuse. Abuse can be defined as any behaviour which knowingly or unwittingly causes harm, endangers life or violates rights. Abuse may be physical, sexual, psychological, financial or material, or neglect.

• Safeguarding believes that adults and children have rights and that these should be respected and safeguarded. Supporting and working in partnership with agencies tasked with protecting children and vulnerable adults from abuse or harm.

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Safeguarding

• Having an appropriate staff and volunteer recruitment policy and procedure – ensuring that all staff and volunteers have had a Disclosure & Barring Service check (DBS). This replaces the old Criminal Records Bureau (CRB) checked and that no-one has contact with clients or their families before a satisfactory DBS report has been received.

• Ensuring that all groups irrespective of age, gender, disability, race, sexual orientation, nationality or economic status have the right to be protected from abuse

• Responding quickly and effectively to issues when they arise

Safeguarding

• Key principles• The welfare of children and vulnerable adults is the key concern – and the need to

protect them from abuse will override any other principles• It is the responsibility of everyone within the organisation to report any concerns that

they have promptly and to the correct agencies

• It is recognised that there may sometimes be a conflict between the applicable principles within the BACP guidelines, and that it is not always possible to reconcile all the principles. In these circumstances the counsellor will consider all the relevant circumstances and ensure that they can justify decisions about sharing information that are made.

• Wherever possible, client consent will be sought prior to disclosing any information. Whether this is possible will be considered on a case by case basis – and consent may not be required where there are exceptional circumstances due to the urgency or seriousness of the situation.

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Safeguarding

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READINGS

Core reading• Mitchels, B. & Bond, T (2010)• chapter 3 liability in Tort: negligence• chapter 4 contracts

• Bond, T. (2010) chapter 5 safety, negligence and insurance

• Jenkins (2007) 4 - Professional Negligence, Liability and Duty of Care

• Lindon, Jennie. 2012 Safeguarding and Child Protection Edition: 4th ed. London : Hodder Education. eBook. (EBSCOhost)

Advanced Reading• Bond, T. (2010) chapter 11 responsibility to oneself, colleagues and the

community

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