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The author is not a qualified lawyer: the opinions expressed here are based on textbook or internet research. No criticism of Southern Health is implied or intended: individual cases must be treated on their own merits and judged accordingly. Those who feel wronged by Southern Health are urged to obtain independent legal advice from solicitors or (under the Bar Council’s direct access scheme) Counsel.

Corruption (added 24 January 2016)

We discuss here the meaning of ‘corrupt’.

Corrupt:[1]

  1. Willingly to act dishonestly in return for money or personal gain.
  2. Evil or immoral*
  3. (Of a written work or computer data) made unreliable by errors or alterations.

* Antonym of immoral:

Moral:[2]

  1. Concerned with the principles of right and wrong behaviour.
  2. Following accepted standards of behaviour.

Legal clarification:[3] 

  1. SHNFT is a separate entity and a legal person in its own right.
  2. Personal gain includes keeping money that a person already has. For example, if by dishonesty, SHNFT avoids paying compensation, it has made a personal gain.

The standard of care owed by professionals:[4]

“The test of negligence is not the test of the reasonable man on the top of a Clapham Omnibus…. The test is the standard of the ordinary skilled man exercising and professing to have that special skill.”

Definition of professional:

‘Professional’ in this context is not limited to traditional ‘professions’ – doctor, lawyers, accountants etc. Nor is it a requirement that a professional receives remuneration.

For example, an amateur rugby union referee before the professional era was a ‘professional’ in law because he professed expertise in the laws of the game. He had a duty of care and was liable if a player was seriously as a result of his failure to enforce the laws of the game.[5]

In short:[6]

The test of negligence for SHNFT employees, Directors and Governors is not limited to what they know: it is what they should know as persons who exercise and profess to have the special skills required by employees, Executive Directors, Non-executive Directors and Governors of an NHS Foundation Trust. This is commonly known as the ‘knew or should have known test for negligence.’

(Authors note): later case law added a test of proximity. However, in an hospital setting, proximity is unlikely to be an issue unless a very distant relative of a patient, who the Trust might not even know, filed a claim in negligence on the basis they too were owed a duty of care. So far as patients, their Executors (where relevant) and immediate family members (such as parents and dependants) are concerned, lack of proximity is unlikely to succeed as a defence.

[1] Oxford English Dictionary   [2] Oxford English Dictionary   [3] Common law & The Fraud Act 2006   [4] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118[5] Smolden v Whitworth & Nolan [1997] PIQR P133 & Vowles v Evans [2003] EWCA Civ 318 [6] Bolam v Friern Hospital Management Committee [1957] 2 All ER 118

Qualified Privilege (updated 24 January 2016)

Most are aware of Absolute Privilege that protects statements made in both Houses of Parliament from claims for defamation, originally confirmed in The Bill of Rights 1689 and subsequently extended by The Parliamentary Papers Act 1840 and section 9 of The Defamation Act 1952.

After Southern Health’s Board Meeting on 11 January 2016, a journalist tipped me off that Qualified Privilege applied to the Board and previous Council of Governors meetings.

As always, I must emphasise that I am not a qualified lawyer but my textbook[1] suggests he is right. Qualified privilege has been held to arise for example to:

  1. Common interest, i.e. where a statement is made by a person who is under a legal or moral duty to communicate it to a person who has a similarly legitimate interest in receiving it.
  2. Statements made in protection of one’s own private interests.
  3. Statements made by way of complaint to a proper authority, e.g. complaints to officials of local authorities and professional bodies.

It appears to me that statements made to Southern Health officials at public meetings by, for example, Sara Ryan would be covered by Qualified Privilege, especially because there are serious common and public interest issues being investigated and discussed – the safety (or not) of patients.

However, there is an over-riding requirement that does not apply to Absolute Privilege.

In Qualified Privilege, a person is entitled to communicate a defamatory statement so long as he does so honestly and reasonably with regard to the words used and without malice.

Thus (in my opinion) the alleged description of Southern Health as “Killers” would be malicious (it implies intent rather than neglect) but likening a certain Southern Heath doctor put in charge of the duty of candour to putting Ronnie Biggs in charge of a mail train, or describing certain actions as corrupt, are honestly held beliefs (and incidentally provable). I will do a separate posting on the meaning of ‘corrupt’ when time allows.

Remember also that defamation is a civil offence so the civil test of ‘the balance of probabilities’ applies. This means that provided it is more likely than not (i.e. 51% certain) that the statement is true, it is not defamatory – in such circumstances, the issue of Privilege (Absolute or Qualified) does not arise.

[1] Smith & Keenan’s English Law 13th Edition© Denis Keenan published by Pearson Education Ltd.