I am sure that legal minds are now working hard since I first injected the idea of coporate manslaughter into this debate. As with any legal exercise, the opponent or the adversary, would try to put forward a defence. However, with some laws, there are legal defences built in. For instance, under the Mental Health Act 1983, section 139 provides a series of legal defences, one of which is that the action of the Approved Social Worker was done in good faith. However, this thought would have been present at the time of the act or the omission of it.
I am sure therefore that if any legal challenge is mounted lawyers will go through the legislation to see what is on offer. The fact that training was provided may not even be a legal defence however, only a test case would clarify what this coporate manslaughter law actually offers. Laws can be interpreted in several ways, including what is called the 'mischief rule'. Since this law, according to popular belief, took 11 years to hit the statute books, there must have been overwhelming evidence and intention to deal with employers who would do just the least of what is expected of them in terms of health and safety.
It is no good relying on providing training if there is record of the employers systematically ignoring or only paying lip service to what that training requires. I attended a training once on lone working. During this training it was revealed that fellow social workers had visited an address and to their surprise, they ended up looking down the barrel of a shotgun. Although it was true that the CMHT did not have a previous knowledge of this address, it transpired that other departments of the Council did have some information. The fact that they did not disseminate the information to all who needed to know could be challenged. The shotgun incidence is an extreme case but ever so often Councils do get reports about unsocial behaviour relating to individuals or particular locations. It would be expected that a reasonable employer, who owes a duty of care to his/employees, would make this information available to the workers who may put themselves at risk by visiting these locations.
I also had another experience which challenges the notion of doubling up on home visits. I volunteered to accompany a female colleague on a home visit, the aim of which was to help a woman she had helped place in a residential care collect some of her personal belongings from her previous address. This address was managed by a Housing Association and there was staff on sight. When we arrived, two women, who happened to to be the daughters of the lady concerned appeared (we were not expecting them) and without the slightest provocation, while my colleague was talking to the Housing Association staff, one of the daughters took a swing at my colleague, which caught her right in the face. At the second attempt I intervened and blocked her off. My colleague was in shock and was helpless. I called the police, who took ages to come and when they eventually did, they appeared to side with the aggressor, taking her aside and leaving us baffled as to when they were going to ask us what happened. To cut this story short, nothing came out of it eventhough we ticked all the RIDDOR boxes.
What this incidence demonstrates to me is that employers need to do more than just train staff to be risk aware. They need to create the condition that would ALWAYS make it possible to manage these risks without putting extra pressure on the workers.