Liability of the OHA

Professor Diana Klossbarrister

Legal and ethical duties

• The law imposes legal duties, the professions ethical duties

• Mostly they are the same, but ethical duties may sometimes go further

• Eg there is no general duty to report criminal behaviour to the police, but health care professionals have a duty to report wrongdoing by colleagues which puts patients at risk

• (this may soon be made a legal duty as well: Francis Report)

Criminal law

• Common law manslaughter

• Section 7 Health and Safety at Work Act 1974• Section 36 Health and Safety at Work Act 1974• R v Lockwood (2001)• R v Hooper (2004)

Civil liability for negligence

• A duty of care is owed by anyone who can reasonably foresee that his acts or omissions might harm another

• It is a duty to take reasonable care (the care of a reasonable OHA)

• To prevent foreseeable loss or damage• Stokes v GKN (1968)• Brown v Rolls-Royce (1960)• Prendergast v Sam and Dee (1988)

Duty of care to whom?

• Job applicants?• Kapfunde v Abbey National 1998)• Workers?• Sutton v Population Services (1981)• Contractors?• General public?• Palmer v Tees HA (1999)

Duty of Confidence

• This is a legal and an ethical duty• It arises both under common law and the Data

Protection Act• The duty is to keep information confidential

except• With consent (which must be informed)• Where a court or tribunal has ordered disclosure• Where there is a statutory duty to disclose• Where disclosure is in the public interest

Discrimination law

• Equality Act 2010• The OHA might be personally liable for harassment,

eg by offensive name-calling• The OHA might be liable under section 110 or

section 112• A person who knowingly helps another to break the

law is equally liable, eg an OHA who gives access to confidential health records to a manger without consent so that the manager can reject the disabled job applicants