03/05/2019

Any incident or allegation of abuse in a care setting is inevitably going to be emotive and highly charged. How local authorities and their legal teams deal with such incidents or allegations can make a crucial difference, both to the welfare of the individual (which must be the prime concern) and the outcome of the case itself.

Whatever stage of life they are at, whether young or old or suffering from a disability or the long-term consequences of abuse, such individuals are going to be vulnerable in some way. This only intensifies the burden of responsibility that the institution – and local authority – has.

In my experience gained from working on many abuse cases, there are certain common themes and issues that local authorities must deal with.

The extent to which the employer is responsible – In many ways, from a local authority perspective, this is the key question. Many abusers carry out their acts in a covert way over an extended period of time. The question inevitably arises: should their employer have been aware there was a problem and acted to prevent it? Employers need to be able to show that they have systems in place that are sufficient to monitor the behaviour and conduct of staff and pick up on warning signs. This is more than just a case of vetting through CRB checks. Systematic processes should be in place to review staff conduct, obtain feedback from others, and monitor on an ongoing basis. If an employer cannot show they have such measures in place, it will weaken their defence significantly.

Acting quickly and within the time limits – If allegations and suspicions start to arise in connection with an individual, the question also arises: at what point is there sufficient evidence to launch an investigation? There is a three year time limit in which to act from the point at which an employer learns of a problem. The clock starts ticking from that time. But victims often block out things that have happened and do not want to cooperate with an investigation: they often disassociate themselves from it as a kind of self-defence mechanism. This means that gaining evidence can be challenging. Authorities need to make a decision over when to act, but this is not always straightforward.

Abuses of human rights – Abuse cases are not limited to sexual abuse or physical violence. We are increasingly seeing prosecution lawyers bringing cases on behalf of their clients for infringement of human rights, such as holding people against their will, excessive restraint of individuals, or holding people in a mental health unit when they claim they are mentally sound.

Where a vulnerable individual is not capable of speaking out for themselves – due to a disability or mental health issue for example – this will only exacerbate the case, particularly if the alleged abuse has been going on for a long period of time. Every individual needs to be given a voice, someone to speak out for them. This is a subject that has been exercising the courts significantly recently. Has the local authority made proper provision for a social worker or child protection officer to take an active interest in an individual’s case and look out for their needs? This can be challenging when budgets and resources are so stretched.

Abuse cases are not restricted to institutional settings, however. Some cases where the local authority gets drawn in concern private individuals to whom the authority owes a duty of care – perhaps a domestic abuse case. Did the authority take sufficient steps to monitor the individuals’ welfare and put in place measures to prevent abuse from occurring?

There is also the question of compensation. There are tariffs that can be used, or different forms of redress but estimating how much compensation is due can be a tricky area. It can be difficult to quantify how much an individual has suffered because of any alleged abuse. Authorities often have to ask themselves how much time and effort they are prepared to put in to go back through historical care records and other documents - that can difficult to track down and obtain - in order to assemble their case for the court to consider.

Dealing with abuse cases is a difficult area, where both the human and financial stakes are high. Authorities need to strike a balance between, on the one hand, not creating an excessive ‘nanny state’ in which individuals are not free to make their own choices and, on the other, not negligently giving vulnerable people too much latitude to make mistakes. At the same time, they need to ensure they have robust systems and review mechanisms in place to prevent abusers as far as is reasonably possible. It is a challenging brief that authorities must do everything they can to live up to.

 

Julia Jones will be presenting at EM Lawshare Abuse Claims Seminar on 14 May