Partnership working arrangements involve employees of councils and NHS bodies working closely together. Does this lead to the bodies sharing responsibilities for each others’ staff? A recent Court of Appeal decision (Selwood v Durham CC, Tees, Esk and Wear Valleys NHS Foundation Trust & Northumberland, Tyne and Wear NHS Foundation Trust, July 2012) shows that this is a legal possibility.
Ms S was a social worker employed by Durham Council. She was working with the children of Mr B, a service user with a serious mental illness. Therapeutic and child protection approaches were being pursued. The social worker’s role was largely protective. Alongside this, two NHS trusts were involved in providing mental health services for Mr B and his family.
The council and the NHS trusts had signed up to a joint working protocol. This addressed disclosure of confidential client information. It noted that disclosure might be necessary if a person’s health or safety was at risk.
Mr B threatened violence against the social worker. This culminated in him telling NHS clinicians that if she came to a hospital mental health review meeting he would ‘kill her on the spot’. The social worker alleged that this information was not disclosed to her. Shortly after the meeting, Mr B was allowed to leave hospital. He arrived unannounced at a case conference and stabbed the social worker. Subsequently, Mr B was convicted of attempted murder.
The concept of a ‘duty of care’
The social worker brought a negligence claim against the two NHS trusts. She argued they were liable for wrongfully failing to warn her of the risks posed by Mr B. The trusts said the claims should be struck as they did not have a real prospect of success.
The NHS trusts’ argued that that they did not owe a ‘duty of care’ to the social worker. The existence of a duty of care is an essential element of any negligence claim and, without it, a claim cannot succeed. The trusts argued that it was legally impossible for them to owe a duty of care to a non-employee such as the social worker.
Initially, a judge accepted the NHS trusts’ argument and struck out the social worker’s claim. The Court of Appeal disagreed and allowed the claim to proceed, ruling as follows:
“It would be open to a trial judge (having considered the whole of the protocol and having heard evidence about how the working arrangements operated in practice), to conclude that [the NHS trusts] had assumed responsibility to do what was reasonable in the circumstances to reduce or avoid any foreseeable risk of harm to which an employee of a co-signatory was exposed in the course of their joint operations.”
What does the decision mean in practice?
The decision suggests that public bodies engaged in joint-working activities may owe more extensive legal obligations to the employees of partner organisations than might previously have been assumed.
More specifically, the case reminds care partners that where one of them obtains information that suggests another’s employee may be at risk it should not be assumed that disclosure outside the provider’s organisation is always prohibited. Sometimes, the case for disclosure may be compelling. Joint working protocols should reflect this possibility.
Ed Mitchell is a solicitor and general editor of the Journal of Community Care Law