A Scottish case around liability for care

Introduction

Turning Point Scotland (charity) operated a facility in Glasgow offering help and accommodation to homeless people with an addiction to alcohol. Francis Hughes suffered from severe alcoholism and died in their care within hours of admission.

Facts

Mr Hughes was assessed and offered a place in the charity’s Crisis Residential Unit (CRU). He required alcohol detoxification medication, which was not available at the CRU, and had to be sent for after medical assessment.

After his admission, he was checked on hourly, but at the last check, he was unresponsive, and then died. At this point, he had not received any medication because it was still at the pharmacy, ready for pick-up.

The Claim

The Damages (Scotland) Act 2011 allows the family of a deceased person to claim damages where the negligence is shown to have caused or contributed to the death.

Mr Hughes’ immediate family sought damages from the charity on the grounds that the charity, and separately an employee of the charity (for whose actions the charity was vicariously liable), failed to exercise reasonable care in their dealings with, and treatment of, Mr Hughes.

In particular, the family claimed that the charity had a general duty of care to not assess or admit a person such as the deceased to their facility.

If that was incorrect, then there was a duty to provide a safe system for the admission and treatment of him.

Finally, they claimed the defenders were vicariously liable for the failures of their employee whom, they said, ought to have obtained detoxification medication immediately, and, if that was not possible, to have called an ambulance.

Decision

The Court found in all respects for the charity.

This was a novel situation and an assessment of whether a duty of care exists in such a situation (where the existence of a duty of care was not previously established in law) involved a consideration of what is fair, just and reasonable in the circumstances. The Court had regard to the fact that this was a homelessness charity which assisted with alcohol detoxification, but had limited staff and other resources.

The Court concluded that the charity had assumed responsibility to provide the deceased with a bed, to request medication for the deceased, and to administer that medication in the event that it was prescribed. The charity had not, however, assumed responsibility for the welfare of the deceased more generally.

The Court rejected the family’s argument that the charity had assumed responsibility for providing a safe detoxification. The charity had not accepted responsibility for the deceased in the same way as a hospital would and there was no evidence suggesting that the deceased thought they were doing so. Therefore, there was no general liability.

Was there a general duty to have a safe system in place? There was no evidence to the effect that the imposition of a duty to have a ‘safe system’ would still allow the defender to continue to deliver its service. In fact there was evidence to the contrary. The charity did not operate a hospital, and the same standards should not be applied to it.

As to vicarious liability, it was accepted that the employee had a duty to exercise reasonable care in his dealings with Mr Hughes. But was there a breach of this duty? It was held that there was not.  The staff member had reacted reasonably in all the circumstances, and took reasonable care in responding to Mr Hughes’ presentation at the charity.

The third issue was that of causation. The burden rested with the family to prove on the balance of probabilities that, if any breach of duty which the Court found to have occurred had been avoided, Mr Hughes would not have died. The evidence suggested that the cause of death was cardiac arrhythmia rather than alcoholic seizure. Moreover, the family failed to show any evidence to prove that the deceased would not have died if he had been given medication, had not been admitted to the charity’s facility, or had gone to the nearest hospital emergency department.

Therefore, the charity had no liability to the claimants for the death. No duty of care was breached by the charity, or its employee individually, as they had not assumed responsibility for the deceased’s general welfare.

Lessons

In Australia, the law is different to Scotland with various statutory state civil liability provisions which will affect the determination of liability and may also offer some protection to volunteers.

However, it is important for charities that care for vulnerable persons to clearly establish the scope of their care and insure that they discharge their duties to such persons. In this case, the charity and its staff were able to establish to the satisfaction of the Court what exactly was the basis of their care and that they abided by established policies and procedures.

2019-06-27T09:13:31+00:00June 27th, 2019|