Liability of the OHA
Professor Diana Kloss
barrister
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
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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?
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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