There is a regular flow of safeguarding issues being brought to light, resulting either from the criminal prosecution of a perpetrator or the publication of a review into historical abuses.
Headlines were generated when the PE teacher at a school in Hampshire, later also appointed assistant head and placed in charge of safeguarding(!), was recently jailed for 12 years for sexual relations during 2006-12 with 4 girls aged between 13 and 16.
Most recently Chelsea FC apologised for the terrible past experiences of some former players when publishing the findings of a review by Charles Geekie QC. He found that the club’s chief scout in the 1970s was responsible for sexual abuse of up to 23 boys aged between 10 and 17 in the club’s youth system. The scout, described as a “prolific and manipulative paedophile”, was sacked in 1979. The impact of his behaviour was compounded by the acts and omissions of the assistant manager. The latter was informed of an allegation about the scout, but the reviewer rejected the claim that senior staff at the club were alerted to the allegation by the assistant manager. He instead chose to visit the complainant and his family at their home, following which the complaint was dropped.
The principal lesson to be learned from these two recent examples is that an environment must be created in which any victim feels able to come forward. There must also be vigilance from colleagues; record checks alone are insufficient. Anyone becoming aware of an issue should be obliged to escalate it to the appropriate level.
In these examples of rogue individuals, it is straightforward to identify where the duty of care rests. This identification process is more problematic when considering the role of an institution or another organisation.
The duty of care is most simply defined as the responsibility to safeguard others from harm while they are in your care, using your services or exposed to your activities. In other words, acts must be avoided, or omissions rectified, which could cause harm. Such harm must be ‘reasonably foreseeable’.
An obvious and high profile example of the failure to fulfil this duty is that outlined by the Independent Inquiry into Child Sexual Abuse in their report into the abuse suffered by children in residential or foster care in Nottinghamshire from the 1960s to the 1990s. This report, which was also critical of Nottinghamshire police, outlined how neither Nottingham City Council nor Nottinghamshire County Council learned from their mistakes, despite decades of evidence and many reviews showing what changes were necessary. It concluded: “Children who were in the care of the Nottinghamshire councils suffered appalling sexual and physical abuse, inflicted by those who should have nurtured and protected them.”
A less obvious example is the duty of care in relation to adults, not children, which may be imposed on a university or college. In 2018 Bristol University introduced a pioneering suicide prevention scheme in the wake of some 11 Bristol students believed to have taken their own lives within a period of 24 months. Each student is requested to consent to the authorities alerting a named contact in the event of a mental health or other emergency. Under the tortuously, if accurately, named Mental Ill-Health Emergency Response Protocol, contact is made if concerns arise. These may be about self-harming injury, non-appearance over an unusual length of time or a mental health crisis. The Protocol amounts to an early warning system. Other universities are reportedly following suit. It appears to be so clearly needed that one is left wondering whether any of the earlier tragic cases might have been avoided by use of the Protocol?
Away from a residential context, it is less straightforward to establish the existence of the duty of care where services are being made available. Many lawsuits resulting from sexual assaults on cruise liners come before the US courts. These have been blamed on ‘all you can drink packages’ and poorly trained staff. In one case, a British woman sought compensation of $25 million from Seadream in respect of an alleged rape by the ship’s bartender. In another case, a girl aged 16 on a Royal Caribbean cruise alleged that, in the full view of staff, she was supplied with drinks by a group of male passengers before being “gang-raped”. She complained that the company had chosen “not to warn its passengers about sexual assaults or rapes on board so as not to scare any prospective passengers away.” The judge agreed that Royal Caribbean “knew or should have known about the danger of sexual assault aboard its ships”. These two cases would suggest that the description of such assaults as being at “epidemic levels” might not be wide of the mark.
Reality TV is perhaps the least obvious context in which the duty of care applies. Whilst a balance must be struck between welfare of participants and paternalism, producers and broadcasters appear to vary in the attention paid to welfare. The unhappy narrative is the recent suicides of participants who have previously appeared on the Jeremy Kyle show (now dropped) and on Love Island (going from strength to strength in the ratings).
The broadcast regulators are playing catch up. Ofcom is now consulting on updates to the broadcasting code. These would require broadcasters to take due care over the welfare, wellbeing and dignity of participants and to avoid causing them ‘unjustified distress or anxiety’. Paradoxically the regulator also referred to the imperative not to discourage producers from featuring people with vulnerabilities. This is a fine line for any programme maker to tread. However, these proposed updates merely reflect the duty of care which already exists at law.
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