Counsellinga nd the Law Lecture 2 the Law of Tort

1. Law of TORT: Duty of Care
Law for Counsellors
Kevin Standish
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2. 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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3. Duty of Care ?
• 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?
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4. Duty of Care?
• 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.
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5. Duty of Care?
• 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.
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6. Law of Tort: Negligence
• 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
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7. Negligence
• 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.
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8. Negligence
• 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.”
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9. Therapy Case Law:
Werner v Landau (1961)
• 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’
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10. Therapist Duty of Care
• 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’
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11. Law of TORT: Cause
• 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
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12. Law of TORT: Cause
• 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
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13. Law of TORT: Cause
• 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
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14. Law of TORT: Cause
• 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]).
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15. 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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16. Elements of a therapist’s duty of care
• 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.
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17. 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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19. 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.
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20. Safeguarding

21. 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;
and
Where there are concerns about children or vulnerable adults welfare,
all agencies taking appropriate actions to address those concerns

22. What is a ‘vulnerable adult’?
• 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)

23. Safeguarding
• 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.

24. 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

26. 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.

27. 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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