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Wednesday 15 October 2014

When Must You Act to Prevent Harm to Another?

Is There a Legal Duty to Act to Prevent Harm?
In what circumstances do you have a duty to take action to prevent harm occurring to another? What I mean by this is in what circumstances might your failure to take action to prevent harm to another leave you committing a criminal offence? 

For example, if your elderly neighbour was ill in bed would you have any obligation to ensure that he suffers no further harm? Would it make any difference if you had never spoken to your neighbour in the ten years you had lived next to each other? On the other hand, how might your obligation differ if you were in the habit of popping in every day to check that everything was okay?  

If you think there is an obligation, just how far does it extend? Would it extend to no more than calling his doctor? Would your obligation to act go beyond this and if so how far beyond?  

The Position In English Law
In English criminal law offences are usually constituted by positive actions, although there are a range of exceptions where an offence involves not doing something. These are sometimes referred to as crimes of omission as opposed to crimes of commission.  

However, as a general rule there is no duty to act in English law. This raises a very interesting moral question: In what circumstances do you have a duty to prevent harm occurring to other people?  

As I said above, the general rule in English law is that there is no duty to act. In the words of Lord Diplock in the case of R v Miller 1983 “The conduct of the parabolical priest and Levite on the road to Jericho may have been deplorable, but English law has not so far developed to the stage of treating it as criminal.”  

Diplock was referring, of course, to the parable of the Good Samaritan. There have been calls for some time for English law to adopt a Good Samaritan principle, which would effectively impose on people a duty to act in certain circumstances. The law has so far refrained from so doing. 

There are, though, circumstances where a duty to act is recognised. There are a small number of circumstances where the law recognises that an individual or individuals will be under a duty to act even though other people in general would have no such duty. 

The example that is often given here is that of a man who sees his young son drowning in a shallow pool. The man has a duty to act to save his drowning child. The father has both a moral and legal obligation to act. On the other hand, other members of the public have no such legal duty – though the moral duty is still present. To reinforce the point that there is no legal obligation to act, the shallowness of the pool and the negligible risk of harm to anyone taking action is emphasised. 

There are generally believed to be four circumstances where there exists a duty to act.  First, where there is a legal duty to act (usually imposed by statute) on a person (for example on parents towards their children). Second, where a special relationship exists between two people. Third, where one person has voluntarily assumed a duty to act towards a second person. Fourth, where one person has assumed a duty by contract to act with regard to a second. 

Reliance upon Another
In all of these circumstances, there is a common theme. The common theme is that one person is in a position where he relies, and is entitled to rely, on a second to look after his well-being in some way. The precise nature of what is meant by well-being will vary from circumstance to circumstance. In some cases it may well be that both reliance and the obligation to act are reciprocal.

For example, a husband and wife, because of the relationship that exists between them, are each entitled to rely upon each other for support, comfort and protection. Each spouse also has an obligation to act to prevent harm occurring to the other. 

This reciprocal relationship may arise simple because two people assume the responsibility of looking after each other. More often than not, this responsibility will be assumed where people live together, but living together may not be an essential ingredient. Although this point may never have been decided in the courts, it could well exist between two neighbours who each assume the responsibility of looking after each other. 

It is not uncommon for the assumption of responsibility to care for someone to lie much more heavily on one person than the other. Responsibility may be assumed by more than one person (several members of one family, for instance). The elderly relative who lives with her family is much more likely to be the one who relies on the other members of the family for support and protection rather than the other way around.

Moreover, it is much more likely that a member of the family may be called upon to act to prevent or reduce harm to an elderly relative rather than the elderly relative doing the acting. In the usual course of events this is true. However, a situation may well be conceived where a member of the elderly relative’s family is at risk of harm and it is she (the elderly relative) who bears the burden of having to act.  Of course, the physical and mental health of the elderly relative may place a lower burden on her in terms of what action is expected than would be placed on a younger member of the family.

It is not possible to draw up an exhaustive list of relationships, circumstances and combined relationship-circumstances that entitle people to rely upon each other for such assistance, when this might be required, that failure to provide the assistance would constitute a crime. Equally, it is not possible to draw up a list of what actions the law might require to be carried out. Again, this will vary with the relationship, circumstances and the people involved.

Garry Costain is the Managing Director of Caremark Thanet, a domiciliary care provider with offices in Margate, Kent. Caremark Thanet provides home care services throughout the Isle of Thanet. Garry can be contacted on 01843 235910 or email garry.costain@caremark.co.uk. You can also visit Caremark Thanet's website at www.caremark.co.uk/thanet.


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