How to run a successful Service User claim- A Claimant’s Perspective

The Law  –

Section 4.3(8) of the Pre-Action Protocol for Low Value Personal Injury (Employer’s Liability and Public Liability) Claims. This Protocol does not apply to service user claims and it states such claims for damages in relation to harm, abuse or neglect of or by children or vulnerable adults are exempt. These re cases where CNF’s are not warranted

Definition:-

The HSE defines violence at work as:

“Any incident in which a person is abused, threatened or assaulted in circumstances related to their work.”

According to the HSE, workers most at risk from workplace violence are those in the following types of jobs:

  • Giving a service,
  • Caring,
  • Education,
  • Delivery or Collection,
  • Cash Transactions,
  • Controlling,
  • Representing Authority

Employers have a duty of care to protect their employees under the Health and Safety at Work Act 1974. This act states that employers are expected to take reasonably practicable steps in order to safeguard their employees against any foreseeable dangers in the workplace, including the risk of them being assaulted at work. “Reasonably practicable steps” depends upon the degree of risk that the employee is exposed to on a daily basis and the chances of them coming to some form of physical harm in the process.

What is an attack by a service user?

An unprovoked act of violence that has been committed by a patient , customer or client. Any incidence of physical assault in the workplace constitutes a workplace assault. There tends to be a reluctance within the care industry to report all incidents of violence, with some simply accepting this as part of the job. However, it’s really important to note that this is not part of the job and no one should expect to be assaulted while they’re at work.

While it’s possible for a workplace assault to occur in most work environments, some jobs do carry a greater risk than others such as health and social care workers who provide care to members of the public with complex needs who may be exposed to a higher level of risk than those working in an office, for example.

Those working in the health and social care sectors tend to be at a higher risk of assault because they are working with people in what are often difficult circumstances such as individuals who are unstable, under the influence of drink or drugs, have behavioural problems or have violent tendencies. Or it may be that service users and their families are suffering high levels of stress and anxiety. Service users might also become angry, confused or frustrated if they cannot properly express themselves or carry out tasks independently. sault by

Workplace assault in the care industry are vast and varied, but some of the most common incidents could include:

  • A service user refusing treatment and lashing out at staff who attempt to administer this
  • A carer being physically assaulted by a service user with learning difficulties while they are providing care
  • A catering assistant or cleaner being physically assaulted by a service user who is frightened or confused about who they are.
  • It’s important that all incidents of workplace assault are reported, no matter how minor they may seem. This will help employers to establish areas of risk and recognise steps that can be taken to reduce these risks. So if a client advises they haven’t reported the matter, we must advise them to do so.

Types of service user cases:

There are a number of circumstances where a person can be assaulted at work such as:

  • Violence at work- care homes, private premises- care workers
  • Licensed and retail premises- bars, pubs, restaurants, casinos, bookies
  • Public bodies- schools, nursing homes, care homes, prisons
  • Security enforcement- security guards, bouncers,
  • Attacks can be from colleagues, customers or service users.

Obligations on employers- Risk Assessments:

  • Employers have a ‘duty of care’ to ensure the safety of employees and should take reasonable steps to ensure that safety standards are met.
  • Where a patient / service user has a history of violence or has exhibited violent and aggressive behaviour, it’s important for employers to assess any risk of physical assault that may be posed. Comprehensive risk assessments should be carried out and steps should be taken to reduce these risks wherever possible. For example, if a service user poses a greater risk than others, then it’s important for the employer to consider how many staff should be allocated to care for that individual. It’s also important for the employer to ensure that these members of staff are properly trained, for example in physical restraint techniques and de-escalation methods with the focus being on the needs of the individual service user and not generic.
  • It is necessary to establish that there was a foreseeable risk of such an assault but that the employer failed to take reasonably practicable steps to reduce that risk.
  • Employers are expected to carry out suitable risk assessments for any tasks that their employees may have to undertake throughout their working day. Even if a Risk Assessment is in place, should this not be sufficient or fit for purpose, the employer can be held responsible. If an employer is aware of potential risks to an employee’s safety and has not taken reasonable steps to address these risks, resulting in the assault, the employee is most likely to be successful in their personal injury claim for compensation.

Making a Claim

Disclosure to consider when dealing with a service user claim:

  • Training: – Many working environments require adequate training on how to deal with individuals that could be potentially difficult or dangerous. If the claimant has not been trained in such matters, the employer has knowingly put them at risk
  • Lack of personal protective equipment (PPE) – All employees need to be provided with adequate PPE for their working environment. This is especially the case when there is a heightened risk of violence. All equipment should also be in good working order. This could include panic alarms and stab vests. It is the employer’s responsibility to provide PPE, as per law, and they cannot demand any financial contribution from the claimant. If they have failed to provide the PPE the law demands, they could be responsible for the assault
  • Ignoring a record of violent behaviour – Has the Defendant ignored a violent behaviour record? If someone has shown signs of violence and the defendant is aware of this, yet they did not take any actions to protect the claimant, they could also be liable. The same applies if the claimants place of work has been vulnerable to an attack before, such as a robbery, yet no added security measures have been implemented. It also applies in cases where there have been attacks in schools and the behavioural log/safeguarding file hasn’t been updated to include all relevant information.
  • Understaffing – If the claimant is left to work alone or in an environment that was understaffed to dangerous levels, the employer could have put them in jeopardy of an attack or an assault. Security guards, carers, and prison officers tend to be most at risk of such an incident, as their job involves dealing with challenging behaviour.

Advice to Client when dealing with a service user claim

  • Visit a medical professional – The medical report the doctor provides will document the injuries, as well as the recommended course of treatment and the severity of the This will then be used to determine how much compensation the client will receive.
  • Get witness contact information – Did anyone witness the assault? If so, it is important to get their contact information, their name, address, and telephone number. Witness statements can really help to strengthen the case.
  • Make notes about the incident – As soon as you get the opportunity, it is a good idea to make a note of what happened. Don’t leave anything out. This will ensure that you do not forget anything important later down the line.
  • Keep proof of expenses – You will need to keep proof of all of the expenses you have encountered as a direct consequence of the incident. This can be anything from loss of income and counselling expenses to the cost of travelling to the hospital and childcare expenses. So long as the expense occurred due to the assault, it can be claimed.
  • Report the incident to your employer – The client should report the incident to them. All employers are required to keep an accident book by law, and the incident will need to be recorded in there. Plus, this helps to prove that the assault did take place.

Documents to request from the Defendant

  • Risk assessments for the service user, pre-incidents/post incident assessments. Often these can’t be disclosed without the patient consent. The service user may lack capacity to consent in which case, the legal guardian/parent must provide consent. Due to the safeguarding of confidential information, Defendant’s rarely disclose service user information in the absence of a Court Order and an application must be made to the Court.
  • Behaviour plans and care management plan/safeguarding file- need to identify if a careful and concise history has been provided outlining any relevant risk factors, hazards, control measures in place in order to minimise any risk. This is particularly true if the employer was aware of the risks and did not take reasonable steps to address these.
  • Training records for Claimant: are they appropriately trained to deal with the service user in question- including all videos, demonstrations and slides.
  • Staff rota’s and guidance as to necessary staffing levels – Do they meet the care needs of their employees. All training for relevant staff on duty on the day of the incident
  • Defendant policies on caring for the service user/vulnerable person such as Management of violence and Aggression, etc.
  • All remainder standard disclosure to include Incident form, accident report, Riddor report, CCTV. This list is not exhaustive.

Practical tips when running a claim:

  1. Important to obtain a contemporaneous statement on such cases, to deal with matters whilst fresh in the client’s mind, such as the nature of the attack, who they reported the mater to, the circumstances of the incident, number off staff available, whether it was sufficient, details of any witness or colleagues
  2. When considering medical evidence, provide a detailed letter to the expert, dealing with any disclosure that we have had and also outlining clients training any history of accidents/incidents that may have occurred with the service user that the claimant maybe aware of. Must also ensure we ask expert for a referral to psychologist/psychiatrist if the Claimant has sustained psychological injuries. Often the Claimant can’t return to the caring sector or perhaps not in the same care facility which can also impact on ability to return to work
  3. Impact on financial losses, earnings, care, potential future earnings and earning capacity. Must ensure that the medical expert is also advised of time off and can advise on the claimants ability to return back to work.
  4. Always write to Health and Safety Executive to see if a report has been prepared and filed and request from the outset of the claim.
  5. When case is issued, request all service user records/behaviours plans as part of standard disclosure and incorporate it into your directions.
  6. Please note that these are cases where early involvement from Counsel should be sought. Once denial and disclosure has been received to consider prospects.

Advice to clients who are concerned about making a claim against their employer

  • It is against the law to discriminate against an employee or to terminate the employment of an employee because the employee made a personal injury claim.
  • A workplace assault can be an extremely traumatic experience, which can leave a person feeling vulnerable and unsafe. The psychological and physical toll can be monumental. It can also impact a person’s ability to work in the future.
  • Employers in England and Wales are required by law to have Employers Liability insurance cover to protect people from injuries at work. When work related personal injury compensation is paid out, in the majority of cases, the compensation is paid by the employer’s liability insurance company and not the employer.

 

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