Suffering in Silence… Neglect and Abuse in Care Homes
How You Can Find a Voice
Rochdale, Rotherham, Orchard View. The names of these care homes may be familiar to you after cases of abuse and gross neglect were exposed by the authorities. But the names of the victims are forever silent. Last week saw the trending of #HerNameWasReevaSteenkamp as a response to the innumerable stories in the media concentrating on the consequences of a five year jail sentence for Oscar Pistorious, while completely ignoring the real victim of the crime, Reeva Steenkamp and her family. In the last few years, the same plight has befallen some of the most vulnerable members of our society, the young and the elderly, unnamed victims left to suffer physical, sexual and mental abuse within the very institutions designed to protect them: Care Homes.
However, if you or one of your relatives have suffered from neglect or abuse within a care home setting, then you have the right, not only to speak out and confront the people responsible for causing suffering and harm, but to claim compensation for the suffering they have caused by failing in their duty of care to you or your relative.
The Duty of Care Owed to Residents
In order to bring about a claim for compensation against a care home facility, you must be able to establish that the organisation:
- Owed a duty of care;
- The care home breached that duty of care; and
- Due to that breach you (or the victim) suffered harm
Do the Owners of a Care Home or the Relevant Local Authority Owe a Duty of Care?
In the case of abuse or neglect in a care home, it is usually one or two staff members who fail in their duty of care to a resident. For example, in the shocking case of the Orchard View Care Home where an inquest found the neglect of elderly patients caused the deaths of five residents, it was the employees who committed the actions of neglect by, for example, leaving one patient on the toilet, then forgetting about her and using sticky tape to dress a patient’s wound. However, under the doctrine of vicarious liability, it is well established that the owners of the care home are responsible for the negligent or abusive actions of their employees as long as the employee was acting in the course of their employment and their actions caused the claimant harm.
The recent case of Woodland v Essex County Council [2013] in the Supreme Court also ruled that local authorities had a non-delegable duty of care when it came to the care of vulnerable members of society such as the elderly and children, and are therefore still liable for a breach of that duty, even if the service in which the breach occurred had been contracted out to a third party. In his judgment, Lord Sumption stated that both “principle and authority suggest that the relevant factors are the vulnerability of the claimant, the existence of a relationship between the claimant and the defendant by virtue of which the latter has a degree of protective custody over him, and the delegation of that custody to another person”.
Depending on the circumstances of the situation, the care home employee, the relevant local authority, or both, may be liable if abuse or neglect in a care home has occurred. For example, when historical abuse allegations were made against childrens’ care homes in North Wales (known as Operation Pallial), two local authorities, a health authority and two private companies faced compensation claims from victims. Even though these entities did not directly perpetrate the abuse, by failing to protect the children in their care, claims for compensation were able to be brought against them.
Proving a Breach of Duty Occurred and the Reasonable Person Test
The next step in making a claim for compensation where neglect or abuse has occurred within a care home setting is proving that a breach of duty occurred. The court will apply the ‘reasonable person’ test in order to establish whether the defendant has breached his or her duty of care to the claimant. The court will ask itself, “would a reasonable person, given similar circumstances, have acted or neglected to act in the same way as the defendant had functioned?” When applying the reasonable person test the court will look at factors such as the capacity of both the claimant and defendant, and accepted industry standards.
The burden of proof required is on the balance of probabilities, however, because the residents of care homes are often very elderly and suffering from dementia, or very young with a history of anti-social behaviour, it can be difficult for the victims and/or relatives to persuade others to believe them when they complain of abuse or neglect.
In some cases, family members have been so concerned about the abuse and neglect of their elderly relatives; they have resorted to installing secret cameras within the care home concerned in order to see for themselves how staff are caring for their relatives. Recognising the value of such surveillance, the Care Quality Commission stated at the end of last year that it was prepared to “hold discussions over the potential use of surveillance in care homes” but made it clear that the use of surveillance would only be appropriate if there were concerns about certain staff members’ treatment of vulnerable patients. The use of cameras led to the jailing of a staff member at Oakfoss House, a residential care home in Pontefract, West Yorkshire in 2012 after she was caught hitting, shaking and verbally abusing an 89 year old women suffering from dementia.
Showing Causation
The final element a claimant must show in order to make a successful claim in the courts for compensation against a care home facility is causation. In simple terms this means that the claimant must prove, on the balance of probabilities, that the abuse or neglect suffered in the care home caused him or her damage.
The starting point for establishing causation is the ‘but for’ test. The court will consider the question, “but for the breach of duty by the defendant, would the claimant have suffered any damage?”
The defendants actions do not have to be the sole cause of the claimant suffering damage, however, their abuse or neglect must have materially contributed to the harm suffered by the victim.
Limitations on Claims
Personal injury claims are subject to the provisions of the Limitations Act 1980. This Act provides that claims for personal injury must be brought within three years of the event occurring. In the case of childhood sexual abuse claims, the three year period starts to run the day the child turns 18 years old.
It is important to note that the court will consider claims on a case by case basis, especially in cases involving sexual abuse against a child.
Abuse or neglect suffered within a care home can have devastating, long term consequences for both the victim and their families. It is important to realise that you do not have to suffer alone or in silence; help and compensation are available.
If you wish to find out more about bringing a claim for abuse or neglect suffered within a care home you can call us on 020 3588 3530 to talk with one of our personal injury specialists in complete confidence. We offer no win no fee arrangements to ensure all our clients receive full access to justice.
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